THE DIRECTOR OF RELIGIOUS AFFAIRS, complainant, vs.

ESTANISLAO R. BAYOT, respondent.

Solicitor General De la Costa and Solicitor Feria for complainant.
Francisco Claravall for respondent.
SYLLABUS
ATTORNEYS AT LAW; SOLICITATION OF BUSINESS FROM THE
PUBLIC. It is undeniable that the advertisement in question was a flagrant
violation by the respondent of the ethics of his profession, it being a brazen
solicitation of business from the public. Section 25 of Rule 127 expressly
provides among other things that "the practice of soliciting cases at law for the
purpose of gain, either personally or thru paid agents or brokers, constitutes
malpractice." It is highly unethical for an attorney to advertise his talents or
skill as a merchant advertises his wares. Law is a profession and not a trade.
The lawyer degrades himself and his profession who stoops to and adopts the
practices of mercantilism by advertising his services or offering them to the
public. As a member of the bar, he defiles the temple ofjustice with mercenary
activities as the money-changers of old defiled the temple of Jehovah. "The
most worthy and effective advertisement possible, even for a young
lawyer, . . . is the establishment of a well- merited reputation for professional
capacity and fidelity to trust. This cannot be forced but must be the
outcome ofcharacter and conduct." (Canon 27, Code of Ethics.)

DECISION

OZAETA, J :
p

The respondent, who is an attorney-at-law, is charged with malpractice

for having published an advertisement in the Sunday Tribune of June 13,
1943, which reads as follows:
"Marriage license promptly secured thru our assistance & the
annoyance of delay or publicity avoided if desired, and marriage
arranged to wishes of parties. Consultation on any matter free for the
poor. Everything confidential.
"Legal
12

Escolta,

assistance
Manila,

service
Room

105

Tel. 2-41-60."

Appearing in his own behalf, In further respondent at first denied having

published the said advertisement; but subsequently, thru his attorney, he
admitted having caused its publication and prayed for "the indulgence and
mercy" of the Court, promising "not to repeat such professional misconduct in
the future and to abide himself to the strict ethical rules of the law profession."
mitigation he alleged that the said advertisement was published only once in
the Tribune and that he never had any case at law by reason thereof.
Upon that plea the case was submitted to the Court for decision.
It is undeniable that the advertisement in question was a flagrant
violation by the respondent of the ethics of his profession, it being a brazen
solicitation ofbusiness from the public. Section 25 of Rule 127 expressly
provides among other things that "the practice of soliciting cases at law for the
purpose of gain, either personally or thru paid agents or brokers, constitutes
malpractice." It is highly unethical for an attorney to advertise his talents or
skill as a merchant advertises his wares. Law is a profession and not a trade.
The lawyer degrades himself and his profession who stoops to and adopts the
practices of mercantilism by advertising his services or offering them to the
public. As a member of the bar, he defiles the temple of justice with mercenary
activities as the money-changers of old defiled the temple of Jehovah. "The
most worthy and effective advertisement possible, even for a young
lawyer, . . . is the establishment of a well-merited reputation for professional

capacity and fidelity to trust. This cannot be forced but must be the
outcome of character and conduct." (Canon 27, Code of Ethics.)
In In re Tagorda, 53 Phil., 37, the respondent attorney was suspended
from the practice of law for the period of one month for advertising his
services and soliciting work from the public by writing circular letters. That
case, however, was more serious than this because there the solicitations
were repeatedly made and were more elaborate and insistent.
Considering his plea for leniency and his promise not to repeat the
misconduct, the Court is of the opinion and so decides that the respondent
should be, as he hereby is, reprimanded.
Yulo, C.J., Moran, Horrilleno, Paras, and Bocobo, JJ., concur.

|||

(Director of Religious Affairs v. Bayot, Adm. Case No. 1117, March 20, 1944)

ADELINO

H. LEDESMA, petitioner, vs. HON.

RAFAEL

C. CLIMACO, Presiding Judge of the Court of First Instance of

Negros Occidental, Branch I, Silay City, respondent.
Adelino E. Ledesma in his own behalf.
Hon. Rafael C. Climaco in his own behalf.

DECISION

FERNANDO, J :
p

What is assailed in this certiorari proceeding is an order of respondent Judge

denying a motion filed by petitioner to be allowed to withdraw as counsel de
oficio. 1 One of the grounds for such a motion was his allegation that with his

appointment as Election Registrar by the Commission on Elections, he was not in

a position to devote full time to the defense of the two accused. The denial by
respondent Judge of such a plea, notwithstanding the conformity of the
defendants, was due "its principal effect [being] to delay this case." 2 It was
likewise noted that the prosecution had already rested and that petitioner was
previously counsel de parte, his designation in the former category being
precisely to protect him in his new position without prejudicing the accused. It
cannot be plausibly asserted that such failure to allow withdrawal of de
oficio counsel could ordinarily be characterized as a grave abuse of discretion
correctible by certiorari. There is, however, the overriding concern for the right to
counsel of the accused that must be taken seriously into consideration. In
appropriate cases, it should tilt the balance. This is not one of them. What is
easily discernible was the obvious reluctance of petitioner to comply with the
responsibilities incumbent on the counsel de oficio. Then, too, even on the
assumption that he continues in his position, his volume of work is likely to be
very much less at present. There is not now the slightest pretext for him to shirk
an obligation a member of the bar, who expects to remain in good standing,
should fulfill. The petition is clearly without merit.
According to the undisputed facts, petitioner, on October 13, 1964, was appointed
Election Registrar for the Municipality of Cadiz, Province of Negros Occidental.
Then and there, he commenced to discharge its duties. As he was counsel de
parte for one of the accused in a case pending in the sala of respondent Judge,
he filed a motion to withdraw as such. Not only did respondent Judge deny such
motion, but he also appointed him counsel de oficio for the two defendants.
Subsequently, on November 3, 1964, petitioner filed an urgent motion to be
allowed to withdraw as counsel de oficio, premised on the policy of the
Commission on Elections to require full time service as well as on the volume or
pressure of work of petitioner, which could prevent him from handling adequately
the defense. Respondent Judge, in the challenged order of November 6, 1964,
denied said motion. A motion for reconsideration having proved futile, he
instituted this certiorari proceeding. 3

As noted at the outset, the petition must fail.

1. The assailed order of November 6, 1964 denying the urgent motion of
petitioner to withdraw as counsel de oficio speaks for itself. It began with a
reminder that a crime was allegedly committed on February 17, 1962, with the
proceedings having started in the municipal court of Cadiz on July 11, 1962.
Then respondent Judge spoke of his order of October 16, 1964 which reads thus:
"In view of the objection of the prosecution to the motion for postponement of
October 15, 1964 (alleging that counsel for the accused cannot continue
appearing in this case without the express authority of the Commission on
Elections); and since according to the prosecution there are two witnesses who
are ready to take the stand, after which the government would rest, the motion for
postponement is denied. When counsel for the accused assumed office as
Election Registrar on October 13, 1964, he knew since October 2, 1964 that the
trial would be resumed today. Nevertheless, in order not to prejudice the civil
service status of counsel for the accused, he is hereby designated counsel de
oficio for the accused. The defense obtained postponements on May 17, 1963,
June 13, 1963, June 14, 1963, October 28, 1963, November 27, 1963, February
11, 1964, March 9, 1964, June 8, 1964, July 26, 1964, and September 7,
1964." 4 Reference was then made to another order of February 11, 1964: "Upon
petition of Atty. Adelino H. Ledesma, alleging indisposition, the continuation of the
trial of this case is hereby transferred to March 3, 1964 at 8:30 in the morning.
The defense is reminded that at its instance, this case has been postponed at
least eight (8) times, and that the government witnesses have to come all the way
from Manapala." 5 After which, it was noted in such order that there was no
incompatibility between the duty of petitioner to the accused and to the court and
the performance of his task as an election registrar of the Commission on
Elections and that the ends of justice "would be served by allowing and requiring
Mr. Ledesma to continue as counsel de oficio, since the prosecution has already
rested its case." 6
2. What is readily apparent therefore, is that petitioner was less than duly mindful
of his obligation as counsel de oficio. He ought to have known that membership

in the bar is a privilege burdened with conditions. It could be that for some
lawyers, especially the neophytes in the profession, being appointed counsel de
oficio is an irksome chore. For those holding such belief, it may come as a
surprise that counsel of repute and of eminence welcome such an opportunity. It
makes even more manifest that law is indeed a profession dedicated to the ideal
of service and not a mere trade. It is understandable then why a high degree of
fidelity to duty is required of one so designated. A recent statement of the
doctrine is found in People v. Daban: 7 "There is need anew in this disciplinary
proceeding to lay stress on the fundamental postulate that membership in the bar
carries with it a responsibility to live up to its exacting standard. The law is a
profession, not a trade or a craft. Those enrolled in its ranks are called upon to
aid in the performance of one of the basic purposes of the State, the
administration of justice. To avoid any frustration thereof, especially in the case of
an indigent defendant, a lawyer may be required to act as counsel de oficio. The
fact that his services are rendered without remuneration should not occasion a
diminution in his zeal. Rather the contrary. This is not, of course, to ignore that
other pressing matters do compete for his attention. After all, he has his practice
to attend to. That circumstance possesses, high degree of relevance since a
lawyer has to live; certainly he cannot afford either to neglect his paying cases.
Nonetheless, what is incumbent upon him as counsel de oficio must be
fulfilled." 8
So it has been from the 1905 decision of In re Robles Lahesa, 9 where
respondent was de oficio counsel, the opinion penned by Justice Carson making
clear: "This Court should exact from its officers and subordinates the most
scrupulous performance of their official duties, especially when negligence in the
performance of those duties necessarily results in delays in the prosecution of
criminal cases . . ." 10 Justice Sanchez in People v. Estebia

11

reiterated such a

view in these words: "It is true that he is a court-appointed counsel. But we do

say that as such counsel de oficio, he has as high a duty to the accused as one
employed and paid by defendant himself. Because, as in the case of the latter, he
must exercise his best efforts and professional ability in behalf of the person
assigned to his care. He is to render effective assistance. The accused-defendant

expects of him due diligence, not mere perfunctory representation. . . . For,

indeed a lawyer who is a vanguard in the bastion of justice is expected to have a
bigger dose of social conscience and a little less of self-interest." 12
The weakness of the petition is thus quite evident.
3. If respondent Judge were required to answer the petition, it was only due to the
apprehension that considering the frame of mind of a counsel loath and reluctant
to fulfill his obligation, the welfare of the accused could be prejudiced. His right to
counsel could in effect be rendered nugatory. Its importance was rightfully
stressed by Chief Justice Moran in People v. Holgado in these words: "In criminal
cases there can be no fair hearing unless the accused be given an opportunity to
be heard by counsel. The right to be heard would be of little avail if it does not
include the right to be heard by counsel. Even the most intelligent or educated
man may have no skill in the science of law, particularly in the rules of procedure,
and, without counsel, he may be convicted not because he is guilty but because
he does not know how to establish his innocence. And this can happen more
easily to persons who are ignorant or uneducated. It is for this reason that the
right to be assisted by counsel is deemed so important that it has become a
constitutional right and it is so implemented that under our rules of procedure it is
not enough for the Court to apprise an accused of his right to have an attorney, it
is not enough to ask him whether he desires the aid of an attorney, but it is
essential that the court should assign one de oficio for him if he so desires and
he is poor or grant him a reasonable time to procure an attorney of his
own." 13 So it was under the previous Organic Acts.

14

The present Constitution is

even more emphatic. For, in addition to reiterating that the accused "shall enjoy
the right to be heard by himself and counsel,"

15

there is this new provision: "Any

person under investigation for the commission of an offense shall have the right
to remain silent and to counsel, and to be informed of such right. No force,
violence, threat, intimidation, or any other means which vitiates the free will shall
be used against him. Any confession obtained in violation of this section shall be
inadmissible in evidence." 16

Thus is made manifest the indispensable role of a member of the Bar in the
defense of an accused. Such a consideration could have sufficed for petitioner
not being allowed to withdraw as counsel de oficio. For he did betray by his
moves his lack of enthusiasm for the task entrusted to him, to put matters mildly.
He did point though to his responsibility as an election registrar. Assuming his
good faith, no such excuse could be availed now. There is not likely at present,
and in the immediate future, an exorbitant demand on his time. It may likewise be
assumed, considering what has been set forth above, that petitioner would exert
himself sufficiently to perform his task as defense counsel with competence, if not
with zeal, if only to erase doubts as to his fitness to remain a member of the
profession in good standing. The admonition is ever timely for those enrolled in
the ranks of legal practitioners that there are times, and this is one of them, when
duty to court and to client takes precedence over the promptings of self-interest.
WHEREFORE, the petition for certiorari is dismissed. Costs against petitioner.
Zaldivar (Chairman), Antonio, Fernandez and Aquino, JJ., concur.
Barredo, J., did not take part.
|||

(Ledesma v. Climaco, G.R. No. L-23815, June 28, 1974)

JESUS

MA. CUI, plaintiff-appellee, vs.

MA. CUI, defendant-appellant,

ROMULO CUI, intervenor-

appellant.
Jose W. Diokno for plaintiff-appellee.
Jaime R. Nuevas and Hector L. Hofilea for defendant-appellant.
Romulo Cui in his own behalf as intervenor-appellants.
SYLLABUS

ANTONIO

1. ATTORNEYS; "TITULO DE ABOGADO" MEANS MEMBERSHIP IN THE BAR.

The term "titulo de abogado" means not mere possession of the academic
degree of Bachelor of Laws but membership in the bar after due admission
thereto, qualifying one for the practice of law.
2. ID.; POSSESSION OF LAW DEGREE NOT INDISPENSABLE TO QUALIFY
AS LAWYER. Possession of the law degree itself is not indispensable;
completion of the prescribed courses may be shown in some other way.
3. ID.; REINSTATEMENT TO THE ROLL WIPES OUT DISABILITIES.
Reinstatement to the roll of attorneys wipes out the restrictions and disabilities
resulting from a previous disbarment.
4. QUO WARRANTO; LIMITATIONS; ONE YEAR AFTER RIGHT OF PLAINTIFF
TO HOLD OFFICE AROSE. Under Section 16 of Rule 66 (formerly Sec. 16
Rule 68, taken from Section 215 of Act 190), an action of quo warranto must be
filed within one (1) year after the right of the plaintiff to hold the office arose.
5. ID.; ID.; ID.; PERIOD NOT TO BE COUNTED FROM DATE DEFENDANT
BEGAN TO DISCHARGE DUTIES OF OFFICE. The basis of a quo warranto
action being the plaintiff's own right to office, it is from the time such right arose
that the one-year limitation must be counted and not from the date the incumbent
defendant began to discharge the duties of said office.

DECISION

MAKALINTAL, J :
p

This is a proceeding in quo warranto originally filed in the Court of First Instance
of Cebu. The office in contention is that of Administrator of the Hospicio de San
Jose de Barili. Judgment was rendered on 27 April 1961 in favor of the plaintiff,
Jesus Ma. Cui, and appealed to us by the defendant, Antonio Ma. Cui, and by the
intervenor, Romulo Cui.

The Hospicio is a charitable institution established by the spouses Don

Pedro Cui and Doa Benigna Cui, now deceased, "for the care and support, free
of charge, of indigent invalids, and incapacitated and helpless persons." It
acquired corporate existence by legislation (Act No. 3239 of the Philippine
Legislative passed 27 November 1925) and endowed with extensive properties
by the said spouses through a series of donations, principally the deed of
donation executed on 2 January 1926.
Section 2 of Act No. 3239 gave the initial management to the founders jointly
and, in case of their incapacity or death, to "such persons as they may nominate
or designate, in the order prescribed by them." Section 2 of the deed of donation
provides as follows:
"Que en caso de nuestro fallecimiento o incapacidad para administrar,
nos sustituyan nuestro legitimo sobrino Mariano Cui, si al tiempo de
nuestra muerte o incapacidad se hallare residiendo en la ciudad de
Cebu, y nuestro sobrino politico Dionisio Jakosalem. Si nuestro dicho
sobrino Mariano Cui no estuviese residiendo entonces en la ciudad de
Cebu, designamos en su lugar a nuestro otro sobrino legitimo
Mauricio Cui.

Ambos

sobrinos

administraran

conjuntamente

el

HOSPICIO DE SAN JOSE DE BARILI. A la muerte o incapacidad de

estos dos administradores, la administracion del HOSPICIO DE SAN
JOSE DE BARILI pasara a una sola persona que sera el varon, mayor
de edad, que descienda legitimamente de cualquiera de nuestros
sobrinos legitimos Mariano Cui, Mauricio Cui, Vicente Cui y Victor Cui, y
que posea titulo de abogado, o medico, o ingeniero civil, o farmaceutico,
o a falta de estos titulos, el que pague al Estado mayor impuesto o
contribucion. En igualidad de circumstancias, sera preferido el varon de
mas edad descendiente de quien tenia ultimamente la administracion
Cuando absolutamente faltare persona de estas cualificaciones, la
administracion del HOSPICIO DE SAN JOSE DE BARILI pasara al
seor Obispo de Cebu o quien sea el mayor dignitario de la Iglesia
Catolica, Apostolica, Romana, que tuviere asiento en la cabecera de

esta Provincia de Cebu, y en su defecto, al Gobierno Provincial de

Cebu."

Don Pedro Cui died in 1926, and his widow continued to administer
the Hospicio until her death in 1929. Thereupon the administration passed to
Mauricio Cui and Dionisio Jakosalem. The first died on 8 May 1931 and the
second, on 1 July 1931. On 2 July 1931 Dr. Teodoro Cui, only son of
Mauricio Cui, became the administrator. Thereafter, beginning in 1932, a series
of controversies and court litigations ensued concerning the position of
administrator, to which, in so far as they are pertinent to the present case,
reference will be made later in this decision.
Plaintiff Jesus Ma. Cui and defendant Antonio Ma. Cui are brothers, being the
sons of Mariano Cui, one of the nephews of the spouses Don Pedro Cui and
Doa BenignaCui. On 27 February 1960 the then incumbent administrator, Dr.
Teodoro Cui, resigned in favor of Antonio Ma. Cui pursuant to a "convenio"
entered into between them and embodied in a notarial document. The next day,
28 February, Antonio Ma. Cui took his oath of office. Jesus Ma. Cui, however, had
no prior notice of either the "convenio" or of his brother's assumption of the
position.
Dr. Teodoro Cui died on 27 August 1960; on 5 September 1960 the plaintiff wrote
a letter to the defendant demanding that the office be turned over to him; and on
13 September 1960, the demand not having been complied with, the plaintiff filed
the complaint in this case. Romulo Cui later on intervened, claiming a right to the
same office, being a grandson of Vicente Cui, another one of the nephews
mentioned by the founders of the Hospicio in their deed of donation.
As between Jesus and Antonio the main issue turns upon their respective
qualifications to the position of administrator. Jesus is the older of the two and
therefore under equal circumstances would be preferred, pursuant to section 2 of
the deed of donation. However, before the test of age may be applied the deed
gives preference to the one, among the legitimate descendants of the nephews
therein named, "que posea titulo de abogado, o medico, o ingeniero civil, o

farmaceutico, o a falta de estos titulos, el que pague al estado mayor impuesto o

contribucion."

cda

The specific point in dispute is the meaning of the term "titulo de abogado." Jesus
Ma. Cui holds the degree of Bachelor of Laws from the University of Santo
Tomas (Class 1926) but is not a member of the Bar, not having passed the
examinations to qualify him as one. Antonio Ma. Cui, on the other hand, is a
member of the Bar, and although disbarred by this Court on 29 March 1957
(administrative case No. 141), was reinstated by resolution promulgated on 10
February 1960, about two weeks before he assumed the position of administrator
of the Hospicio de Barili.
The Court a quo, in deciding this point in favor of the plaintiff, said that the phrase
"titulo de abogado," taken alone, means that of a full-fledged lawyer, but that "as
used in the deed of donation and considering the function of purpose of the
administrator, it should not be given a strict interpretation but a liberal one," and
therefore means a law degree or diploma of Bachelor of Laws. This ruling is
assailed as erroneous both by the defendant and by intervenor.
We are of the opinion that whether taken alone or in context the term "titulo de
abogado" means not mere possession of the academic degree of Bachelor of
Laws but membership in the Bar after due admission thereto, qualifying one for
the practice of law. In Spanish the word "titulo" is defined as "testimonio o
instrumento dado para ejercer un empleo, dignidad o profession" (Diccionario de
la Lengua Espaola, Real Academia Espaola, 1947 ed., p. 1224); and the word
"abogado," as follows: "Perito en el derecho positivo que se dedica a defender en
juicio, por escrito o de palabra, los derechos o intereses de los litigantes, y
tambien a dar dictamen sobre las cuestiones o puntos legales que se la
consultan." (Id. p. 5) A Bachelor's degree alone, conferred by a law school upon
completion of certain academic requirements, does not entitle its holder to
exercise the legal profession. The English equivalent of "abogado" is lawyer or
attorney- at-law. This term has a fixed and general signification, and has
reference to that class of persons who are by license officers of the courts,

empowered to appear, prosecute and defend, and upon whom peculiar duties,
responsibilities and liabilities are developed by law as a consequence.
In this jurisdiction admission to the Bar and to the practice of law is under the
authority of the Supreme Court. According to Rule 138 such admission requires
passing the Bar examinations, taking the lawyer's oath and receiving a certificate
from the Clerk of Court, this certificate being his license to practice the
profession. The academic degree of Bachelor of Laws in itself has little to do with
admission to the Bar, except as evidence of compliance with the requirement that
an applicant to the examinations has "successfully completed all the prescribed
courses, in a law school or university, officially approved by the Secretary of
Education." For this purpose, however, possession of the law degree itself is not
indispensable: completion of the prescribed course may be shown in some other
way. Indeed there are instances, particularly under the former Code of Civil
Procedure, where persons who had not gone through any formal legal education
in college were allowed to take the Bar examinations and to qualify as lawyers.
(Section 14 of that code required possession of "the necessary qualifications of
learning and ability.") Yet certainly it would be incorrect to say that such persons
do not possess the "titulo de abogado" because they lack the academic degree
of Bachelor of Laws from some law school or university.
The founders of the Hospicio de San Jose de Barili must have established the
foregoing test advisedly, and provided in the deed of donation that if not a lawyer,
the administrator should be a doctor or a civil engineer or a pharmacist, in that
order; or failing all these, should be the one who pays the highest taxes among
those otherwise qualified. A lawyer, first of all, because under Act No. 3239 the
managers or trustees of the Hospicio shall "make regulations for the government
of said institution (Sec. 3, b); shall "prescribe the conditions subject to which
invalids and incapacitated and destitute persons may be admitted to the institute
(Sec. 3, d); shall see to it that the rules and conditions promulgated for admission
are not in conflict with the provisions of the Act; and shall administer properties of
considerable value for all of which work, it is to presumed, a working

knowledge of the law and a license to practice the profession would be distinct
asset.

Under this particular criterion we hold that the plaintiff is not entitled, as against
the defendant, to the office of administrator. But it is argued that although the
latter is a member of the Bar he is nevertheless disqualified by virtue of
paragraph 3 of the deed of donation, which provides that the administrator may
be removed, on the ground, among others, of ineptitude in the discharge of his
office or lack of evident sound moral character. Reference is made to the fact that
the defendant was disbarred by this Court on 29 March 1957 for immorality and
unprofessional conduct. It is also a fact, however, that he was reinstated on 10
February 1960, before he assumed the office of administrator. His reinstatement
is a recognition of his moral rehabilitation, upon proof no less than that required
for his admission to the Bar in the first place.
"Whether or not the applicant shall be reinstated rests to a great extent in
the sound discretion of the court. The court action will depend, generally
speaking, on whether or not it decides that the public interest in the
orderly and impartial administration of Justice will be conserved by the
applicant's participation therein in the capacity of an attorney and
counselor at law. The applicant must, like a candidate for admission to
the bar, satisfy the court that he is a person of good moral character a
fit and proper person to practice law. The court will take into
consideration the applicant's character and standing prior to the
disbarment, the nature and character of the charge for which he was
disbarred, his conduct subsequent to the disbarment, and the time that
has elapsed

between

the

disbarment

and

the

application

for

reinstatement. (5 Am. Jur., Sec. 301, p. 443)

"Evidence of reformation is required before applicant is entitled to
reinstatement, notwithstanding the attorney has received a pardon
following his conviction, and the requirements for reinstatement have

been held to be the same as for original admission to the bar, except that
the court may require a greater degree of proof than in an original
admission." (7 G.J.S., Attorney & Client, Sec. 41, p. 815.)
"The decisive questions on an application for reinstatement are whether
applicant is 'of good moral character' in the sense in which that phrase is
used when applied to attorneys-at-law and is a fit and proper person to
be entrusted with the privileges of the office of an attorney, and whether
his mental qualifications are such as to enable him to discharge
efficiently his duty to the public, and the moral attributes are to be
regarded as a separate and distinct from his mental qualifications." (7
C.J.S., Attorney & Client, Sec. 41, p. 816)."

As far as moral character is concerned, the standard required of one seeking

reinstatement to the office of attorney cannot be less exacting than that implied in
paragraph 3 of the deed of donation as a requisite for the office which is disputed
in this case. When the defendant was restored to the roll of lawyers the
restrictions and disabilities resulting from his previous disbarment were wiped
out.
This action must fail on one other ground: it is already barred by lapse of time
amounting to prescription or laches. Under Section 16 of Rule 66 (formerly sec.
16, Rule 68, taken from section 216 of Act 190), this kind of action must be filed
within one (1) year after the right of the plaintiff to hold the office arose.
Plaintiff Jesus Ma. Cui believed himself entitled to the office in question as long
ago as 1932. On January 26 of that year he filed a complaint in quo
warranto against

Dr.

Teodoro Cui,

who

assumed

the

administration

of

the Hospicio on 2 July 1931. Mariano Cui, the plaintiff's father, and Antonio
Ma. Cui came in as intervenors. The case was dismissed by the Court of First
Instance upon a demurrer by the defendant there to the complaint and complaint
in intervention. Upon appeal to the Supreme Court from the order of dismissal,
the case was remanded for further proceedings (Cui vs. Cui, 60 Phil. 37, 48). The
plaintiff, however, did not prosecute the case as indicated in the decision of this

Court, but acceded to an arrangement whereby Teodoro Cui continued as

administrator Mariano Cui was named "legal adviser" and plaintiff Jesus
Ma. Cui accepted a position as assistant administrator.
Subsequently the plaintiff tried to get the position by a series of extra-judicial
maneuvers. First he informed the Social Welfare Commissioner, by letter dated 1
February 1950, that as of the previous 1 January he had "made clear" his
"intention of occupying the office of administrator of the Hospicio." He followed
that up with another letter dated 4 February, announcing that he had taken over
the administration as of 1 January 1950. Actually, however, he took his oath of
office before a notary public only on 4 March 1950, after receiving a reply of
acknowledgment, dated 2 March, from the Social Welfare Commissioner, who
thought that he had already assumed the position as stated in his communication
of 4 February 1950. The rather muddled situation was referred by the
Commissioner to the Secretary of Justice, who in an opinion dated 3 April 1950
(op. No. 45, S. 1950), correcting another opinion previously given, in effect ruled
that the plaintiff, not being a lawyer, was not entitled to the administration of
the Hospicio.
Meanwhile, the question again become the subject of a court controversy. On 14
March 1950 the Hospicio commenced an action against the Philippine National
Bank in the Court of First Instance of Cebu (Civ. Case No. R-1216) because the
bank had frozen the Hospicio's deposits therein. The Bank then filed a third-party
complaint against herein plaintiff-appellee, Jesus Ma. Cui, who had, as stated
above, taken oath as administrator. On 19 October 1950, having been deprived of
recognition by the opinion of the Secretary of Justice he moved to dismiss the
third-party complaint on the ground that he was relinquishing "temporarily" his
claim to the administration of the Hospicio. The motion was denied in an order
dated 2 October 1953. On 6 February 1954 he was able to take another oath of
office as administrator before President Magsaysay, and soon afterward filed a
second motion to dismiss in Civil Case No. R-1216. President Magsaysay, be it
said, upon learning that a case was pending in Court, stated in a telegram to his
Executive Secretary that "as far as (he) was concerned the court may disregard

the oath" thus taken. The motion to dismiss was granted nevertheless and the
other parties in the case filed their notice of appeal from the order of dismissal.
The plaintiff then filed an ex-parte motion to be excluded as party in the appeal
and the trial court again granted the motion. This was on 24 November 1954.
Appellants thereupon instituted a mandamus proceeding in the Supreme Court
(G.R. No. L-8540), which was decided on 28 May 1956, to the effect that Jesus
Ma. Cui should be included in the appeal. That appeal, however, after it reached
this Court was dismissed upon motion of the parties, who agreed that "the office
of administrator and trustee of the Hospicio . . . should be ventilated inquo
warranto proceedings to be initiated against the incumbent by whomsoever is not
occupying the office but believes he has a right to it" (G.R. No. L-9103). The
resolution of dismissal was issued 31 July 1956. At that time the incumbent
administrator was Dr. Teodoro Cui, but no action in quo warranto was filed
against him by plaintiff Jesus Ma. Cui as indicated in the aforesaid motion for
dismissal.
On 10 February 1960, defendant Antonio Ma. Cui was reinstated by this Court as
member of the Bar, and on the following 27 February Dr. Teodoro Cui, resigned
as administrator in his favor, pursuant to the "convenio" between them executed
on the same date. The next day Antonio Ma. Cui took his oath of office.
The failure of the plaintiff to prosecute his claim judicially after this Court decided
the first case of Cui vs. Cui in 1934 (60 Phil. 3769), remanding it to the trial court
for further proceedings; his acceptance instead of the position of assistant
administrator, allowing Dr. Teodoro Cui to continue as administrator; and his
failure to file an action in quo warranto against said Dr. Cui after 31 July 1956,
when the appeal in Civil Case No. R-1216 of the Cebu Court was dismissed
upon motion of the parties precisely so that the conflicting claims of the parties
could be ventilated in such an action all these circumstances militate against
the plaintiff's present claim in view of the rule that an action in quo warranto must
be filed within one year after the right of the plaintiff to hold office arose. The
excuse that the plaintiff did not file an action against Dr. Teodoro Cui after 31 July
1956 because of the latter's illness did not interrupt the running of the statutory

period. And the fact that this action was filed within one year of the defendant's
assumption of office in September 1960 does not make the plaintiff's position any
better, for the basis of the action is his own right to the office and it is from the
time such right arose that the one-year limitation must be counted, not from the
date

the

incumbent

began

to

discharge

the

duties

of

said

office.

Bautista vs. Fajardo, 38 Phil. 624; Lim vs. Yulo, 62 Phil. 161.
Now for the claim of intervenor and appellant Romulo Cui. This party is also a
lawyer, grandson of Vicente Cui, one of the nephews of the founders of
the Hospiciomentioned by them in the deed of donation. He is farther, in the line
of succession, than defendant Antonio Ma. Cui, who is a son of Mariano Cui,
another one of the said nephews. The deed of donation provides: "a la muerte o
incapacidad de estos administradores (those appointed in the deed itself) pasara
a una sola persona que sera el varon, mayor de edad, que deacienda legitimante
de cualquiera de nuestros sobrinos legitimas Maiano Cui, Mauricio Cui,
Vicente Cui, Victor Cui, y que posea titulo de abogado . . . En egualdad de
circumtancias, sera preferido el varon de mas edad descendiente e quien tenia
ultimamente la administracion." Besides being a nearer descendant than
Romulo Cui, Antonio Ma. Cui is older than he and therefore is preferred when the
circumstances are otherwise equal. The intervenor contends that the intention of
the founders was to confer the administration by line and successively to the
descendants of the nephews named in the deed, in the order they are named.
Thus, he argues, since the last administrator was Dr. Teodoro Cui, who belonged
to the Mauricio Cui line, the next administrator must come from the line of
Vicente Cui, to whom the intervenor belongs. This interpretation, however, is not
justified by the terms of the deed of donation.

IN VIEW OF THE FOREGOING CONSIDERATIONS, the judgment appealed

from is reversed and set aside, and the complaint as well as the complaint in
intervention are dismissed, with costs equally against plaintiff-appellee and
intervenor-appellant.

Bengzon,

C.J.,

Bautista

Angelo,

Concepcion,

Reyes,

J.B.L.,

Paredes and Regala, JJ., concur.

|||

(Cui v. Cui, G.R. No. L-18727, August 31, 1964)

RAUL

A. VILLEGAS, petitioner, vs. ASSEMBLYMAN

VALENTINO L. LEGASPI, COURT OF FIRST INSTANCE OF

CEBU, BRANCH II, presided by HON. FRANCISCO P.
BURGOS, District Judge; BRIGIDA VERA CRUZ, joined in and
assisted by her husband JOSE VERA CRUZ, and PRIMITIVO
CANIA, JR.,respondents.
[G.R. No. 51928. March 25, 1982.]
EUGENIO J. PUYAT, ERWIN L. CHIONGBIAN, EDGARDO P.
REYES, ANTONIO G. PUYAT, JAIME R. BLANCO, RAFAEL R.
RECTO, and REYNALDO L. LARDIZABAL, petitioners, vs. HON.
SIXTO T.J. DE GUZMAN, JR., as Associate Commissioner of
the Securities & Exchange Commission, EUSTAQUIO T. C.
ACERO, R.G. VILDZIUS, ENRIQUE M. BELO, MANUEL G.
ABELLO, SERVILLANO DOLINA, JUANITO MERCADO and
ESTANISLAO A. FERNANDEZ,respondents.
Pablo B. Badong for petitioners.
J.R. Blanco for petitioners.
Pelaez Adriano & Gregorio for respondents.
SYNOPSIS

These two cases involve the prohibition in Section 11, Article VIII of the 1973
Constitution, which used to read: "No member of the National Assembly shall
appear as counsel before any Court inferior to a Court with appellate
jurisdiction, . . ." Under the amendment, ratified in a national plebiscite held on
April 7, 1981, the said provision now reads: "No member of the Batasang
Pambansa shall appear as counsel before any Court without appellate
jurisdiction, . . . ."
In G.R. No. 53869, a complaint for annulment of bank checks and damages was
filed by petitioner against private respondents before the Court of First Instance
of Cebu. An answer was filed by private respondents through their counsel, Atty.
Valentino Legaspi, a member of the Batasang Pambansa. Petitioner "challenged"
the appearance of Assemblyman Legaspi" as counsel of record on the around
that he is barred under the Constitution from appearing before Courts of First
Instance of original jurisdiction. Respondent Judge denied the disqualification bid,
as well as a reconsideration thereof. Hence, this petition.
In G.R. No. 51928, petitioner Reyes filed Civil Case No. 33739 before the Court
of First Instance of Rizal against N.V. Verenigde Buinzenfabrieken Exelsior-De
Maas and private respondent Eustaquio Acero to annul the sale of Excelsior's
shares in the International Pipe Industries Corporation to Acero, allegedly on the
ground that, prior thereto, the same shares had already been sold to him (Reyes).
Assemblyman Fernandez entered his appearance as counsel for Excelsior. This
appearance was questioned on the ground that it was barred by Section 11,
Article VIII of the 1973 Constitution.
In a joint resolution of the two cases, the Supreme Court held that what is
prohibited to a Batasang Pambansa member, under both the original and the
amended constitutional provision in issue, is" appearance as counsel" "before
any Court without appellate jurisdiction," hence, since the respective Courts of
First Instance, before which Assemblymen Legaspi and Fernandez appeared as
counsel, were acting in the exercise of original and not appellate jurisdiction, they
are barred from appearing as counsel before said Courts. Writs granted.

SYLLABUS
1. CONSTITUTIONAL LAW; CONSTITUTIONS; EFFECTIVITY OF NEW OR
AMENDED PROVISIONS; CASES FILED PRIOR TO AMENDMENT SHOULD
BE RESOLVED UNDER THE AMENDED PROVISIONS; CASES AT BAR.
The Supreme Court abides by the proposition that "as a general rule, the
provisions of a new constitution take effect immediately and become operative on
pending litigation." (16 Am Jur., 2d, p.219 citing Cassard vs. Tracy, 52 La Ann
835, 27 So 368.) Although the cases at bar were filed prior to the amendment of
Section 11, Article VIII of the 1973 Constitution, ratified in a national plebiscite
held on April 7, 1981, they should be resolved under the amended provision.
2. ID.; ID.; ASSEMBLYMEN BARRED FROM APPEARING AS COUNSEL;
MEANING OF THE PROHIBITION UNDER THE ORIGINAL AND AMENDED
PROVISIONS OF THE CONSTITUTION. The original provision of Section 11,
Article VIII of the 1973 Constitution, used to read: "No member of the National
Assembly shall appear as counsel before any court inferior to a court with
appellate jurisdiction, . . ." Under the amendment ratified in a national plebiscite
held on April 7, 1981, the same section now reads: No member of the Batasang
Pambansa shall appear as counsel before any court without appellate
jurisdiction, . . ." Clearly, what is prohibited to a Batasang Pambansa member is
"appearance as counsel" "before any Court without appellate jurisdiction."
3. ID.; ID.; ID.; ID.; "APPEARANCE AS COUNSEL" CONSTRUED; CASE AT
BAR. "Appearance as counsel" is a voluntary submission to a court's
jurisdiction by a legal advocate or advising lawyer professionally engaged
to represent and plead the cause of another. This is the common, popular
connotation of this word which the Constitution must have adopted. Judging from
the prescribed criteria, there should be no question that. Assemblyman Valentino
L. Legaspi, in preparing the Answer for private respondents-spouses in Civil
Case No. R-18857 before the Court of First Instance of Cebu, Branch II, appears
as their counsel. Similarly, Assemblyman Estanislao A. Fernandez appears as
counsel for Excelsior in Civil Case No. 33739 of the Court of First Instance of

Rizal (Pasig), Branch XXI. They represent and plead the cause of another before
a Court of Justice.
4. REMEDIAL LAW; JURISDICTION; APPELLATE JURISDICTION; CRITERION.
There are authorities to the effect that the essential criterion of appellate
jurisdiction is that it revises and corrects the proceedings in a case already
instituted and does not create the cause (Marbury vs. Madison, 5 U.S. 137, 175,
2L. Ed. 60; In re: Constitutionality of House Bill No. 222, 90 SW 2d 692, 293.) Or,
that it necessarily implies that the subject matter has been instituted in and acted
upon by some other court whose judgment or proceedings are to be reviewed (Ex
Parte Evans, 52 S.E. 419, 420.) In an early Philippine case, U.S. vs. Atienza, 1
Phil. 737 (1903), it was held to mean jurisdiction to review the judgment of an
inferior court. And, that it calls for and demands previous legitimate jurisdiction by
a court of origin (De Rivera vs. Halili, 9 SCRA 59 [1963].
5. ID.; ID.; COURTS OF FIRST INSTANCE VESTED WITH BOTH ORIGINAL
AND APPELLATE JURISDICTION. Under Section 39 of the Judiciary Act of
1948, Courts of First Instance are Courts of general original jurisdiction. However,
under Section 43 of the same statute, their jurisdiction has been stated to be of
two kinds: (a) original and (b) appellate. They have appellate jurisdiction over all
cases arising in City and Municipal Courts in their respective provinces except
over appeals from cases tried by Municipal Judges of provincial capitals or City
Judges pursuant to the authority granted under the last paragraph of Section 87
of the Judiciary Act (Section 45, Judiciary Act.)
6. CONSTITUTIONAL LAW; 1973 Constitution, SECTION 11, ARTICLE VIII;
PROHIBITION ON APPEARANCE BY LEGISLATORS AS COUNSEL BEFORE
COURTS OF FIRST INSTANCE CONSTRUED AS LIMITED TO CASES
WHEREIN SAID COURTS EXERCISE APPELLATE JURISDICTION. We are
of the considered opinion that, to render effective Section 11, Article VIII of
the 1973 Constitution, appearance by legislators before Courts of First Instance
should be limited to cases wherein said Courts exercise appellate jurisdiction.
This is true to the time-honored principle that whatever is necessary to render
effective any provision of a Constitution, whether the same be a prohibition or a

restriction, must be deemed implied and intended in the provision itself (Black, on
Interpretation of Laws, 2nd ed., 1911, p. 29.).
7. ID.; ID.; ID.; OBJECTIVE OF THE PROHIBITION ON APPELLATE
PRACTICE. The objective of the prohibition in Section 11, Article VIII of
the 1973 Constitution, both under the original and the amended provisions, is
clearly to remove any possibility of undue influence upon the administration of
justice, to eliminate the possible use of office for personal gain, to ensure
impartiality in trials and thus preserve the independence of the Judiciary. The
possible influence of an Assemblyman on a single Judge of the Court of First
Instance, though not entirely removed, is definitely diminished where the latter
Court acts in the exercise of its appellate instead of original jurisdiction. The
upper hand that a party represented by an Assemblyman by virtue of his office
possesses is more felt and could be more feared in original cases than in
appealed cases because the decision or resolution appealed from in the latter
situation has already a presumption not only of regularity but also of correctness
in its favor. In fine, "appellate practice" is an intended qualification dictated by
principles of reason, justice and public interest.
8. ID.;

ID.;

ID.;

ID.;

RESPONDENT

ASSEMBLYMEN

BARRED

FROM

APPEARING IN CASES AT BAR. Since the respective Courts of First

Instance, before which Assemblymen Legaspi and Fernandez appeared as
counsel, were acting in the exercise of original and not appellate jurisdiction, they
must be held barred from appearing as counsel before said Courts in the two
cases involved herein.

DECISION

MELENCIO-HERRERA, J :
p

These two cases (L-53869 and L-51928) filed in May, 1980 and September, 1979,
respectively, involve the prohibition in Section 11, Article VIII of the 1973 Charter,
which used to read:
"Sec. 11. No member of the National Assembly shall appear as counsel
before any court inferior to a court with appellate jurisdiction, . . ."

The antecedent facts follow:

L-53869
On September 27, 1979, a complaint for annulment of bank checks and damages
was filed by Raul A. Villegas against the Vera Cruz spouses and Primitivo Cania,
Jr. (private respondents) before the Court of First Instance of Cebu, Branch XVI,
then presided by Hon. Ceferino E. Dulay (Civil Case No. 43 1-L). An Answer,
dated October 11, 1979, was filed by private respondents through their counsel,
Assemblyman Valentino L. Legaspi, a member of the Batasang Pambansa from
the province of Cebu. Raul A. Villegas "challenged" the appearance of
Assemblyman Legaspi as counsel of record on the ground that he is barred
under the Constitution from appearing before Courts of First Instance, which are
essentially trial Courts or Courts of original jurisdiction. After the Opposition and
Reply to the Opposition were filed, Judge Dulay issued an Order inhibiting
himself from the aforesaid case because Assemblyman Legaspi was likewise the
lawyer of his wife in two pending cases. The case was re-raffled and re-docketed
as Civil Case No. R-18857, and transferred to Branch II, presided by Judge
Francisco P. Burgos (respondent Court).

cdlaws06

In an Order, dated February 27, 1980, Judge Burgos denied the disqualification
of Assemblyman Legaspi, as well as the Motion for Reconsideration filed
thereafter. Hence, this recourse to Certiorari and Prohibition.
A temporary Restraining Order was issued ex-parte by this Tribunal on May 22,
1980 enjoining respondent Court from acting in Civil Case No. R-18857 below.
L -51928

Edgardo P. Reyes filed, on July 3, 1979, Civil Case No. 33739 before the Court of
First

Instance

of

Rizal

(Pasig),

Branch

XXI,

against

N.V.

Verenigde

Buinzenfabrieken Excelsior-De Maas and private respondent Eustaquio T. C.

Acero to annul the sale of Excelsior's shares in the International Pipe Industries
Corporation (IPI) to Eustaquio T.C. Acero, allegedly on the ground that, prior
thereto, the same shares had already been sold to him (Reyes). Assemblyman
Estanislao Fernandez entered his appearance as counsel for Excelsior. This
appearance was questioned on the ground that it was barred by Section 11,
Article VIII of the 1973 Constitution, above-quoted.
Initially, this case (L-51928) was filed as a Supplemental Petition to L-51122
(Eugenio Puyat, et als. vs. Hon. Sixto T. J. de Guzman), but this Court ordered it
docketed separately. And since the issue involved is on all fours with L-53869, the
Court opted to resolve Case No. L-51928 jointly with L-53869 instead of with L51122 as originally directed.
The novel issue for determination is whether or not members of the Batasang
Pambansa, like Attorneys Valentino L. Legaspi and Estanislao A. Fernandez, can
appear as counsel before Courts of First Instance.
A comparison of Section 11, Article VIII, of the 1973 Constitution prohibiting any
Assemblyman from appearing as counsel "before any Court inferior to a Court
with appellate jurisdiction," and the "similar" provision of Section 17, Article VI, of
the 1935 Charter is elucidating. The last sentence of the latter provision reads:
". . . No member of the Commission on Appointments shall appear as
counsel before any Court inferior to a collegiate Court of Appellate
Jurisdiction."

A significant amendment is the deletion of the term "collegiate." Further, the

limitation now comprehends all members of the Batasang Pambansa, and is no
longer confined to members of the Commission on Appointments, a body not
provided for under the 1973 Constitution.
Under the amendment to Article VIII of the 1973 Constitution, ratified in a national
plebiscite held on April 7, 1981, Section 11 now reads:

"SEC. 11. No member of the Batasang Pambansa shall appear as

counsel before any court without appellate jurisdiction, . . ."

The term "collegiate" remains deleted, and the terminology is now "Court without
appellate jurisdiction."
Although the cases at bar were filed prior to the aforesaid amendment, they
should be resolved under the amended provision. We abide by the proposition
that "as a general rule, the provisions of a new Constitution take effect
immediately and become operative on pending litigation." 1
Clearly, what is prohibited to a Batasang Pambansa member is "appearance as
counsel" "before any Court without appellate jurisdiction."
"Appearance" has been defined as "voluntary submission to a court's
jurisdiction." 2 "Counsel" means " an adviser, a person professionally engaged in
the trial or management of a cause in court; a legal advocate managing a case at
law; a lawyer appointed or engaged to advise and represent in legal matters a
particular client, public officer, or public body." 3 Ballantine's Law Dictionary says
a counsel is a "counselor; an attorney at law; one or more attorneys representing
parties in an action." 4Thus, "appearance as counsel" is a voluntary submission
to a court' s jurisdiction by a legal advocate or advising lawyer professionally
engaged to represent and plead the cause of another. This is the common,
popular connotation of this word which the Constitution must have adopted. In
one case, 5 in resolving the question of what constitutes "appearance as an
advocate," the Court held that " advocate" means one who pleads the cause of
another before a tribunal or judicial court, a counselor.
Judging from the prescribed criteria, there should be no question that
Assemblyman Valentino L. Legaspi, in preparing the Answer for private
respondent-spouses in Civil Case No. R-18857 before the Court of First Instance
of Cebu, Branch II, appears as their counsel. Similarly, Assemblyman Estanislao
A. Fernandez appears as counsel for Excelsior in Civil Case No. 33739 of the
Court of First Instance of Rizal (Pasig), Branch XXI. They represent and plead
the cause of another before a Court of justice.

The next poser then arises: are the Courts of First Instance, where
Assemblymen Legaspi and Fernandez, respectively, appear as counsel of record,
Courts with appellate jurisdiction?
There are authorities to the effect that the essential criterion of appellate
jurisdiction is that it revises and corrects the proceedings in a case already
instituted and does not create that cause. 6 Or, that it necessarily implies that the
subject-matter has been instituted in and acted upon by some other court whose
judgment or proceedings are to be reviewed. 7 In an early Philippine case, 8 it
was held to mean jurisdiction to review the judgment of an inferior court. And, that
it calls for and demands previous legitimate jurisdiction by a court of origin. 9
By

law,

Courts

of

First

Instance

are

Courts

of

general

original

jurisdiction. 10 However, under the same statute, their jurisdiction has been stated
to be of two kinds: (a) original and (b) appellate.

11

They have appellate

jurisdiction over all cases arising in City and Municipal Courts in their respective
provinces except over appeals from cases tried by Municipal Judges of provincial
capitals or City Judges pursuant to the authority granted under the last paragraph
of Section 87 of the Judiciary Act. 12
It is rather clear that Courts of First Instance, by virtue of a specific bestowal by
the Judiciary Act of 1948, as amended, can be Courts with appellate jurisdiction.
And, by the deliberate omission of the word "collegiate" in both the original and
amended Section 11, Article VIII of the 1973 Constitution, the obvious intention of
the framers is that Courts of First Instance, as appellate Tribunals, no longer fall
within the ambit of the previous prohibition. They are single-Judge Courts with
appellate jurisdiction from decisions and orders of City and Municipal
Courts. 13 Stated otherwise, under the amended proviso, Courts of First Instance
are not Courts without appellate jurisdiction.
It is contended, however, that the Courts of First Instance in these two cases took
cognizance of the suits in the exercise of their exclusive original and not appellate
jurisdiction, hence, Assemblymen Fernandez and Legaspi are still prohibited from
appearing before said Courts as counsel. There is merit to this contention.

It should be borne in mind that Courts of First Instance have dual "personality."
Depending on the case before it, said Courts can be either of appellate or original
jurisdiction. The question then to be resolved is whether or not Assemblymen can
appear as counsel before Courts of First Instance in cases originally filed with
them.
We are of the considered opinion that, to render effective the Constitutional
provision, appearance by legislators before Courts of First Instance should be
limited to cases wherein said Courts exercise appellate jurisdiction. This is true to
the time-honored principle that whatever is necessary to render effective any
provision of a Constitution, whether the same be a prohibition or a restriction,
must be deemed implied and intended in the provision itself. 14
It bears repeating that under Section 17, Article VI of the 1935 Charter, it was
provided that members of the Commission on Appointments shall not "appear as
counsel before any Court inferior to a collegiate Court of appellate jurisdiction."
The intent was clear that members of the Commission on Appointments could not
appear before Courts of First Instance. Uppermost in the minds of the framers
was "appellate jurisdiction" more than Court. Under Section 11, Article VIII of
the 1973 Constitution, the scope of the prohibition was expanded to embrace all
members of the National Assembly who were barred from "appear(ing) as
counsel before any Court inferior to a Court with appellate jurisdiction." The
common denominator was still "appellate jurisdiction" more than "Court." Under
the amendment ratified in the April 7, 1981 referendum, members of the
Batasang Pambansa are prohibited from "appear(ing) as counsel before any
Court without appellate jurisdiction." Consistently, the principal criterion is,
"appellate jurisdiction." So that, when a legislator appears in an original case filed
with a Court of First Instance, he would not be appearing before a Court with
"appellate jurisdiction."
Appellate practice is all that is permitted because of the admitted predominance
of lawyers in the legislature.

15

Their office has always favored them with the

influence and prestige that it carried. Today, as before, it is only "appellate

practice" that is allowed with the significant difference that, this time, the Court

need not be a collegial body. This is so because with the removal of the
legislative power to review appointments the source of power and influence that
members of the National Assembly could unduly exert in the exercise of the legal
profession has been greatly minimized.
This is a situation where the restricted meaning must prevail over the general
because the nature of the subject matter of the context clearly indicates that the
limited sense is intended. 16 In fact, the original amendment proposed by Antonio
V. Raquiza, Delegate of the First District, Ilocos Norte, in Resolution No. 345
entitled "Prohibiting Members of the National Assembly to Use Their Office As a
Means of Promoting Self-Interest" was to bar a National Assembly member
from appearing as counsel before any Court. In the "Whereas" clauses, that
proposal was believed to be an "improvement" over Section 17, Article VI of
the 1935 Constitution and the purpose of the proposed amendment was
explained as follows:

xxx xxx xxx

"2. The Constitutional provision enumerates the kind of court or
administrative cases where a legislator cannot appear. In our proposal
he is absolutely barredbecause it is feared that the practice of his
profession will interfere with the performance of his duties or that
because the power of his office might influence the administration of
justice.
xxx xxx xxx (Emphasis ours) 17

The co-author of Resolution No. 345, Delegate Leocadio E. Ignacio from the lone
District of Isabela, and Floor Leader of the 1971 Constitutional Convention,
elucidated further on the purpose behind the prohibition when he wrote in his
Position Paper that "The prohibition against appearing as counsel is necessary
because of the undue influence which members of Congress enjoy when they
practice before the Courts and especially before administrative agencies. It is an
accepted fact that our legislature is composed of a predominance of practicing

lawyers, and who are therefore expected to be naturally not averse to exerting all
influence that they can muster in the pursuit of their profession." Continuing, he
said: "The inability to practice as counsel . . . should be part of the sacrifices
entailed in running for the position of lawmaker.

18

The amendment proposed by

Delegate Gonzalo O. Catan, Jr. of Negros Oriental even went further: "No
member of the National Assembly shall, during his term of office, appear as
counsel, directly or indirectly, in any Court or administrative body . . ."

19

Delegate

Emerito M. Salva from the Second District, Ilocos Norte, substituted his own
amendment thus:
"Section 13. No member of the National Assembly shall, during his term
of office, practice directly or indirectly any occupation or profession or be
allowed to engage directly or indirectly in any trade, business, or
industry." 20

and explained:
"10.2 Explaining the substitute amendment, Delegate Salva said that the
assemblymen should render full-time service to the nation. He pointed
out that they should be barred from the practice of their respective
professions since they would reasonably be compensated for devoting
their time to the work of the National Assembly."

21

While Section 11, Article VIII, as finally adopted by the Constitutional Convention,
did not carry the several amendments proposed, they are reflective of the
sentiment prevailing at the 1971 Constitutional Convention, and reinforce the
conviction that appearance as counsel by Assemblymen was meant to be
confined to appellate practice and not unlimited practice before Courts of First
Instance. That sentiment has been carried over to the amendment ratified in the
April, 1981 plebiscite. For, there is no substantial difference between "Court
inferior to a Court with appellate jurisdiction" (the original 1973 provision) and
"Court without appellate jurisdiction" (the amended provision).
The objective of the prohibition, then and now, is clearly to remove any possibility
of undue influence upon the administration of justice, to eliminate the possible

use of office for personal gain, to ensure impartiality in trials and thus preserve
the independence of the Judiciary. The possible influence of an Assemblyman on
a single Judge of the Court of First Instance, though not entirely removed, is
definitely diminished where the latter Court acts in the exercise of its appellate
instead of original jurisdiction. The upper hand that a party represented by an
Assemblyman by virtue of his office possesses is more felt and could be more
feared in original cases than in appealed cases because the decision or
resolution appealed from in the latter situation has already a presumption not only
of regularity but also of correctness in its favor.
In fine, "appellate practice" is an intended qualification dictated by principles of
reason, justice and public interest.
The limited application to "appellate practice" is a viewpoint favored by a
constitutionalist of eminence, Chief Justice Enrique M. Fernando, in his scholarly
work "The Constitution of the Philippines, 22 where he said:
"It is to be noted that at present he may appear as counsel in any
criminal case, but he cannot do so before any administrative body. Also,
while it is only appellate practice that is allowed a member of the
National Assembly, formerly, such a limitation applied solely to a Senator
or Representative who was in the Commission on Appointments, a body
abolished under the present Constitution. Those differences should be
noted" (Emphasis supplied). 23

Chief Justice Enrique M. Fernando also expounded on the reason behind the
Constitutional prohibition, thus:
". . . The need for it was felt by the 1934 Constitutional Convention, a
sentiment shared by the last Constitutional Convention, because of the
widespread belief that legislators found it difficult to resist, as perhaps
most men, the promptings of self-interest. Clearly, the purpose was and
is to stress the fiduciary aspect of the position. There is thus fidelity to
the maxim that a public office is a public trust."

24

Since

the

respective

Courts

of

First

Instance,

before

which

Assemblymen Legaspi and Fernandez appeared as counsel, were acting in the

exercise of original and not appellate jurisdiction, they must be held barred from
appearing as counsel before said Courts in the two cases involved herein.
WHEREFORE, granting the Writs prayed for, the Order issued on February 27,
1980 by the Court of First Instance of Cebu, Branch II, in Civil Case No. R18857, is hereby set aside, and Attorneys Estanislao A. Fernandez and
Valentino Legaspi hereby declared prohibited from appearing as counsel before
the Court of First Instance of Rizal (Pasig), Branch XXI, in Civil Case No. 33739,
and before the Court of First Instance of Cebu, Branch II, in Civil Case No. R18857, respectively. The Restraining Order issued heretofore in L-53869 is
hereby made permanent.
No costs in either case.
SO ORDERED.
|||

(Villegas v. Legaspi, G.R. No. 53869, 51928, March 25, 1982)

JULIO

D. ENRIQUEZ,

SR.,

representing

of ENRIQUEZ & ENRIQUEZ, petitioner, vs. HON.

the

law

firm

PEDRO

M. GIMENEZ in his capacity as AUDITOR GENERAL OF THE

PHILIPPINES, respondent.
Julio D. Enrquez, Sr. for petitioner.
Assistant Solicitor General Florencio Villamor and Solicitor Jorge R.
Coquia for respondent.
SYLLABUS

1. MUNICIPAL

CORPORATION;

PROVINCIAL

FISCAL;

LEGAL

ADVISER OF MUNICIPAL MAYOR AND COUNCIL; WHEN DISQUALIFIED.

Under the provision of Sections 2241, 1682 and 1683 of the Revised
Administrative Code the provincial fiscal is the legal adviser of the mayor and
council of the various municipalities of a province and it is his duty to
represent the municipality in any court except when he is disqualified by law.
When he is disqualified to represent the municipality, the municipal council
may engage the services of a special attorney. The provincial fiscal is
disqualified to represent in court the municipality if and when original
jurisdiction of the case involving the municipality is vested in the Supreme
Court; when the municipality is a party adverse to the provincial government
or to some other municipality in the same province; and when in the case
involving the municipality, he, or his wife, or child, is pecuniarily involved as
heir, legatee, creditor or otherwise.
2. ID.; ID.; MUNICIPAL COUNCIL TO ENGAGE SERVICES OF
SPECIAL COUNSEL; PROVINCIAL FISCAL'S HOSTILE BELIEF ON THE
CASE. The fact that the provincial fiscal entertains a hostile belief and
attitude on the theory involved in the litigation and, therefore, would not be in a
position to prosecute the case of the municipality with earnestness and vigor,
could not justify the act of the municipal council in engaging the services of a
special counsel. Bias or prejudice and animosity or hostility on the part of a
fiscal not based on any of the conditions enumerated in the law and the Rules
of Court do not constitute a legal and valid excuse for inhibition or
disqualification.
3. ID.; ID.; BOUND TO PERFORM HIS DUTIES. Unlike a practicing
lawyer who has the right to decline employment, a fiscal cannot refuse the
performance of his functions on grounds not provided for by law without
violating his oath of office, where he swore, among others, "that he will well
and faithfully discharge to the best of his ability the duties of the office or
position upon which he is about to enter . . ..

4. ID.; ID.; REMEDY OF MUNICIPAL COUNCIL IF FISCAL DECLINES

TO HANDLE CASE. Instead of engaging the services of a special attorney,
the municipal council should have requested the Secretary of Justice to
appoint an acting provincial fiscal in place of the provincial fiscal who had
declined to handle and prosecute its case in court pursuant to Section 1679 of
the Revised Administrative Code.

DECISION

PADILLA, J :
p

This is a petition filed under the provisions of Rule 45 of the Rules of

Court and section 2 (c) of Commonwealth Act No. 327 for a review of a
decision of the Auditor General dated 24 June 1957.
On 18 June 1955 Republic Act No. 1383 creating the National
Waterworks and Sewerage Authority as a public corporation and vesting in it
the ownership, jurisdiction, supervision and control over all territory embraced
by the Metropolitan Water District as well as all areas served by existing
government-owned waterworks and sewerage and drainage systems within
the boundaries of cities, municipalities, and municipal districts in the
Philippines, and those served by the Waterworks and Wells and Drills Section
of the Bureau of Public Works, was passed. On 19 September 1955 the
President of the Philippines promulgated Executive Order No. 127 providing,
among others, for the transfer to the National Waterworks and Sewerage
Authority of all the records, properties, machinery, equipment, appropriations,
assets, choses in actions, liabilities, obligations, notes, bonds and all
indebtedness of all government-owned waterworks and sewerage systems in
the provinces, cities, municipalities and municipal districts (51 Off. Gaz. 44154417). On 31 March 1956 the municipal council of Bauan, Batangas, adopted
and passed Resolution No. 152 stating "that it is the desire of this municipality
in this present administration not to submit our local Waterworks to the

provisions of the saidRepublic Act No. 1383." (Annex A.) On 20 April 1956 the
municipal mayor transmitted a copy of Resolution No. 152 to the Provincial
Fiscal through the Provincial Board requesting him to render an opinion on the
matter treated therein and to inform the municipal council whether he would
handle and prosecute its case in court should the council decide to question
and test judicially the legality of Republic Act No. 1383 and to prevent the
National Waterworks and Sewerage Authority from exercising its authority
over the waterworks system of the municipality (Annex B). On 2 May 1956 the
provincial fiscal rendered an opinion holding that Republic Act No. 1383 is
valid and constitutional and declined to represent the municipality of Bauan in
an action to be brought against the National Waterworks and Sewerage
Authority to test the validity and constitutionality of the Act creating it (Annex
C). On 26 May 1956 the municipal council adopted and passed Resolution
No. 201 authorizing the municipal mayor to take steps to commence an action
or proceedings in court to challenge the constitutionality of Republic Act No.
1383 and to engage the services of a special counsel, and appropriating the
sum of P2,000 to defray the expenses of litigation and attorney's fees (Annex
D). On 2 June 1956 the municipal mayor wrote a letter to the petitioner
engaging his services as counsel for the municipality in its contemplated
action against the National Waterworks and Sewerage Authority (Annex F.) On
27 June 1956 the Provincial Board of Batangas adopted and passed
Resolution No. 1829 approving Resolution No. 201 of the municipal council of
Bauan (Annex E). On 28 June 1956 the petitioner wrote to the municipal
mayor accepting his offer in behalf of the municipality under the following
terms and conditions: that his professional services shall commence from the
filing of the complaint up to and including the appeal, if any, to the appellate
courts; that his professional fee shall be P1,500 and payable as follows: P500
upon the filing of the complaint, P500 upon the termination of the hearing of
the case in the Court of First Instance, and P500 after judgment shall have
become final or, should the judgment be appealed, after the appeal shall have
been submitted for judgment to the appellate court; and that the municipality
shall defray all reasonable and necessary expenses for the prosecution of the

case in the trial and appellate courts including court and sheriff fees,
transportation and subsistence of counsel and witnesses and cost of
transcripts of stenographic notes and other documents (Annex G). On the
same date, 28 June 1956, the petitioner filed the necessary complaint in the
Court of First Instance of Batangas (civil No. 542, Annex I). On 9 July 1956
the municipal mayor wrote to the petitioner agreeing to the terms and
conditions set forth in his (the petitioner's) letter of 28 June 1956 (Annex H).
On 16 July 1956 the defendant filed its answer to the complaint (Annex J). On
24 July 1956 the petitioner wrote a letter to the municipal treasurer requesting
reimbursement of the sum of P40 paid by him to the Court as docket fee and
payment of the sum of P500 as initial attorney's fee. Attached to the letter
were the pertinent supporting papers (Annex K). The municipal treasurer
forwarded the petitioner's claim letter and enclosures to the Auditor General
through channels for pre-audit. On 24 June 1957 the Auditor General
disallowed in audit the petitioner's claim for initial attorney's fees in the sum of
P500, based upon an opinion rendered on 10 May 1957 by the Secretary of
Justice who held that the Provincial Fiscal was not disqualified to handle and
prosecute in court the case of the municipality of Bauan and that its municipal
council had no authority to engage the services of a special counsel (Annex
L), but offered no objection to the refund to the petitioner of the sum of P40
paid by him to the Court as docket fee (Annex M). On 15 August 1957 the
petitioner received notice of the decision of the Auditor General and on 11
September 1957 he filed with the Auditor General a notice of appeal from his
decision under section 4, Rule 45, of the Rules of Court (Annex N). On 13
September 1957 the petitioner filed this petition for review in this Court.
The Revised Administrative Code provides:
SEC. 2241. Submission of questions to provincial fiscal. When
the council is desirous of securing a legal opinion upon any question
relative to its own powers or the constitution or attributes of the municipal
government, it shall frame such question in writing and submit the same
to the provincial fiscal for decision.

SEC. 1682. Duty of fiscal as legal adviser of province and

provincial subdivisions. The provincial fiscal shall be the legal adviser
of the provincial government and its officers, including district health
officers, and of the mayor and council of the various municipalities and
municipal districts of the province. As such he shall, when so requested,
submit his opinion in writing upon any legal question submitted to him by
any such officer or body pertinent to the duties thereof.
SEC. 1683. Duty of fiscal to represent provinces and provincial
subdivisions in litigation. The provincial fiscal shall represent the
province and any municipality or municipal district thereof in any court,
except in cases whereof original jurisdiction is vested in the Supreme
Court or in cases where the municipality or municipal district in question
is a party adverse to the provincial government or to some other
municipality or municipal district in the same province. When the
interests of a provincial government and of any political division thereof
are opposed, the provincial fiscal shall act on behalf of the province.

When the provincial fiscal is disqualified to serve any municipality

or other political subdivision of a province, a special attorney may be
employed by its council.

Under the foregoing provisions of law, the Provincial Fiscal is the legal
adviser of the mayor and counsel of the various municipalities of a province
and it is his duty to represent the municipality in any court except when he is
disqualified by law. When he is disqualified to represent the municipality, the
municipal council may engage the services of a special attorney. The
Provincial Fiscal is disqualified to represent in court the municipality if and
when original jurisdiction of the case involving the municipality is vested in the
Supreme Court; when the municipality is a party adverse to the provincial
government or to some other municipality in the same province; 1 and when in
the case involving the municipality, he, or his wife, or child, is pecuniarily
involved as heir, legatee, creditor or otherwise. 2 The fact that the Provincial

Fiscal in the case at bar was of the opinion that Republic Act No. 1383 was
valid and constitutional, and, therefore, would not be in a position to prosecute
the case of the municipality with earnestness and vigor, could not justify the
act of the municipal council in engaging the services of a special counsel.
Bias or prejudice and animosity or hostility on the part of a fiscal not based on
any of the conditions enumerated in the law and the Rules of Court do not
constitute a legal and valid excuse for inhibition or disqualification. 3 And unlike
a practising lawyer who has the right to decline employment, 4 a fiscal cannot
refuse the performance of his functions on grounds not provided for by law
without violating his oath of office, where he swore, among others, "that he will
well and faithfully discharge to the best of his ability the duties of the office or
position upon which he is about to enter . . . ." 5 Instead of engaging the
services of a special attorney, the municipal council should have requested
the Secretary of Justice to appoint an acting provincial fiscal in place of the
provincial fiscal who had declined to handle and prosecute its case in court,
pursuant to section 1679 of the Revised Administrative Code. The petitioner
claims that the municipal council could not do this because the Secretary of
Justice, who has executive supervision over the Government Corporate
Counsel, who represented the National Waterworks and Sewerage Authority
in the case filed against it by the municipality of Bauan (civil No. 542, Annex J)
and direct supervision and control over the Provincial Fiscal, would be placed
in an awkward and absurd position of having control of both sides of the
controversy. The petitioner's contention is untenable. Section 83 of the
Revised Administrative Code, as amended by Executive Order No. 94, series
of 1947 and further amended by Executive Order No. 392, series of 1950, 46
Off. Gaz., 5913, 5917, provides that the Secretary of Justice shall
have executive supervision over the Government Corporate Counsel
and supervision and control over Provincial Fiscals. In Mondano vs.Silvosa,
97 Phil., 143; 51 Off. Gaz., 2884, 2888, this Court distinguished supervision
from control as follows:
. . . In administrative law supervision means overseeing or the
power or authority of an officer to see that subordinate officers perform

their duties. If the latter fail or neglect to fulfill them the former may take
such action or step as prescribed by law to make them perform their
duties. Control on the other hand, means the power of an officer to alter
or modify or nullify or set aside what a subordinate officer had done in
the performance of his duties and to substitute the judgment of the
former for that of the latter. . . .

The fact that the Secretary of Justice had, on several occasions, upheld the
validity and constitutionality of Republic Act No. 1383 does not exempt the
municipal council of Bauan from requesting the Secretary of Justice to detail a
provincial fiscal to prosecute its case.
The services of the petitioner having been engaged by the municipal
council and mayor without authority of law, the Auditor General was correct in
disallowing in audit the petitioner's claim for payment of attorney's fees.
The decision under review is affirmed, without pronouncement as to
costs.
Bengzon, Montemayor, Bautista Angelo, Concepcion,
Barrera and Gutierrez David, JJ., concur.
|||

(Enriquez, Sr. v. Gimenez, G.R. No. L-12817, April 29, 1960)

FELIPE SALCEDO, petitioner-appellant, vs.

FRANCISCO HERNANDEZ, respondent-appellee. In re contempt
proceedings against Attorney VICENTE J. FRANCISCO.
Vicente J. Francisco in his own behalf.
SYLLABUS
1. CONTEMPT; PHRASES IN CONTEMPT OF COURT CONTAINED
IN A MOTION. The phrases contained in attorney V. J. F.'s motion disclose,

in the opinion of this court, an inexcusable disrespect of the authority of the

court and an intentional contempt of its dignity, because the court is thereby
charged with no less than having proceeded in utter disregard of the laws, the
rights of the parties and of the untoward consequences, or with having abused
its power and mocked and flouted the rights of attorney V. J. F.'s client,
because the acts of outraging and mocking from which the words "outrage"
and "mockery" used therein are derived, mean exactly the same as all these,
according to the Dictionary of the Spanish Language published by the
Spanish Academy (Dictionary of the Spanish Language, 15th ed., pages 132
and 513).
2. ID.; ID.; THE LAWYER'S DUTIES TO THE SUPREME COURT.
As a member of the bar and an officer of this court, attorney V. J. F., as any
attorney, is in duty bound to uphold its dignity and authority and to defend its
integrity, not only because it has conferred upon him the high privilege, not a
right (Malcolm, Legal Ethics, 158 and 160), of being what he now is: a priest
of justice (In re Thatcher, 80 Ohio St. Rep., 492, 669), but also because in so
doing he neither creates nor promotes distrust in the administration of justice,
and he prevents anybody from harboring and encouraging discontent, which
in many cases, is the source of disorder, thus undermining the foundation on
which rests the bulwark called judicial power to which those who are
aggrieved turn for protection and relief.
3. ID.; ID.; ID.; RESPECT OF THE COURTS. It is right and plausible
that an attorney, in defending the cause and rights of his client, should do so
with all the favor and energy of which he is capable, but it is not, and will never
be so for him to exercise said right by resorting to intimidation or proceeding
without the propriety and respect which the dignity of the courts require. The
reason for this is that respect of the courts guarantees the stability of their
institution. Without such guaranty said institution would be resting on a very
shaky foundation.
4. ID.; ID.; WANT OF INTENTION. In his defense, attorney V. J. V.
states that it was not his attention to offend the court or to be recreant to the

respect thereto but, unfortunately, there are his phrases which require no
further comment. Furthermore, it is a well settled rule in all places where the
same conditions and practice as those in this jurisdiction obtain, that want of
intention is no excuse from liability (13 C. J., 45). Neither is the fact that the
phrases employed are justified by the facts a valid defense.
5. ID.; ID.; ID.; EXTENUATION OF LIABILITY. Said lack or want of
intention constitutes at most an extenuation of liability in this case, taking into
consideration attorney V. J. F.'s state of mind, according to him, when he
prepared his said motion. This court is disposed to make this concession.
However, in order to avoid a recurrence thereof and to prevent others, by
following a bad example, from taking the same course, this court considers it
imperative to treat the case of said attorney with the justice it deserves.

DECISION

DIAZ, J :
p

In a motion filed in this case, which is pending resolution because the

second motion for reconsideration of Attorney Vicente J. Francisco, who
represents the herein petitioner, has not been acted upon to date, for the
reason that the question whether or not the decision which has already been
promulgated should be reconsidered by virtue of the first assignment of error
relied upon in said petitioner's brief, has not yet been determined, for which
purpose the case was set for hearing on August 5, 1935, said attorney
inserted a paragraph the translation of which reads as follows:
"We should like frankly and respectfully to make it of record that
the resolution of this court, denying our motion for reconsideration, is
absolutely erroneous Felipe Salcedo and a mockery of the popular will
expressly at the polls in the municipality of Tiaong, Tayabas. We wish to
exhaust all the means within our power in order that this error may be
corrected by the very court which has committed it, because we should

not want that some citizen, particularly some voter of the municipality of
Tiaong, Tayabas, resort to the press publicly to denounce, as he has a
right to do, the judicial outrage of which the herein petitioner has been
the victim, and because it is our utmost desire to safeguard the prestige
of this honorable court and of each and every member thereof in the
eyes of the public. But, at the same time we wish to state sincerely that
erroneous decisions like these, which the affected party and his
thousands of voters will necessarily consider unjust, increase the
proselytes of 'sakdalism' and make the public lose confidence in the
administration of justice."

When the court's attention was called to said paragraph, it required

Attorney Vicente J. Francisco to show cause, if any, why he should not be
found guilty of contempt, giving him a period of ten days for that purpose. In
his answer Attorney Vicente J. Francisco, far from regretting having employed
the phrases contained in said paragraph in his motion, reiterated them several
times contending that they did not constitute contempt because, according to
him it is not contempt to tell the truth.
The phrases:
". . . and constitutes an outrage to the rights of the petitioner
Felipe Salcedo and a mockery of the popular will expressed at the polls .
. ..
". . . because we should not want that some citizen, particularly
some voter of the municipality of Tiaong, Tayabas, resort to the press
publicly to denounce, as he has a right to do, the judicial outrage . . ..
"and . . . we wish to state sincerely that erroneous decisions like
these, which the affected party and his thousands of voters will
necessarily consider unjust, increase the proselytes of 'sakdalism' and
make the public lose confidence in the administration of justice",
disclose, in the opinion of this court, an inexcusable disrespect of the
authority of the court and an intentional contempt of its dignity, because
the court is thereby charged with no less than having proceeded in utter

disregard of the laws, the rights of the parties, and of the untoward
consequences, or with having abused its power and mocked and flouted
the rights of Attorney Vicente J. Francisco's client, because the acts of
outraging and mocking from which the words "outrage" and "mockery"
used therein are derived, mean exactly the same as all these, according
to the Dictionary of the Spanish Language published by the Spanish
Academy (Dictionary of the Spanish Language, 15th ed., pages 132 and
513).

The insertion of the phrases in question in said motion of Attorney

Vicente J. Francisco, for many years a member of the Philippine bar, was
neither justified nor in the least necessary, because in order to call the
attention of the court in a special way to the essential points relied upon in his
argument and to emphasize the force thereof, the many reasons stated in his
said motion were sufficient and the phrases in question were superfluous. In
order to appeal to reason and justice, it is highly improper and amiss to make
trouble and resort to threats, as Attorney Vicente J. Francisco has done,
because both means are annoying and good practice can never sanction
them by reason of their natural tendency to disturb and hinder the free
exercise of a serene and impartial judgment, particularly in judicial matters, in
the consideration of questions submitted for resolution.
There is no question that said paragraph of Attorney Vicente J.
Francisco's motion contains a more or less veiled threat to the court because
it is insinuated therein, after the author shows the course which the voters of
Tiaong should follow in case he fails in his attempt, that they will resort to the
press for the purpose of denouncing, what he claims to be a judicial outrage of
which his client has been the victim; and because he states in a threatening
manner with the intention of predisposing the mind of the reader against the
court, thus creating an atmosphere of prejudices against it in order to make it
odious in the public eye, that decisions of the nature of that referred to in his
motion promote distrust in the administration of justice and increase the
proselytes of sakdalism, a movement with seditious and revolutionary

tendencies the activities of which, as is of public knowledge, occurred in this

country a few days ago. This cannot mean otherwise than contempt of the
dignity of the court and disrespect of the authority thereof on the part of
Attorney Vicente J. Francisco, because he presumes that the court is so
devoid of the sense of justice that, if he did not resort to intimidation, it would
maintain its error notwithstanding the fact that it may be proven, with good
reasons, that it has acted erroneously.
As a member of the bar and an officer of this court, Attorney Vicente J.
Francisco, as any attorney, is in duty bound to uphold its dignity and authority
and to defend its integrity, not only because it has conferred upon him the high
privilege, not a right (Malcolm, Legal Ethics, 158 and 160), of being what he
now is: a priest of justice (In re Thatcher, 80 Ohio St. Rep., 492, 669), but also
because in so doing, he neither creates nor promotes distrust in the
administration of justice, and prevents anybody from harboring and
encouraging discontent which, in many cases, is the source of disorder, thus
undermining the foundation upon which rests that bulwark called judicial
power to which those who are aggrieved turn for protection and relief.
It is right and plausible that an attorney, in defending the cause and
rights of his client, should do so with all the fervor and energy of which he is
capable, but it is not, and never will be so for him to exercise said right by
resorting to intimidation or proceeding without the propriety and respect which
the dignity of the courts require. The reason for this is that respect of the
courts guarantees the stability of their institution. Without such guaranty, said
institution would be resting on a very shaky foundation.
At this juncture, it is not amiss to invite attention to the provisions of rule
1 of Chapter 2 of Legal Ethics, which reads as follows:
"It is the duty of the lawyer to maintain towards the courts a
respectful attitude, not for the sake of the temporary incumbent of the
judicial office, but for the maintenance of its importance. Judges, not
being wholly free to defend themselves, are peculiarly entitled to receive

the support of the bar against unjust criticism and clamor. Whenever
there is proper ground for serious complaint of a judicial officer, it is the
right and duty of the lawyer to submit his grievances to the proper
authorities. In such cases but not otherwise, such charges should be
encouraged and the person making them should be protected."

In his defense, Attorney Vicente J. Francisco states that it was not his
intention to offend the court or to be recreant to the respect thereto but,
unfortunately, there are his phrases which need no further comment.
Furthermore, it is a well settled rule in all places where the same conditions
and practice as those in this jurisdiction obtain, that want of intention is no
excuse from liability (13 C. J., 45). Neither is the fact that the phrases
employed are justified by the facts a valid defense:
"Where the matter is abusive or insulting, evidence that the language
used was justified by the facts is not admissible as a defense. Respect for the
judicial office should always be observed and enforced." (In re Stewart, 118
La., 827; 43 S., 455.) Said lack or want of intention constitutes at most an
extenuation of liability in this case, taking into consideration Attorney Vicente
J. Francisco's state of mind, according him when he prepared said motion.
This court is disposed to make such concession. However, in order to avoid a
recurrence thereof and to prevent others, by following the bad example, from
taking the same course, this court considers it imperative to treat the case of
said attorney with the justice it deserves.
Briefly, this court is of the opinion and so holds that the act committed
by Attorney Vicente J. Francisco constitutes a contempt in the face of the
court (in facie curiae) and, reiterating what this court said on another occasion
that the power to punish for contempt is inherent in the courts in order that
there be due administration of justice (In re Kelly, 35 Phil., 944), and so that
the institution of the courts of justice may be stable and said courts may not
fail in their mission, said attorney is ordered to pay a fine of P200 within the
period of ten days, and to be reprimanded, and he is hereby reprimanded; and
it is ordered that the entire paragraph of his motion containing the phrases

which as has been stated, constitute contempt of court be stricken from the
record de oficio. So ordered.
Avancea, C.J., Villa-Real, Abad Santos, Hull, Imperial,
Butte and Goddard, JJ., concur.
|||

(Salcedo v. Hernandez, G.R. No. 42992, August 08, 1935)

SOPHIA ALAWI, complainant, vs. ASHARY M. ALAUYA, Clerk of

Court VI, Shari'a District Court, Marawi City, respondent.
SYLLABUS
1. JUDICIAL ETHICS; CODE OF CONDUCT AND ETHICAL STANDARDS FOR
PUBLIC SERVICE (R.A. 6713); ENUNCIATES THE CONDUCT REQUIRED OF
A PUBLIC SERVANT. The Code of Conduct and Ethical Standards for Public
Officials and Employees (RA 6713) inter alia enunciates the State policy of
promoting a high standard of ethics and utmost responsibility in the public
service. Section 4 of the Code commands that "(p)ublic officials and
employees . . . at all times respect the rights of others, and . . . refrain from doing
acts contrary to law, good morals, good customs, public policy, public order,
public safety and public interest." More than once has this Court emphasized that
"the conduct and behavior of every official and employee of an agency involved in
the administration of justice, from the presiding judge to the most junior clerk,
should be circumscribed with the heavy burden of responsibility. Their conduct
must at all times be characterized by, among others, strict propriety and decorum
so as to earn and keep the respect of the public for the judiciary.
2. ID.; ATTORNEY; WHEN USE OF SUCH TITLE CAN BE CONSIDERED
PROPER. As regards Alauya's use of the title of "Attorney," this Court has
already had occasion to declare that persons who pass the Shari'a Bar are not

full-fledged members of the Philippine Bar, hence may only practice law before
Shari'a courts. While one who has been admitted to the Shari'a Bar, and one who
has been admitted to the Philippine Bar, may both be considered "counsellors," in
the sense that they give counsel or advice in a professional capacity, only the
latter is an attorney." The title of "attorney" is reserved to those who, having
obtained the necessary degree in the study of law and successfully take the Bar
Examinations, have been admitted to the Integrated Bar of the Philippines and
remain members thereof in good standing; and it is they only who are authorized
to practice law in this jurisdiction.
3. ADMINISTRATIVE LAW; COURT PERSONNEL; A JUDICIAL EMPLOYEE IS
EXPECTED TO ACCORD RESPECT TO A PERSON AND THE RIGHTS OF
OTHERS AT ALL TIMES. Now, it does not appear to the Court consistent with
good morals, good customs or public policy, or respect for the rights of others, to
couch denunciations of acts believed however sincerely to be deceitful,
fraudulent or malicious, in excessively intemperate, insulting or virulent
language. Alauya is evidently convinced that he has a right of action against
Sophia Alawi. The law requires that he exercise that right with propriety, without
malice or vindictiveness, or undue harm to anyone; in a manner consistent with
good morals, good customs, public policy, public order, supra; or otherwise
stated, that he "act with justice, give everyone his due and observe honesty and
good faith." Righteous indignation, or vindication of right cannot justify resort to
vituperative language, or downright name-calling. As a member of the Shari'a Bar
and an officer of a Court, Alawi is subject to a standard of conduct more stringent
than for most other government workers. As a man of the law, he may not use
language which is abusive, offensive, scandalous, menacing, or otherwise
improper. As a judicial employee, it is expected that he accord respect for the
person and the right of others at all times, and that his every act and word should
be characterized by prudence, restraint, courtesy, dignity. His radical deviation
from these salutary norms might perhaps be mitigated, but cannot be excused,
by his strongly held conviction that he had been grievously wronged.

DECISION

NARVASA, C .J :
p

Sophia Alawi was (and presumably still is) a sales representative (or coordinator)
of E. B. Villarosa & Partners Co., Ltd. of Davao City, a real estate and housing
company. Ashari M. Alauya is the incumbent executive clerk of court of the 4th
Judicial Shari'a District in Marawi City. They were classmates, and used to be
friends.
It appears that through Alawi's agency, a contract was executed for the purchase
on installments by Alauya of one of the housing units belonging to the above
mentioned firm (hereafter, simply Villarosa & Co.); and in connection therewith, a
housing loan was also granted to Alauya by the National Home Mortgage
Finance Corporation (NHMFC).
Not long afterwards, or more precisely on December 15, 1995, Alauya addressed
a letter to the President of Villarosa & Co. advising of the termination of his
contract with the company. He wrote:
". . . I am formally and officially withdrawing from and notifying you of my
intent to terminate the Contract/Agreement entered into between me and
your company, as represented by your Sales Agent/Coordinator,
SOPHIA ALAWI, of your company's branch office here in Cagayan de
Oro City, on the grounds that my consent was vitiated by gross
misrepresentation, deceit, fraud, dishonesty and abuse of confidence by
the aforesaid sales agent which made said contract void ab initio. Said
sales agent acting in bad faith perpetrated such illegal and unauthorized
acts which made said contract an Onerous Contract prejudicial to my
rights and interests."

He then proceeded to expound in considerable detail and quite acerbic language

on the "grounds which could evidence the bad faith, deceit, fraud,
misrepresentation, dishonesty and abuse of confidence by the unscrupulous

sales agent . . .;" and closed with the plea that Villarosa & Co. "agree for the
mutual rescission of our contract, even as I inform you that I categorically state on
record that I am terminating the contract . . . I hope I do not have to resort to any
legal action before said onerous and manipulated contract against my interest be
annulled. I was actually fooled by your sales agent, hence the need to annul the
controversial contract."
Alauya sent a copy of the letter to the Vice-President of Villarosa & Co. at San
Pedro, Gusa, Cagayan de Oro City. The envelope containing it, and which
actually went through the post, bore no stamps. Instead at the right hand corner
above the description of the addressee, the words, "Free Postage PD 26," had
been typed.
On the same date, December 15, 1995, Alauya also wrote to Mr. Fermin T.
Arzaga, Vice-President, Credit & Collection Group of the National Home
Mortgage Finance Corporation (NHMFC) at Salcedo Village, Makati City,
repudiating as fraudulent and void his contract with Villarosa & Co.; and asking
for cancellation of his housing loan in connection therewith, which was payable
from salary deductions at the rate of P4,338.00 a month. Among other things, he
said:
" . . . (T)hrough this written notice, I am terminating, as I hereby annul,
cancel, rescind and voided, the 'manipulated contract' entered into
between me and the E.B. Villarosa & Partner Co., Ltd., as represented
by its sales agent/coordinator, SOPHIA ALAWI, who maliciously and
fraudulently manipulated said contract and unlawfully secured and
pursued the housing loan without my authority and against my will. Thus,
the contract itself is deemed to be void ab initio in view of the attending
circumstances, that my consent was vitiated by misrepresentation, fraud,
deceit, dishonesty, and abuse of confidence; and that there was no
meeting of the minds between me and the swindling sales agent who
concealed the real facts from me."

And, as in his letter to Villarosa & Co., he narrated in some detail what he took to
be the anomalous actuations of Sophia Alawi.
Alauya wrote three other letters to Mr. Arzaga of the NHMFC, dated February 21,
1996, April 15, 1996, and May 3, 1996, in all of which, for the same reasons
already cited, he insisted on the cancellation of his housing loan and
discontinuance of deductions from his salary on account thereof. a He also wrote
on January 18, 1996 to Ms. Corazon M. Ordoez, Head of the Fiscal
Management & Budget Office, and to the Chief, Finance Division, both of this
Court, to stop deductions from his salary in relation to the loan in question, again
asserting the anomalous manner by which he was allegedly duped into entering
into the contracts by "the scheming sales agent." b
The upshot was that in May, 1996, the NHMFC wrote to the Supreme Court
requesting it to stop deductions on Alauya's UHLP loan "effective May 1996," and
began negotiating with Villarosa & Co. "for the buy-back of . . . (Alauya's)
mortgage, and . . . the refund of . . . (his) payments." c
On learning of Alauya's letter to Villarosa & Co. of December 15, 1995,
Sophia Alawi filed with this Court a verified complaint dated January 25, 1996
to which she appended a copy of the letter, and of the above mentioned envelope
bearing the typewritten words, "Free Postage PD 26." 1 In that complaint, she
accused Alauya of:
1. "Imputation of malicious and libelous charges with no solid grounds
through manifest ignorance and evident bad faith;"
2. "Causing undue injury to, and blemishing her honor and established
reputation;"
3. "Unauthorized enjoyment of the privilege of free postage . . .;" and
4. Usurpation of the title of "attorney," which only regular members of the
Philippine Bar may properly use.

She deplored Alauya's references to her as "unscrupulous, swindler, forger,

manipulator, etc." without "even a bit of evidence to cloth (sic) his allegations with

the essence of truth," denouncing his imputations as irresponsible, "all

concoctions, lies, baseless and coupled with manifest ignorance and evident bad
faith," and asserting that all her dealings with Alauya had been regular and
completely transparent. She closed with the plea that Alauya "be dismissed from
the service, or be appropriately disciplined (sic) . . ."
The Court resolved to order Alauya to comment on the complaint. Conformably
with

established

usage

that notices

of

resolutions emanate

from

the

corresponding Office of the Clerk of Court, the notice of resolution in this case
was signed by Atty. Alfredo P. Marasigan, Assistant Division Clerk of Court. 2

Alauya first submitted a "Preliminary Comment" 3 in which he questioned the

authority of Atty. Marasigan to require an explanation of him, this power
pertaining, according to him, not to "a mere Asst. Div. Clerk of Court investigating
an Executive Clerk of Court," but only to the District Judge, the Court
Administrator or the Chief Justice, and voiced the suspicion that the Resolution
was the result of a "strong link" between Ms. Alawi and Atty. Marasigan's office.
He also averred that the complaint had no factual basis; Alawi was envious of
him for being not only "the Executive Clerk of court and ex-officio Provincial
Sheriff and District Registrar," but also "a scion of a Royal Family . . ." 4
In a subsequent letter to Atty. Marasigan, but this time in much less aggressive,
even obsequious tones, 5 Alauya requested the former to give him a copy of the
complaint in order that he might comment thereon. 6 He stated that his acts as
clerk of court were done in good faith and within the confines of the law; and that
SophiaAlawi as sales agent of Villarosa & Co. had, by falsifying his signature,
fraudulently bound him to a housing loan contract entailing monthly deductions of
P4,333.10 from his salary.
And

in

his

comment

thereafter

submitted

under

date

of

June

5,

1996, Alauya contended that it was he who had suffered "undue injury, mental
anguish, sleepless nights, wounded feelings and untold financial suffering,"
considering that in six months, a total of P26,028.60 had been deducted from his

salary. 7 He declared that there was no basis for the complaint; in communicating
with Villarosa & Co. he had merely acted in defense of his rights. He denied any
abuse of the franking privilege, saying that he gave P20.00 plus transportation
fare to a subordinate whom he entrusted with the mailing of certain letters; that
the words: "Free Postage PD 26," were typewritten on the envelope by some
other person, an averment corroborated by the affidavit of Absamen C. Domocao,
Clerk IV (subscribed and sworn to before respondent himself, and attached to the
comment as Annex J); 8 and as far as he knew, his subordinate mailed the letters
with the use of the money he had given for postage, and if those letters were
indeed mixed with the official mail of the court, this had occurred inadvertently
and because of an honest mistake. 9
Alauya justified his use of the title, "attorney," by the assertion that it is "lexically
synonymous" with "Counsellors-at-law," a title to which Shari'a lawyers have a
rightful claim, adding that he prefers the title of "attorney" because "counsellor" is
often mistaken for "councilor," "konsehal or the Maranao term "consial,"
connoting a local legislator beholden to the mayor. Withal, he does not consider
himself a lawyer.
He pleads for the Court's compassion, alleging that what he did "is expected of
any man unduly prejudiced and injured." 10 He claims he was manipulated into
reposing his trust in Alawi, a classmate and friend. 11 He was induced to sign a
blank contract on Alawi's assurance that she would show the completed
document to him later for correction, but she had since avoided him; despite
"numerous letters and follow-ups" he still does not know where the property
subject of his supposed agreement with Alawi's principal, Villarosa & Co. is
situated; 12 He says Alawi somehow got his GSIS policy from his wife, and
although she promised to return it the next day, she did not do so until after
several months. He also claims that in connection with his contract with Villarosa
& Co., Alawi forged his signature on such pertinent documents as those
regarding the down payment, clearance, lay-out, receipt of the key of the house,
salary deduction, none of which he ever saw. 13

Averring in fine that his acts in question were done without malice, Alauya prays
for the dismissal of the complaint for lack of merit, it consisting of "fallacious,
malicious and baseless allegations," and complainant Alawi having come to the
Court with unclean hands, her complicity in the fraudulent housing loan being
apparent and demonstrable.
It may be mentioned that in contrast to his two (2) letters to Assistant Clerk of
Court Marasigan (dated April 19, 1996 and April 22, 1996), and his two (2) earlier
letters both dated December 15, 1996 all of which he signed as "Atty. Ashary
M. Alauya" in his Comment of June 5, 1996, he does not use the title but
refers to himself as "DATU ASHARY M. ALAUYA."

cda

The Court referred the case to the Office of the Court Administrator for
evaluation, report and recommendation. 14
The first accusation against Alauya is that in his aforesaid letters, he made
"malicious and libelous charges (against Alawi) with no solid grounds through
manifest ignorance and evident bad faith," resulting in "undue injury to (her) and
blemishing her honor and established reputation." In those letters, Alauya had
written inter aliathat:
1) Alawi obtained his consent to the contracts in question "by gross
misrepresentation, deceit, fraud, dishonesty and abuse of
confidence;"
2) Alawi acted in bad faith and perpetrated . . . illegal and
unauthorized acts . . . prejudicial to . . . (his) rights and
interests;"
3) Alawi was an "unscrupulous (and "swindling") sales agent" who
had fooled him by "deceit, fraud, misrepresentation,
dishonesty and abuse of confidence;" and
4) Alawi had maliciously and fraudulently manipulated the contract
with Villarosa & Co., and unlawfully secured and pursued the

housing loan without . . . (his) authority and against . . . (his)

will," and "concealed the real facts . . ."
Alauya's defense essentially is that in making these statements, he was merely
acting in defense of his rights, and doing only what "is expected of any man
unduly prejudiced and injured," who had suffered "mental anguish, sleepless
nights, wounded feelings and untold financial suffering," considering that in six
months, a total of P26,028.60 had been deducted from his salary. 15
The Code of Conduct and Ethical Standards for Public Officials and
Employees (RA 6713) inter alia enunciates the State policy of promoting a high
standard of ethics and utmost responsibility in the public service.

16

Section 4 of

the Code commands that "(p)ublic officials and employees . . . at all times respect
the rights of others, and . . . refrain from doing acts contrary to law, good morals,
good

customs,

public

policy,

public

order,

public

safety

and

public

interest." 17 More than once has this Court emphasized that "the conduct and
behavior of every official and employee of an agency involved in the
administration of justice, from the presiding judge to the most junior clerk, should
be circumscribed with the heavy burden of responsibility. Their conduct must at
all times be characterized by, among others, strict propriety and decorum so as to
earn and keep the respect of the public for the judiciary." 18
Now, it does not appear to the Court consistent with good morals, good customs
or public policy, or respect for the rights of others, to couch denunciations of acts
believed however sincerely to be deceitful, fraudulent or malicious, in
excessively intemperate, insulting or virulent language. Alauya is evidently
convinced that he has a right of action against Sophia Alawi. The law requires
that he exercise that right with propriety, without malice or vindictiveness, or
undue harm to anyone; in a manner consistent with good morals, good customs,
public policy, public order, supra; or otherwise stated, that he "act with justice,
give everyone his due, and observe honesty and good faith."

19 Righteous

indignation, or vindication of right cannot justify resort to vituperative language, or

downright name-calling. As a member of the Shari'a Bar and an officer of a
Court, Alawi is subject to a standard of conduct more stringent than for most

other government workers. As a man of the law, he may not use language which
is abusive, offensive, scandalous, menacing, or otherwise improper.

20 As

judicial employee, it is expected that he accord respect for the person and the
rights of others at all times, and that his every act and word should be
characterized by prudence, restraint, courtesy, dignity. His radical deviation from
these salutary norms might perhaps be mitigated, but cannot be excused, by his
strongly held conviction that he had been grievously wronged.
As regards Alauya's use of the title of "Attorney," this Court has already had
occasion to declare that persons who pass the Shari'a Bar are not full-fledged
members of the Philippine Bar, hence may only practice law before Shari'a
courts. 21 While one who has been admitted to the Shari'a Bar, and one who has
been admitted to the Philippine Bar, may both be considered "counsellors," in the
sense that they give counsel or advice in a professional capacity, only the latter is
an "attorney." The title of "attorney" is reserved to those who, having obtained the
necessary degree in the study of law and successfully taken the Bar
Examinations, have been admitted to the Integrated Bar of the Philippines and
remain members thereof in good standing; and it is they only who are authorized
to practice law in this jurisdiction.
Alauya says he does not wish to use the title, "counsellor" or "counsellor-at-law,"
because in his region, there are pejorative connotations to the term, or it is
confusingly similar to that given to local legislators. The ratiocination, valid or not,
is of no moment. His disinclination to use the title of "counsellor" does not warrant
his use of the title of attorney.
Finally, respecting Alauya's alleged unauthorized use of the franking privilege, the
record contains no evidence adequately establishing the accusation.
WHEREFORE, respondent Ashari M. Alauya is hereby REPRIMANDED for the
use of excessively intemperate, insulting or virulent language, i.e., language
unbecoming a judicial officer, and for usurping the title of attorney; and he is
warned that any similar or other impropriety or misconduct in the future will be
dealt with more severely.

SO ORDERED.
|||

(Alawi v. Alauya, A.M. SDC-97-2-P, February 24, 1997)

SANTA PANGAN, complainant, vs. ATTY.

DIONISIO RAMOS, respondent.

RESOLUTION

ANTONIO, J :
p

This has reference to the motion of complainant, Santa Pangan, to

cite respondent Dionisio Ramos for contempt. It appears from the record
that on September 7, 1978 and March 13, 1979, the hearings in this
administrative case were postponed on the basis of respondent's motions
for postponement. These motions were predicated on respondent's
allegations that on said dates he had a case set for hearing before
Branch VII, Court of First Instance of Manila, entitled People v. Marieta
M. Isip (Criminal Case No. 35906). Upon verification, the attorney of
record of the accused in said case is one "Atty. Pedro D.D. Ramos, 306
Doa Salud Bldg., Dasmarias, Manila." Respondent admits that he used
the name of "Pedro D.D. Ramos" before said court in connection with
Criminal Case No. 35906, but avers that he had a right to do so because
in his Birth Certificate (Annex "A"), his name is "Pedro Dionisio Ramos",
and his parents are PedroRamos and Carmen Dayaw, and that the "D.D."
in "Pedro D.D. Ramos" is but an abbreviation of "Dionisio Dayaw", his
other given name and maternal surname.

cdll

This explanation of respondent is untenable. The name appearing

in the "Roll of Attorneys" is "Dionisio D. Ramos". The attorney's roll or

register is the official record containing the names and signatures of

those who are authorized to practice law. A lawyer is not authorized to
use a name other than the one inscribed in the Roll of Attorneys in his
practice of law.
The official oath obliges the attorney solemnly to swear that he "will
do no falsehood". As an officer in the temple of justice, an attorney has
irrefragable obligations of "truthfulness, candor and frankness". 1 Indeed,
candor and frankness should characterize the conduct of the lawyer at
every stage. This has to be so because the court has the right to rely
upon him in ascertaining the truth. In representing himself to the court as
"Pedro D.D. Ramos" instead of "Dionisio D.Ramos", respondent has
violated his solemn oath.
The duty of an attorney to the courts to employ, for the purpose of
maintaining the causes confided to him, such means as are consistent
with truth and honor, cannot be overemphasized. These injunctions
circumscribe the general duty of entire devotion of the attorney to the
client. As stated in a case, his "high vocation is to correctly inform the
court upon the law and the facts of the case, and to aid it in doing justice
and arriving at correct conclusions. He violates his oath of office when he
resorts to deception, or permits his client to do so." 2
In using the name of "Pedro D.D. Ramos" before the courts instead
of the name by which he was authorized to practice law Dionisio
D. Ramos respondent in effect resorted to deception. He
demonstrated lack of candor in dealing with the courts. The circumstance
that this is his first aberration in this regard precludes Us from imposing a
more severe penalty.

LLphil

WHEREFORE, in view of the foregoing, respondent Dionisio

D. Ramos is severely REPRIMANDED and warned that a repetition of the
same overt act may warrant his suspension or disbarment from the
practice of law.

It appearing that the hearing of this case has been unduly delayed,
the Investigator of this Court is directed forthwith to proceed with the
hearing to terminate it as soon as possible. The request of complainant to
appear in the afore-mentioned hearing, assisted by her counsel, Atty.
Jose U. Lontoc, is hereby granted.
SO ORDERED.
Barredo, (Chairman), Concepcion Jr. and Abad Santos, JJ., concur.
Santos., is on official leave.
Aquino, J., in the result.
|||

(Pangan v. Ramos, Adm. Case No. 1053 (Resolution), September 07, 1979)

PHILIPPINE LAWYER'S ASSOCIATION, petitioner, vs.

CELEDONIO AGRAVA, in his capacity as Director of the
Philippines Patent Office, respondent.
Arturo A. Alafriz for petitioner.
Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for
respondent.
SYLLABUS
1. ATTORNEYS AT LAW; PRACTICE OF LAW; BEFORE PATENT
OFFICE. Practice of law in the Philippines includes such appearance
before the Patent Office, the representation of applicants, oppositors, and
other persons, and the prosecution of their applications for patent, their
oppositions thereto or the enforcement of their rights in patent cases.
2. ID.; ID.; ID.; WITHOUT FURTHER EXAMINATION. A member of
the bar, because of his legal knowledge and training should be allowed to

practice before the Patent Office, without further examination or other

qualification.
3. ID.; ID.; ID.; REASON. Under the present law, members of
the Philippine Bar authorized by the Supreme Court to practice law, and in
good standing, may practice their profession before the Patent Office, for the
reason that much of the business in said office involves the interpretation and
determination of the scope and application of the patent law and other laws
applicable as well as the presentation of evidence to establish facts involved.
That part of the functions of the Patent Director are judicial or quasi-judicial,
so much so that appeals from his orders and decision are under the law taken
to the Supreme Court.

DECISION

MONTEMAYOR, J :
p

This is a petition filed by the Philippine Lawyer's Association for

prohibition and injunction against Celedonio Agrava, in his capacity as
Director of the Philippines Patent Office.
On May 27, 1957, respondent Director issued a circular announcing that
he had scheduled for June 27, 1957 an examination for the purpose of
determining who are qualified to practice as patent attorneys before the
Philippines Patent Office, the said examination to cover patent law and
jurisprudence and the rules of practice before said office. According to the
circular, members of the Philippine Bar, engineers and other persons with
sufficient scientific and technical training are qualified to take the said
examination. It would appear that heretofore, respondent Director has been
holding similar examinations.
It is the contention of the petitioner Philippine Lawyer's Association that
one of the petitioner Philippine Lawyer's Association that one who has passed

the bar examinations and is licensed by the Supreme Court to practice law in
the Philippines and who is in good standing, is duly qualified to practice before
the Philippines Patent Office, and that consequently, the act of the respondent
Director requiring members of the Philippine Bar in good standing to take and
pass an examination given by the Patent Office as a condition precedent to
their being allowed to practice before said office, such as representing
applicants in the preparation and prosecution of applications for patent, is in
excess of his jurisdiction and is in violation of the law.
In his answer, respondent Director, through the Solicitor General,
maintains that the prosecution of patent cases "does not involve entirely or
purely the practice of law but includes the application of scientific and
technical knowledge and training, so much so that, as a matter of actual
practice, the prosecution of patent cases may be handled not only by lawyers,
but also by engineers and other persons with sufficient scientific and technical
training who pass the prescribed examinations as given by the Patent
Office; . . . that the Rules of Court do not prohibit the Patent Office, or any
other quasi-judicial body from requiring further condition or qualification from
those who would wish to handle cases before such bodies, as in the
prosecution of patent cases before the Patent Office which, as stated in the
preceding paragraph, requires more of an application of scientific and
technical knowledge than the mere application of provisions of law; . . . that
the action taken by the respondent is in accordance with Republic Act No.
165, otherwise known as the Patent Law of the Philippines, which is similar to
the United States Patent Law, in accordance with which the United States
Patent Office has also prescribed a similar examination as what prescribed by
respondent. . . . ."
Respondent further contends that just as the Patent Law of the United
States of America authorizes the Commissioner of Patents to prescribe
examinations to determine as to who may practice before the United States
Patent Office, the respondent, is similarly authorized to do so by our Patent
Law, Republic Act No. 165.

Although as already stated, the Director of Patents, in the past, would

appear to have been holding tests or examinations the passing of which was
imposed as a required qualification to practice before the Patent Office, to our
knowledge, this is the first time that the right of the Director of Patents to do
so, specially as regards members of the bar, has been questioned formally, or
otherwise put in issue. And we have given it careful thought and
consideration.
The Supreme Court has the exclusive and constitutional power with
respect to admission to the practice of law in the Philippines 1 and any
member of thePhilippine Bar in good standing may practice law anywhere and
before any entity, whether judicial or quasi-judicial or administrative, in the
Philippines. Naturally, the question arises as to whether or not appearance
before the Patent Office and the preparation and prosecution of patent
applications, etc., constitutes or is included in the practice of law.
"The practice of law is not limited to the conduct of cases or
litigation in court; it embraces the preparation of pleadings and other
papers incident to actions and special proceedings, the management of
such actions and proceedings on behalf of clients before judges and
courts, and in addition, conveying. In general, all advice to clients, and
all action taken for them in matters connected with the law incorporation
services, assessment and condemnation services contemplating an
appearance before a judicial body, the foreclosure of a mortgage,
enforcement of a creditor's claim in bankruptcy and insolvency
proceedings, and conducting proceedings in attachment, and in matters
of estate and guardianship have been held to constitute law practice, as
do the preparation and drafting of legal instruments, where the work
done involves the determination by the trained legal mind of the legal
effect of facts and conditions." (5 Am. Jur. p. 262, 263). (Italics supplied)
"Practice of law under modern conditions consists in no small part
of work performed outside of any court and having no immediate relation
to proceedings in court. It embraces conveyancing, the giving of legal

advice on a large variety of subjects, and the preparation and execution

of legal instruments covering an extensive field of business and trust
relations and other affairs. Although these transactions may have no
direct connection with court proceedings, they are always subject to
become involved in litigation. They require in many aspects a high
degree of legal skill, a wide experience with men and affairs, and great
capacity for adaptation to difficult and complex situations. These
customary functions of an attorney or counselor at law bear an intimate
relation to the administration of justice by the courts. No valid distinction,
so far as concerns the question set forth in the order, can be drawn
between that part of the work of the lawyer which involves appearance in
court and that part which involves advice and drafting of instruments in
his office. It is of importance to the welfare of the public that these
manifold customary functions be performed by persons possessed of
adequate learning and skill, of sound moral character, and acting at all
times under the heavy trust obligations to clients which rests upon all
attorneys." (Moran, Comments on the Rules of Court, Vol. 3 (1953 ed.),
p. 665-666, citing In re Opinion of the Justices (Mass.), 194 N. E. 313,
quoted in Rhode Is. Bar Assoc. vs. Automobile Service Assoc. (R. I.) 179
A. 139, 144). (Emphasis supplied)

In our opinion, the practice of law includes such appearance before the Patent
Office, the representation of applicants, oppositors, and other persons, and
the prosecution of their applications for patent, their oppositions thereto, or the
enforcement of their rights in patent cases. In the first place, although the
transaction of business in the Patent Office involves the use and application of
technical and scientific knowledge and training, still, all such business has to
be conducted and all orders and decisions of the Director of Patents have to
be rendered in accordance with the Patent Law, as well as other laws,
including the Rules and Regulations promulgated by the Patent Office in
accordance with law. Not only this, but practice before the Patent Office
involves the interpretation and application of other laws and legal principles,
as well as the existence of facts to be established in accordance with the law

of evidence and procedure. For instance: Section 8 of our Patent Law

provides that an invention shall not be patentable if it is contrary to public
order or morals, or to public health or welfare. Section 9 says that an invention
shall not be considered new or patentable if it was known or used by others in
the Philippines before the invention thereof by the inventor named in the
application for patent, or if it was patented or described in any printed
publication in the Philippines or any foreign country more than one year before
the application for a patent therefor, or if it had been in public use or on sale in
the Philippines for more than one year before the application for the patent
therefor. Section 10 provides that the right to the patent belongs to the true
and actual inventor, his heirs, legal representatives or assigns, and Section 12
says that an application for a patent may be filed only by the inventor, his
heirs, legal representatives or assigns. Section 25 and 26 refer to correction of
any mistake in a patent. Section 28 enumerates the grounds for cancellation
of a patent; that although any person may apply for such cancellation, under
Section 29, the Solicitor General is authorized to petition for the cancellation
of a patent. Section 30 mentions the requirements of a petition for
cancellation. Sections 31 and 32 provide for a notice of hearing of the petition
for cancellation of the patent by the Director of Patents in case the said
cancellation is warranted. Under Section 34, at any time after the expiration of
three years from the day the patent was granted, any person may apply for the
grant of a license under a particular patent on several grounds, such as, if the
patented invention is not being worked in the Philippines on a commercial
scale, or if the demand for the patented article in the Philippines is not being
met to an adequate extent and reasonable terms, or if by reason of the
patentee's refusal to grant a license on reasonable terms or by reason of the
conditions attached by him to the license, purchase, lease or use of the
patented article or working of the patented process or machine of production,
the establishment of a new trade or industry in the Philippines is prevented; or
if the patent or invention relates to food or medicine or is necessary to public
health or public safety. All these things involve the application of laws, legal

principles, practice and procedure. They call for legal knowledge, training and
experience for which a member of the bar has been prepared.
In support of the proposition that much of the business and many of the
acts, orders and decisions of the Patent Director involve questions of law or a
reasonable and correct evaluation of facts, the very Patent Law, Republic Act
No. 165, Section 61, provides that:
". . . . The applicant for a patent or for the registration of a design,
any party to a proceeding to cancel a patent or to obtain a compulsory
license, and any party to any other proceeding in the Office may appeal
to the Supreme Court from any final order or decision of the Director."

In other words, the appeal is taken to this Tribunal. If the transaction of

business in the Patent Office and the acts, orders and decisions of the Patent
Director involved exclusively or mostly technical and scientific knowledge and
training, then logically, the appeal should be taken not to a court or judicial
body, but rather to a board of scientists, engineers or technical men, which is
not the case.
Another aspect of the question involves the consideration of the nature
of the functions and acts of the Head of the Patent Office.
". . . . The Commissioner, in issuing or withholding patents, in
reissues,

interferences,

and

extensions,

exercises

quasi-judicial

functions. Patents are public records, and it is the duty of the

Commissioner to give authenticated copies to any person, on payment of
the legal fees." (40 Am. Jur. 537). (Emphasis supplied). ". . . . The
Commissioner has the only original initiatory jurisdiction that exists up to
the granting and delivering of a patent, and it is his duty to decide
whether the patent is new and whether it is the proper subject of a
patent; and his action in awarding or refusing a patent is a judicial
function. In passing on an application the commissioner should decide
not only questions of law, but also questions of fact, as whether there

has been a prior public use or sale of the article invented. . . . ." (60 C. J.
S. 460). (Emphasis supplied).

The Director of Patents, exercising as he does judicial or quasi-judicial

functions, it is reasonable to hold that a member of the bar, because of his
legal knowledge and training, should be allowed to practice before the Patent
Office, without further examination or other qualification. Of course, the
Director of Patents, if he deems it advisable or necessary, may require that
members of the bar practising before him enlist the assistance of technical
men and scientists in the preparation of papers and documents, such as, the
drawing or technical description of an invention or machine sought to be
patented, in the same way that a lawyer filing an application for the registration
of a parcel of land on behalf of his client, is required to submit a plan and
technical description of said land, prepared by a licensed surveyor.
But respondent Director claims that he is expressly authorized by the
law to require persons desiring to practice or to do business before him to
submit to an examination, even if they are already members of the bar. He
contends that our Patent Law, Republic Act No. 165, is patterned after the
United States Patent Law; and that the U. S. Patent Office in its Rules of
Practice of the United States Patent Office in Patent Cases prescribes an
examination similar to that which he (respondent) has prescribed and
scheduled. He invites our attention to the following provisions of said Rules of
Practice:
"Registration of attorneys and agents. A register of attorneys
and a register of agents are kept in the Patent Office on which are
entered the names of all persons recognized as entitled to represent
applicants before the Patent Office in the preparation and prosecution of
applications for patent. Registration in the Patent Office under the
provisions of these rules shall only entitle the person registered to
practice before the Patent Office.
"(a) Attorneys at law. Any attorney at law in good standing
admitted to practice before any United States Court or the highest court

of any State or Territory of the United States who fulfills the requirements
and complied with the provisions of these rules may be admitted to
practice before the Patent Office and have his name entered on the
register of attorneys.
xxx xxx xxx
"(c) Requirement for registration. No person will be admitted to
practice and register unless he shall apply to the Commissioner of
Patents in writing on a prescribed form supplied by the Commissioner
and furnish all requested information and material; and shall establish to
the satisfaction of the Commissioner that he is of good moral character
and of good repute and possessed of the legal and scientific and
technical qualifications necessary to enable him to render applicants for
patent valuable service, and is otherwise competent to advise and assist
him in the presentation and prosecution of their application before the
Patent Office. In order that the Commissioner may determine whether a
person seeking to have his name placed either of the registers has the
qualifications specified, satisfactory proof of good moral character and
repute, and of sufficient basic training in scientific and technical matters
must be submitted and an examination which is held from time to time
must be taken and passed. The taking of an examination may be waived
in the case of any person who has served for three years in the
examining corps of the Patent Office."

Respondent states that the promulgation of the Rules of Practice of the United
States Patent Office in Patent Cases is authorized by the United States Patent
Law itself, which reads as follows:
"The Commissioner of Patents, subject to the approval of the
Secretary of Commerce may prescribe rules and regulations governing
the recognition of agents, attorneys, or other persons representing
applicants or other parties before his office, and may require of such
persons,

agents,

or attorneys,

before

being

recognized

as

representatives of applicants or other persons, that they shall show they

are of good moral character and in good repute, are possessed of the
necessary qualifications to enable them to render to applicants or other
persons valuable service, and are likewise competent to advise and
assist applicants or other persons in the presentation or prosecution of
their applications or other business before the Office. The Commissioner
of Patents may, after notice and opportunity for a hearing, suspend or
exclude, either generally or in any particular case, from further practice
before his office any person, agent, or attorney shown to be incompetent
or disreputable, or guilty of gross misconduct, or who refuses to comply
with the said rules and regulations, or who shall, with intent to defraud in
any manner, deceive, mislead, or threaten any applicant or prospective
applicant, or other person having immediate or prospective business
before the office, by word, circular, letter, or by advertising. The reasons
for any such suspension or exclusion shall be duly recorded. The action
of the Commissioner may be reviewed upon the petition of the person so
refused recognition or so suspended or excluded by the district court of
the United States for the District of Columbia under such conditions and
upon such proceedings as the said court may by its rules determine."
(Emphasis supplied).

Respondent Director concludes that Section 78 of Republic Act No.

165 being similar to the provisions of law just reproduced, then he is
authorized to prescribe the rules and regulations requiring that persons
desiring to practice before him should submit to and pass an examination. We
reproduce said Section 78,Republic Act No. 165, for purposes of comparison:
"SEC. 78. Rules and regulations. The Director subject to the
approval of the Secretary of Justice, shall promulgate the necessary
rules and regulations, not inconsistent with law, for the conduct of all
business in the Patent Office."

The above provisions of Section 78 certainly and by far, are different from the
provisions of the United States Patent Law as regards authority to hold
examinations to determine the qualifications of those allowed to practice

before the Patent Office. While the U. S. Patent Law authorizes the
Commissioner of Patents to require attorneys to show that they possess the
necessary qualifications and competence to render valuable service to and
advise and assist their clients in patent cases, which showing may take the
form of a test or examination to be held by the Commissioner, our Patent Law,
Section 78, is silent on this important point. Our attention has not been called
to any express provision of our Patent Law, giving such authority to determine
the qualifications of persons allowed to practice before the Patent Office.
Section 551 of the Revised Administrative Code authorizes every chief
of bureau to prescribe forms and make regulations or general orders not
inconsistent with law, to secure the harmonious and efficient administration of
his branch of the service and to carry into full effect the laws relating to
matters within the jurisdiction of his bureau. Section 608 of Republic Act 1937,
known as the Tariff and Customs Code of the Philippines, provides that the
Commissioner of Customs shall, subject to the approval of the Department
Head, make all rules and regulations necessary to enforce the provisions of
said code. Section 338 of the National Internal Revenue
Code, Commonwealth Act No. 466 as amended, states that the Secretary of
Finance, upon recommendation of the Collector of Internal Revenue, shall
promulgate all needful rules and regulations for the effective enforcement of
the provisions of the code. We understand that rules and regulations have
been promulgated not only for the Bureaus of Customs and Internal Revenue,
but also for other bureaus of the Government, to govern the transaction of
business in and to enforce the law for said bureaus.
Were we to allow the Patent Office, in the absence of an express and
clear provision of law giving the necessary sanction, to require lawyers to
submit to and pass on examination prescribed by it before they are allowed to
practice before said Patent Office, then there would be no reason why other
bureaus specially the Bureaus of Internal Revenue and Customs, where the
business in the same area are more or less complicated, such as the
presentation of books of accounts, balance sheets, etc., assessments

exemptions, depreciation, these as regards the Bureau of Internal Revenue,

and the classification of goods, imposition of customs duties, seizures,
confiscation, etc., as regards the Bureau of Customs, may not also require
that any lawyer practising before them or otherwise transacting business with
them on behalf of clients, shall first pass an examination to qualify.
In conclusion, we hold that under the present law, members of
the Philippine Bar authorized by this Tribunal to practice law, and in good
standing, may practice their profession before the Patent Office, for the reason
that much of the business in said office involves the interpretation and
determination of the scope and application of the Patent Law and other laws
applicable, as well as the presentation of evidence to establish facts involved;
that part of the functions of the Patent Director are judicial or quasi-judicial, so
much so that appeals from his orders and decisions are, under the law, taken
to the Supreme Court.
For the foregoing reasons, the petition for prohibition is granted and the
respondent Director is hereby prohibited from requiring members of
the PhilippineBar to submit to an examination or tests and pass the same
before being permitted to appear and practice before the Patent Office. No
costs.
Paras, C.J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador,
Concepcion, Reyes, J.B.L. and Endencia, JJ., concur.
|||

(Philippine Lawyer's Ass'n. v. Agrava, G.R. No. L-12426, February 16, 1959)

LESLIE UI, complainant, vs. ATTY. IRIS BONIFACIO, respondent.

SYLLABUS

1. LEGAL AND JUDICIAL ETHICS; PRACTICE OF LAW; A PRIVILEGE. The

practice of law is a privilege. A bar candidate does not have the right to enjoy the
practice of the legal profession simply by passing the bar examinations. It is a
privilege that can be revoked, subject to the mandate of due process, once a
lawyer violates his oath and the dictates of legal ethics.
2. ID.; ID.; REQUISITES FOR ADMISSION. The requisites for admission to
the practice of law are: a. he must be a citizen of the Philippines; b. a resident
thereof; c. at least twenty-one (21) years of age; d. a person of good moral
character; e. he must show that no charges against him involving moral turpitude,
are filed or pending in court; f. possess the required educational qualifications;
and g. pass the bar examinations.

AEDCHc

3. ID.; ID.; POSSESSION OF GOOD MORAL CHARACTER MUST BE

CONTINUOUS. Clear from the foregoing is that one of the conditions prior to
admission to the bar is that an applicant must possess good moral character.
More importantly, possession of good moral character must be continuous as a
requirement to the enjoyment of the privilege of law practice, otherwise, the loss
thereof is a ground for the revocation of such privilege. It has been held "If
good moral character is a sine qua nonfor admission to the bar, then the
continued possession of good moral character is also a requisite for retaining
membership in the legal profession. Membership in the bar may be terminated
when a lawyer ceases to have good moral character. (Royong vs. Oblena, 117
Phil. 865). A lawyer may be disbarred for "grossly immoral conduct, or by reason
of his conviction of a crime involving moral turpitude." A member of the bar
should have moral integrity in addition to professional probity. It is difficult to state
with precision and to fix an inflexible standard as what is "grossly immoral
conduct" or to specify the moral delinquency and obliquity which render a lawyer
unworthy of continuing as a member of the bar. The rule implies that what
appears to be unconventional behavior to the straight-laced may not be the
immoral conduct that warrants disbarment. Immoral conduct has been defined as
"that conduct which is willful, flagrant, or shameless, and which shows moral

indifference to the opinion of the good and respectable members of the

community."
4. ID.; ID.; ID.; LAWYERS MUST HANDLE THEIR PERSONAL AFFAIRS WITH
GREAT CAUTION. Perhaps morality in our liberal society today is a far cry
from what it used to be before. This permissiveness notwithstanding, lawyers, as
keepers of public faith, are burdened with a higher degree of social responsibility
and thus must handle their personal affairs with greater caution.
5. ID.; ID.; ID.; ID.; VIOLATED IN CASE AT BAR. In the case at bar, it is the
claim of respondent Atty. Bonifacio that when she met Carlos Ui, she knew and
believed him to be single. Respondent fell in love with him and they got married
and as a result of such marriage, she gave birth to two (2) children. Upon her
knowledge of the true civil status of Carlos Ui, she left him. . . . The facts of this
case lead us to believe that perhaps respondent would not have found herself in
such a compromising situation had she exercised prudence and been more
vigilant in finding out more about Carlos Ui's personal background prior to her
intimate involvement with him. Surely, circumstances existed which should have
at least aroused respondent's suspicion that something was amiss in her
relationship with Carlos Ui, and moved her to ask probing questions. For
instance, respondent admitted that she knew that Carlos Ui had children with a
woman from Amoy, China, yet it appeared that she never exerted the slightest
effort to find out if Carlos Ui and this woman were indeed unmarried. Also,
despite their marriage in 1987, Carlos Ui never lived with respondent and their
first child, a circumstance that is simply incomprehensible considering
respondent's allegation that Carlos Ui was very open in courting her. All these
taken together leads to the inescapable conclusion that respondent was
imprudent in managing her personal affairs.
6. ID.;

DISBARMENT;

GROSSLY

IMMORAL

CONDUCT;

BELIED

BY

RESPONDENT'S ACT OF IMMEDIATELY DISTANCING HERSELF FROM A

MARRIED MAN UPON DISCOVERING HIS TRUE CIVIL STATUS. However,
the fact remains the her relationship with Carlos Ui, clothed as it was with what
respondent believed was a valid marriage, cannot be considered immoral. For

immorality connotes conduct that shows indifference to the moral norms of

society and the opinion of good and respectable members of the community.
Moreover, for such conduct to warrant disciplinary action, the same must be
"grossly immoral," that is, it must be so corrupt and false as to constitute a
criminal act or so unprincipled as to be reprehensible to a high degree. We have
held that "a member of the Bar and officer of the court is not only required to
refrain from adulterous relationships . . . but must also so behave himself as to
avoid scandalizing the public by creating the belief that he is flouting those moral
standards." Respondent's act of immediately distancing herself from Carlos Ui
upon discovering his true status belies just that alleged moral indifference and
proves that she had no intention of flaunting the law and high moral standard of
the legal profession. Complaint's bare assertions to the contrary deserve no
credit. After all, the burden of proof rests upon the complaint, and the Court will
exercise its disciplinary powers only if she establishes her case by clear,
convincing and satisfactory evidence. This herein complaint miserably failed to
do.
7. ID.; DUTY OF LAWYERS; TO ADHERE UNWAVERINGLY TO THE HIGHEST
STANDARDS OF MORALITY. It is the bounden duty of lawyers to adhere
unwaveringly to the highest standards of morality. The legal profession exacts
from its members nothing less. Lawyers are called upon to safeguard the integrity
of the Bar, free from misdeeds and acts constitutive of malpractice. Their exalted
positions as officers of the court demand no less than the highest degree of
morality.
8. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; CONTRARY
TO HUMAN EXPERIENCE AND HIGHLY IMPROBABLE FOR A LAWYER TO
FORGET THE YEAR OF HER MARRIAGE. On the matter of the falsified
Certificate of Marriage attached by respondent to her Answer, we find improbable
to believed the averment of respondent that she merely relied on the photocopy
of the Marriage Certificate which was provided her by Carlos Ui. For an event as
significant as a marriage ceremony, any normal bride would verily recall the date
and year of her marriage. It is difficult to fathom how a bride, especially a lawyer

as in the case at bar, can forget the year when she got married. Simply stated, it
is contrary to human experience and highly improbable. Furthermore, any
prudent lawyer would verify the information contained in an attachment to her
pleading, especially so when she has personal knowledge of the facts and
circumstances contained therein. In attaching such Marriage Certificate with an
intercalated date, the defense of good faith of respondent on that point cannot
stand.

DECISION

DE LEON, JR., J :
p

Before

us

is

an

administrative

complaint

for

disbarment

against

Atty. Iris Bonifacio for allegedly carrying on an immoral relationship with Carlos L.
Ui, husband of complainant, Leslie Ui.
The relevant facts are:
On January 24, 1971 complainant Leslie Ui married Carlos L. Ui at the Our Lady
of Lourdes Church in Quezon City 1 and as a result of their marital union, they
had four (4) children, namely, Leilani, Lianni, Lindsay and Carl Cavin, all
surnamed Ui. Sometime in December 1987, however, complainant found out that
her husband, Carlos Ui, was carrying on an illicit relationship with respondent
Atty. Iris Bonifacio with whom he begot a daughter sometime in 1986, and that
they had been living together at No. 527 San Carlos Street, Ayala Alabang
Village in Muntinlupa City. Respondent who is a graduate of the College of Law of
the University of the Philippines was admitted to the Philippine Bar in 1982.

cda

Carlos Ui admitted to complainant his relationship with the respondent.

Complainant then visited respondent at her office in the later part of June 1988
and introduced herself as the legal wife of Carlos Ui. Whereupon, respondent
admitted to her that she has a child with Carlos Ui and alleged, however, that
everything was over between her and Carlos Ui. Complainant believed the

representations of respondent and thought things would turn out well from then
on and that the illicit relationship between her husband and respondent would
come to an end.
However, complainant again discovered that the illicit relationship between her
husband and respondent continued, and that sometime in December 1988,
respondent and her husband, Carlos Ui, had a second child. Complainant then
met again with respondent sometime in March 1989 and pleaded with
respondent to discontinue her illicit relationship with Carlos Ui but to no avail. The
illicit relationship persisted and complainant even came to know later on that
respondent had been employed by her husband in his company.
A complaint for disbarment, docketed as Adm. Case No. 3319, was then filed on
August 11, 1989 by the complainant against respondent Atty. Iris Bonifacio before
the Commission on Bar Discipline of the Integrated Bar of the Philippines
(hereinafter, Commission) on the ground of immorality, more particularly, for
carrying on an illicit relationship with the complainant's husband, Carlos Ui. In her
Answer, 2 respondent averred that she met Carlos Ui sometime in 1983 and had
known him all along to be a bachelor, with the knowledge, however, that Carlos Ui
had children by a Chinese woman in Amoy, China, from whom he had long been
estranged. She stated that during one of their trips abroad, Carlos Ui formalized
his intention to marry her and they in fact got married in Hawaii, USA in
1985. 3 Upon their return to Manila, respondent did not live with Carlos Ui. The
latter continued to live with his children in their Greenhills residence because
respondent and Carlos Ui wanted to let the children gradually to know and accept
the fact of his second marriage before they would live together. 4

prcd

In 1986, respondent left the country and stayed in Honolulu, Hawaii and she
would only return occasionally to the Philippines to update her law practice and
renew legal ties. During one of her trips to Manila sometime in June 1988,
respondent was surprised when she was confronted by a woman who insisted
that she was the lawful wife of Carlos Ui. Hurt and desolate upon her discovery of

the true civil status of Carlos Ui, respondent then left for Honolulu, Hawaii
sometime in July 1988 and returned only in March 1989 with her two (2) children.
On March 20, 1989, a few days after she reported to work with the law firm 5 she
was connected with, the woman who represented herself to be the wife of Carlos
Ui again came to her office, demanding to know if Carlos Ui has been
communicating with her.
It is respondent's contention that her relationship with Carlos Ui is not illicit
because they were married abroad and that after June 1988 when respondent
discovered Carlos Ui's true civil status, she cut off all her ties with him.
Respondent averred that Carlos Ui never lived with her in Alabang, and that he
resided at 26 Potsdam Street, Greenhills, San Juan, Metro Manila. It was
respondent who lived in Alabang in a house which belonged to her mother,
Rosalinda L. Bonifacio; and that the said house was built exclusively from her
parents' funds. 6 By way of counterclaim, respondent sought moral damages in
the amount of Ten Million Pesos (Php10,000,000.00) against complainant for
having filed the present allegedly malicious and groundless disbarment case
against respondent.
In her Reply 7 dated April 6, 1990, complainant states, among others, that
respondent knew perfectly well that Carlos Ui was married to complainant and
had children with her even at the start of her relationship with Carlos Ui, and that
the reason respondent went abroad was to give birth to her two (2) children with
Carlos Ui.

LibLex

During the pendency of the proceedings before the Integrated Bar, complainant
also charged her husband, Carlos Ui, and respondent with the crime of
Concubinage before the Office of the Provincial Fiscal of Rizal, docketed as I.S.
No. 89-5247, but the same was dismissed for insufficiency of evidence to
establish probable cause for the offense charged. The resolution dismissing the
criminal complaint against respondent reads:
Complainant's evidence had prima facie established the existence of the
"illicit relationship" between the respondents allegedly discovered by the

complainant in December 1987. The same evidence however show that

respondent Carlos Ui was still living with complainant up to the latter part
of 1988 and/or the early part of 1989.
It would therefore be logical and safe to state that the "relationship" of
respondents started and was discovered by complainant sometime in
1987 when she and respondent Carlos were still living at No. 26
Potsdam Street, Northeast Greenhills, San Juan, Metro Manila and they,
admittedly, continued to live together at their conjugal home up to early
(sic) part of 1989 or later 1988, when respondent Carlos left the same.
From the above, it would not be amiss to conclude that altho (sic) the
relationship,

illicit

as

complainant

puts

it,

had

been prima

facie established by complainant's evidence, this same evidence had

failed to even prima facie establish the "fact of respondent's cohabitation
in the concept of husband and wife at the 527 San Carlos St., Ayala
Alabang house, proof of which is necessary and indispensable to at least
create probable cause for the offense charged. The statement alone of
complainant, worse, a statement only of a conclusion respecting the fact
of cohabitation does not make the complainant's evidence thereto any
better/stronger (U.S. vs. Casipong and Mongoy, 20 Phil. 178).

LexLib

It is worth stating that the evidence submitted by respondents in support

of their respective positions on the matter support and bolster the
foregoing conclusion/recommendation.
WHEREFORE, it is most respectfully recommended that the instant
complaint be dismissed for want of evidence to establish probable cause
for the offense charged.
RESPECTFULLY SUBMITTED. 8

Complainant appealed the said Resolution of the Provincial Fiscal of Rizal to the
Secretary of Justice, but the same was dismissed 9 on the ground of insufficiency
of evidence to prove her allegation that respondent and Carlos Ui lived together

as husband and wife at 527 San Carlos Street, Ayala Alabang, Muntinlupa, Metro
Manila.
In the proceedings before the IBP Commission on Bar Discipline, complainant
filed a Motion to Cite Respondent in Contempt of the Commission

10

wherein she

charged respondent with making false allegations in her Answer and for
submitting a supporting document which was altered and intercalated. She
alleged that in the Answer of respondent filed before the Integrated Bar,
respondent averred, among others, that she was married to Carlos Ui on October
22, 1985 and attached a Certificate of Marriage to substantiate her averment.
However, the Certificate of Marriage 11 duly certified by the State Registrar as a
true copy of the record on file in the Hawaii State Department of Health, and duly
authenticated by the Philippine Consulate General in Honolulu, Hawaii, USA
revealed that the date of marriage between Carlos Ui and respondent
Atty. Iris Bonifacio was October 22, 1987, and not October 22, 1985 as claimed
by respondent in her Answer. According to complainant, the reason for that false
allegation was because respondent wanted to impress upon the said IBP that the
birth of her first child by Carlos Ui was within the wedlock.

12

It is the contention of

complainant that such act constitutes a violation of Articles 183 13 and 184 14 of
the Revised Penal Code, and also contempt of the Commission; and that the act
of respondent in making false allegations in her Answer and submitting an
altered/intercalated document are indicative of her moral perversity and lack of
integrity which make her unworthy to be a member of the Philippine Bar.
In her Opposition (To Motion To Cite Respondent in Contempt),

15

LexLib

respondent

averred that she did not have the original copy of the marriage certificate
because the same was in the possession of Carlos Ui, and that she annexed
such copy because she relied in good faith on what appeared on the copy of the
marriage certificate in her possession.
Respondent filed her Memorandum 16 on February 22, 1995, and raised the lone
issue of whether or not she has conducted herself in an immoral manner for
which she deserves to be barred from the practice of law. Respondent averred
that the complaint should be dismissed on two (2) grounds, namely:

(i) Respondent conducted herself in a manner consistent with the

requirement of good moral character for the practice of the legal
profession; and
(ii) Complainant failed to prove her allegation that respondent conducted
herself in an immoral manner.

17

In her defense, respondent contends, among others, that it was she who was the
victim in this case and not Leslie Ui because she did not know that Carlos Ui was
already married, and that upon learning of this fact, respondent immediately cutoff all her ties with Carlos Ui. She stated that there was no reason for her to doubt
at that time that the civil status of Carlos Ui was that of a bachelor because he
spent so much time with her, and he was so open in his courtship. 18

cdll

On the issue of the falsified marriage certificate, respondent alleged that it was
highly incredible for her to have knowingly attached such marriage certificate to
her Answer had she known that the same was altered. Respondent reiterated
that there was no compelling reason for her to make it appear that her marriage
to Carlos Ui took place either in 1985 or 1987, because the fact remains that
respondent and Carlos Ui got married before complainant confronted respondent
and informed the latter of her earlier marriage to Carlos Ui in June 1988. Further,
respondent stated that it was Carlos Ui who testified and admitted that he was
the person responsible for changing the date of the marriage certificate from
1987 to 1985, and complainant did not present evidence to rebut the testimony of
Carlos Ui on this matter.
Respondent posits that complainant's evidence, consisting of the pictures of
respondent with a child, pictures of respondent with Carlos Ui, a picture of a
garage with cars, a picture of a light colored car with Plate No. PNS 313, a
picture of the same car, and portion of the house and ground, and another picture
of the same car bearing Plate No. PNS 313 and a picture of the house and the
garage, 19 does not prove that she acted in an immoral manner. They have no
evidentiary value according to her. The pictures were taken by a photographer
from a private security agency and who was not presented during the hearings.

Further, the respondent presented the Resolution of the Provincial Fiscal of Pasig
in I.S. Case No. 89-5427 dismissing the complaint filed by Leslie Ui against
respondent for lack of evidence to establish probable cause for the offense
charged 20 and the dismissal of the appeal by the Department of Justice

21

to

bolster her argument that she was not guilty of any immoral or illegal act because
of her relationship with Carlos Ui. In fine, respondent claims that she entered the
relationship with Carlos Ui in good faith and that her conduct cannot be
considered as willful, flagrant, or shameless, nor can it suggest moral
indifference. She fell in love with Carlos Ui whom she believed to be single, and,
that upon her discovery of his true civil status, she parted ways with him.

dctai

In the Memorandum 22 filed on March 20, 1995 by complainant Leslie Ui, she
prayed for the disbarment of Atty. Iris Bonifacio and reiterated that respondent
committed immorality by having intimate relations with a married man which
resulted in the birth of two (2) children. Complainant testified that respondent's
mother, Mrs. LindaBonifacio, personally knew complainant and her husband
since the late 1970s because they were clients of the bank where
Mrs. Bonifacio was the Branch Manager. 23 It was thus highly improbable that
respondent, who was living with her parents as of 1986, would not have been
informed by her own mother that Carlos Ui was a married man. Complainant
likewise averred that respondent committed disrespect towards the Commission
for submitting a photocopy of a document containing an intercalated date.

In her Reply

to Complainant's Memorandum, 24 respondent stated that

complainant miserably failed to show sufficient proof to warrant her disbarment.

Respondent insists that contrary to the allegations of complainant, there is no
showing that respondent had knowledge of the fact of marriage of Carlos Ui to
complainant. The allegation that her mother knew Carlos Ui to be a married man
does not prove that such information was made known to respondent.
Hearing on the case ensued, after which the Commission on Bar Discipline
submitted its Report and Recommendation, finding that:

In the case at bar, it is alleged that at the time respondent was courted
by Carlos Ui, the latter represented himself to be single. The
Commission does not find said claim too difficult to believe in the light of
contemporary human experience.
Almost always, when a married man courts a single woman, he
represents himself to be single, separated, or without any firm
commitment to another woman. The reason therefor is not hard to
fathom. By their very nature, single women prefer single men.
The records will show that when respondent became aware the (sic) true
civil status of Carlos Ui, she left for the United States (in July of 1988).
She broke off all contacts with him. When she returned to the Philippines
in March of 1989, she lived with her brother, Atty. Teodoro Bonifacio, Jr.
Carlos Ui and respondent only talked to each other because of the
children whom he was allowed to visit. At no time did they live together.
Under the foregoing circumstances, the Commission fails to find any act
on the part of respondent that can be considered as unprincipled or
disgraceful as to be reprehensible to a high degree. To be sure, she was
more of a victim that (sic) anything else and should deserve compassion
rather than condemnation. Without cavil, this sad episode destroyed her
chance of having a normal and happy family life, a dream cherished by
every single girl.
xxx xxx xxx"

Thereafter, the Board of Governors of the Integrated Bar of the Philippines issued
a Notice of Resolution dated December 13, 1997, the dispositive portion of which
reads as follows:

LLphil

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and

APPROVED, the Report and Recommendation of the Investigating
Commissioner in the above-entitled case, herein made part of this
Resolution/Decision as Annex "A", and, finding the recommendation fully
supported by the evidence on record and the applicable laws and rules,

the complaint for Gross Immorality against Respondent is DISMISSED

for lack of merit. Atty. Iris Bonifacio is REPRIMANDED for knowingly and
willfully attaching to her Answer a falsified Certificate of Marriage with a
stern warning that a repetition of the same will merit a more severe
penalty.

We agree with the findings aforequoted.

The practice of law is a privilege. A bar candidate does not have the right to enjoy
the practice of the legal profession simply by passing the bar examinations. It is a
privilege that can be revoked, subject to the mandate of due process, once a
lawyer violates his oath and the dictates of legal ethics. The requisites for
admission to the practice of law are:
a. he must be a citizen of the Philippines;
b. a resident thereof;
c. at least twenty-one (21) years of age;
d. a person of good moral character;
e. he must show that no charges against him involving moral turpitude,
are filed or pending in court;
f. possess the required educational qualifications; and
g. pass the bar examinations. 25 (emphasis supplied)

Clear from the foregoing is that one of the conditions prior to admission to the bar
is that an applicant must possess good moral character. More importantly,
possession of good moral character must be continuous as a requirement to the
enjoyment of the privilege of law practice, otherwise, the loss thereof is a ground
for the revocation of such privilege. It has been held:
If good moral character is a sine qua non for admission to the bar, then
the continued possession of good moral character is also a requisite for
retaining membership in the legal profession. Membership in the bar may

be terminated when a lawyer ceases to have good moral character.

(Royong vs. Oblena, 117 Phil. 865).
A lawyer may be disbarred for "grossly immoral conduct, or by reason of
his conviction of a crime involving moral turpitude." A member of the bar
should have moral integrity in addition to professional probity.
It is difficult to state with precision and to fix an inflexible standard as to
what is "grossly immoral conduct" or to specify the moral delinquency
and obliquity which render a lawyer unworthy of continuing as a member
of the bar. The rule implies that what appears to be unconventional
behavior to the straight-laced may not be the immoral conduct that
warrants disbarment.
Immoral conduct has been defined as "that conduct which is willful,
flagrant, or shameless, and which shows a moral indifference to the
opinion of the good and respectable members of the community." (7
C.J.S. 959). 26

cdtai

In the case at bar, it is the claim of respondent Atty. Bonifacio that when she met
Carlos Ui, she knew and believed him to be single. Respondent fell in love with
him and they got married and as a result of such marriage, she gave birth to two
(2) children. Upon her knowledge of the true civil status of Carlos Ui, she left him
Simple as the facts of the case may sound, the effects of the actuations of
respondent are not only far from simple, they will have a rippling effect on how
the standard norms of our legal practitioners should be defined. Perhaps morality
in our liberal society today is a far cry from what it used to be before. This
permissiveness notwithstanding, lawyers, as keepers of public faith, are
burdened with a higher degree of social responsibility and thus must handle their
personal affairs with greater caution. The facts of this case lead us to believe that
perhaps respondent would not have found herself in such a compromising
situation had she exercised prudence and been more vigilant in finding out more
about Carlos Ui's personal background prior to her intimate involvement with him.

Surely, circumstances existed which should have at least aroused respondent's

suspicion that something was amiss in her relationship with Carlos Ui, and moved
her to ask probing questions. For instance, respondent admitted that she knew
that Carlos Ui had children with a woman from Amoy, China, yet it appeared that
she never exerted the slightest effort to find out if Carlos Ui and this woman were
indeed unmarried. Also, despite their marriage in 1987, Carlos Ui never lived with
respondent and their first child, a circumstance that is simply incomprehensible
considering respondent's allegation that Carlos Ui was very open in courting
her.

prcd

All these taken together leads to the inescapable conclusion that respondent was
imprudent in managing her personal affairs. However, the fact remains that her
relationship with Carlos Ui, clothed as it was with what respondent believed was
a valid marriage, cannot be considered immoral. For immorality connotes conduct
that shows indifference to the moral norms of society and the opinion of good and
respectable members of the community. 27 Moreover, for such conduct to warrant
disciplinary action, the same must be "grossly immoral," that is, it must be so
corrupt and false as to constitute a criminal act or so unprincipled as to be
reprehensible to a high degree. 28
We have held that "a member of the Bar and officer of the court is not only
required to refrain from adulterous relationships . . . but must also so behave
himself as to avoid scandalizing the public by creating the belief that he is flouting
those moral standards." 29 Respondent's act of immediately distancing herself
from Carlos Ui upon discovering his true civil status belies just that alleged moral
indifference and proves that she had no intention of flaunting the law and the high
moral standard of the legal profession. Complainant's bare assertions to the
contrary deserve no credit. After all, the burden of proof rests upon the
complainant, and the Court will exercise its disciplinary powers only if she
establishes her case by clear, convincing and satisfactory evidence.

30

This,

herein complainant miserably failed to do.

On the matter of the falsified Certificate of Marriage attached by respondent to
her Answer, we find improbable to believe the averment of respondent that she

merely relied on the photocopy of the Marriage Certificate which was provided
her by Carlos Ui. For an event as significant as a marriage ceremony, any normal
bride would verily recall the date and year of her marriage. It is difficult to fathom
how a bride, especially a lawyer as in the case at bar, can forget the year when
she got married. Simply stated, it is contrary to human experience and highly
improbable.
Furthermore, any prudent lawyer would verify the information contained in an
attachment to her pleading, especially so when she has personal knowledge of
the facts and circumstances contained therein. In attaching such Marriage
Certificate with an intercalated date, the defense of good faith of respondent on
that point cannot stand.
It is the bounden duty of lawyers to adhere unwaveringly to the highest standards
of morality. The legal profession exacts from its members nothing less. Lawyers
are called upon to safeguard the integrity of the Bar, free from misdeeds and acts
constitutive of malpractice. Their exalted positions as officers of the court demand
no less than the highest degree of morality.
WHEREFORE,

the

complaint

for

LexLib

disbarment

against

respondent

Atty. Iris L. Bonifacio, for alleged immorality, is hereby DISMISSED.

However, respondent is hereby REPRIMANDED for attaching to her Answer a
photocopy of her Marriage Certificate, with an altered or intercalated date thereof,
with a STERN WARNING that a more severe sanction will be imposed on her for
any repetition of the same or similar offense in the future.

|||

(Ui v. Bonifacio, A.C. No. 3319, June 08, 2000)

AURORA

SORIANO DELES, complainant, vs. VICENTE

E. ARAGONA, JR., respondent.

Vicente E. Aragona, Jr. in his own behalf.

Solicitor General for the Government.
SYLLABUS
1.REMEDIAL LAW; EVIDENCE; PRIVILEGED COMMUNICATION. Since
there is no doubt that the allegations made by the respondent in the questioned
motion for contempt are statements made in the course of a judicial proceeding
i.e., in C.A.R. cases 1254 and 1255 besides being relevant, pertinent or
material to the subject matter of the said cases, they are absolutely privileged,
thereby precluding any liability on the part of the respondent.
2.ID.; ID.; ID.; PRIVILEGE IS NOT AFFECTED BY LACK OF FACTUAL BASIS.
The charges levelled by the respondent against the complainant in the
questioned pleading lack sufficient factual basis. But even this circumstance will
not strengthen the complainant's position. "The privilege is not affected by factual
or legal inaccuracies in the utterances made in the course of judicial
proceedings." In fact, "even when the statements are found to be false, if there is
probable cause for belief in their truthfulness and the charge is made in good
faith, the mantle of privilege is not defeated by the mere fact that the
communication is made in intemperate terms. A privileged communication should
not be subject to microscopic examination to discover grounds of malice or falsity.
Such excessive scrutiny would defeat the protection which the law throws over
privileged communications. The ultimate test is that of bona fides."
3.ID.; ID.; ID.; PURPOSE. The privilege of communication is not intended so
much for the protection of those engaged in the public service and in the
enactment and administration of law; as for the promotion of the public welfare,
the purpose being that members of the legislature, judges of courts, jurors,
lawyers, and witnesses may speak their minds freely and exercise their
respective functions without incurring the risk of a criminal prosecution or an
action for the recovery of damages. Lawyers, most especially, should be allowed
a great latitude of pertinent comment in the furtherance of the causes they

uphold, and for the felicity of their clients they may be pardoned some infelicities
of language.
4.ATTORNEY-AT-LAW; DISBARMENT; OBJECT THEREOF. The object of
disbarment proceeding is not so much to punish the individual attorney himself,
as to safeguard the administration of justice by protecting the court and the public
from the misconduct of officers of the court, and to remove from the profession of
law persons whose disregard for their oath of office have proved them unfit to
continue discharging the trust reposed in them as members of the bar.
5.ID.; ID.; POWER TO DISBAR TO BE EXERCISED WITH GREAT CAUTION.
The power to disbar attorneys ought always to be exercised with great caution,
and only in clear cases of misconduct which seriously affects the standing and
character of the lawyer as an officer of the court and member of the bar.
6.ID.; ID.; UNFITNESS OF RESPONDENT NOT PROVED IN INSTANT CASE.
There is no evidence whatsoever tending to prove unfitness of the respondent
to continue in the practice of law and remain an officer of the court. Hence, the
administrative complaint against the respondent should be dismissed.

DECISION

CASTRO, J :
p

This is a disbarment proceeding against Vicente R. Aragona, Jr. 1 upon a verified

letter-complaint of Aurora Soriano Deles filed with this Court on November 6,
1963, charging the former with having made, under oath, false and unfounded
allegations against her in a motion filed in Court of Agrarian Relations cases
1254 and 1255-Iloilo, which allegedly caused her great mental torture and moral
suffering.
On November 13, 1963 this Court required the respondent to answer the
complaint. On December 10, 1963 the respondent filed his answer, affirming the
truth of the allegations in the questioned motion, but claiming in his defense that

in preparing it, he relied not only upon information received but also upon other
matters of public record. He also averred that the complainant had made a similar
charge against him in a counter-motion to declare him in contempt of court filed in
the same C.A.R. cases, which was however dismissed together with the
complainant's counterclaims when the main cases were dismissed; that the
complainant failed to move for the consideration of the said dismissal or to appeal
therefrom; and that during the few years that he has been a member of the bar,
he has always comported himself correctly, and has adhered steadfastly to his
conviction that the practice of law is a sacred trust in the interest of truth.
This Court, on December 14, 1963, referred the case to the Solicitor General for
investigation, report, and recommendation. Because both parties reside in Iloilo
City, the Solicitor General in turn referred the case to the City Fiscal of Iloilo for
investigation and reception of evidence. Both the petitioner and the respondent
adduced evidence in the investigation which was conducted. Thereafter, the City
Fiscal forwarded to the Solicitor General the record of the investigation, including
the recommendation of the assistant city fiscal who personally conducted the
investigation that the petition for disbarment be dismissed. The Solicitor General
thereafter filed with this Court his report, concurring in the recommendation of the
assistant city fiscal.
Aurora Soriano Deles (hereinafter referred to as the complainant) is the
administratrix of the intestate estate of the late Joaquina Ganzon (the deceased
mother of Aurora and Enrique Soriano, Sr. who are heirs of the estate
concurrently with other forced heirs) in special proceeding 128 of the Court of
First Instance of Iloilo.
On July 26, 1961, upon motion of Enrique Soriano, Sr. and over and above the
opposition of the complainant, the intestate court issued an order denying a
proposed lease of ten hectares of the estate by the complainant to one Carlos
Fuentes and sustaining the possession of Enrique as lessee of the said land. In
effect, the order likewise sustained the possession by the brothers Federico and
Carlos Aglinao of a portion of the said land being tenanted by them upon
authority of the lessee, Enrique Soriano, Sr.

In disregard of the abovementioned order, the complainant attempted to take

possession of the landholdings by placing thereon her own tenants. Predictably,
the Aglinao brothers, to protect their rights, countered by filing against the
complainant two petitions with the Court of Agrarian Relations in Iloilo
(hereinafter referred to as the agrarian court), docketed therein as C.A.R. cases
1254 and 1255 (hereinafter referred to as the C.A.R. cases). They alleged in their
respective petitions that they have been tenants of Enrique Soriano, Sr. since
1960 on a parcel of riceland located in barrio Malapoc, Balasan, Iloilo, held by the
complainant as administratrix of the intestate of the deceased Joaquina Ganzon;
and that they had started to plow their leaseholds consisting of two hectares each
at the start of the agricultural year 1962-63 when "on March 7, 1962, the
respondent [complainant herein] ordered one Bonifacio Margarejo to harrow the
plowed land without the

knowledge

and

consent"

of

the

petitioners.

Consequently, they prayed for the issuance of an interlocutory order enjoining the
complainant and her representatives from interfering with their peaceful
cultivation of the lands in question pending determination of the merits of their
petitions. However, consideration of the petitioners' prayer for the issuance of an
interlocutory order of injunction pendente lite was considerably delayed not only
by reason of several postponements granted at the behest of the complainant but
also because of the assurance made by her through counsel in open court at the
hearing of June 16, 1962, that neither she nor any of her men would disturb or
interfere with the petitioners' possession of their leaseholds until their petitions
shall have been finally resolved.
But on June 18, 1962, barely two days after the abovementioned hearing, the
complainant's men again entered the land in question and planted rice thereon.
This unauthorized entry prompted the Aglinao brothers, through their counsel, the
herein respondent Atty. Vicente Aragona, Jr. (hereinafter referred to as the
respondent), to file on June 20, 1962 an "Urgent Motion for Issuance of
Interlocutory Order." There being no objection by the complainant against the
said motion, and finding the same meritorious, the agrarian court issued on June
21, 1962 the interlocutory order prayed for, directing "the respondent, her agent,

or any person acting for and in her behalf to refrain from molesting or in any way
interfering with the work of the petitioners in their respective landholdings."
On June 24, 1962, upon the agrarian court's direction, the PC detachment
stationed in Sara, Iloilo, served copies of the order on the complainant's men,
Bonifacio Margarejo and Carlos Fuentes, and restored the Aglinao brothers to the
possession of their landholdings. On the same day, Margarejo and Fuentes
informed their landlord, the complainant, about the said order.
For several months thereafter nothing of significance happened in the C.A.R.
cases until the palay planted on the land in question became ripe and ready for
harvest.
Then on October 2, 1962 Enrique Soriano, Sr. showed to the respondent in Iloilo
City a telegram 2 which reads as follows:
"BALASAN OCT. 2, 1962
GILDA ACOLADO
ILOILO AMERICAN SCHOOL MARIA CLARA AVENUE
ILOILO CITY
TELL

DADDY

COMMUNICATE ARAGONA IMMEDIATELY

ALBERT

HARVEST TODAY. . .
MAMANG"

The sender of the telegram was Mrs. Isabel Soriano, wife of Enrique, the
addressee Gilda Acolado, their daughter.
After reading the telegram, the respondent asked Soriano whether his wife (Mrs.
Soriano) was coming to Iloilo City; when informed that she was arriving, he
decided to wait for her. Mrs. Soriano arrived from Balasan in the afternoon of that
same day, October 2, 1962. She went to see the respondent, and informed the
latter that it was she who had sent the telegram upon request of the Aglinao
brothers; that she was personally present when one Albert, a tenant of the
complainant, accompanied by many armed men, went to the land in question and

harvested the palay thereon over the protests of the Aglinao brothers; that upon
inquiring why the said Albert and his armed companions harvested the palay, she
was told that they were acting upon orders of the complainant; and that instead of
filing a complaint with the chief of police as she originally planned, she decided
instead to see the respondent without delay.

Possessed of the above information, the respondent promptly prepared and filed
with the agrarian court, on October 3, 1962, a verified "Urgent Motion to Declare
Respondent in Contempt of Court" (hereinafter referred to as motion for
contempt), praying that the complainant and "her armed goons" be declared in,
and punished for, contempt of court for violating the interlocutory order of June
21, 1962. This motion for contempt elicited, on the very same day it was filed, an
instant reply from the complainant who moved to strike it out from the records,
claiming that the allegations therein libelled her, and that it was the respondent
who should be punished for contempt for deliberately misleading the agrarian
court. Moreover, not content with this reply and countermotion for contempt, the
complainant also lodged on October 4, 1962 a criminal complaint for libel against
the respondent with the City Fiscal of Iloilo, based on the same allegedly libelous
allegations made against her by the respondent in the latter's motion for contempt
filed in the C.A.R. cases. However, after preliminarily investigating the said
complaint, the assistant city fiscal to whom it was assigned dismissed the same
on the ground that the allegations of the motion for contempt were privileged
communications. The complainant did not appeal from the said dismissal to the
city fiscal; neither did she elevate the same for review to the Department of
Justice.
Meanwhile, no action was taken by the agrarian court in the C.A.R. cases on the
motion for contempt filed by the respondent against the complainant, as well as
on the latter's countermotion, also for contempt, against the former. Instead, by
order dated October 24, 1963, the agrarian court dismissed C.A.R. cases 1254
and 1255, including the complainant's counterclaims therein, for lack of interest to
prosecute on the part of the petitioners, the Aglinao brothers. As a matter of

course, the dismissal of the main cases carried with it the dismissal of all
incidents therein, including the motion for contempt and counter-motion for
contempt. Again, the complainant did not ask for reconsideration of the order of
dismissal, nor did she appeal therefrom. She filed instead the present
administrative complaint against the respondent.
The only issue raised in the present disbarment proceeding is whether the
respondent, Atty. Vicente E. Aragona, Jr., should be disciplined or disbarred for
having prepared and filed under oath the "Urgent Motion to Declare Respondent
in Contempt of Court" in C.A.R. cases 1254 and 1255-Iloilo, which allegedly
contains false and libelous imputations injurious to the honor of the complainant.
For easy reference, the motion for contempt is hereunder reproduced in toto.
"COMES NOW the undersigned, in behalf of the petitioners in each of
the above-entitled cases, and to this Honorable Court respectfully states
that:
"1.Upon urgent and verified motion of the undersigned dated June 20,
1962, this Honorable Court issued an interlocutory order dated June 21,
1962, the dispositive part of which is as follows:
'WHEREFORE, finding the motion meritorious, an interlocutory
order is hereby issued ordering the respondent, her agent, or any
person acting for and in her behalf, to refrain from molesting or in
any way interfering with the work of the petitioners in their
respective landholdings, situated at Barrio Malapoc, Balasan,
Iloilo, with an area of 2 hectares for each of them, in these two
cases, pending the hearing of these cases on the merits.
'The Commanding Officer of the Constabulary Detachment of the
56th PC Company stationed at Sara, Iloilo, or his duly authorized
representative, is hereby ordered to implement this order and to
report to this Court his proceedings in this particular within a week
from the date of his implementation of this order.

'SO ORDERED.'
'Iloilo City, June 21, 1962.
'(SGD.) JUAN C. TERUEL
Commissioner'
"2.Pursuant to the above-quoted order, the Commanding Officer of the
56th PC Company stationed at Sara, Iloilo, ordered the respondent and
her men not to enter the landholdings in question and to refrain from
molesting or in any way interfering with the work of petitioners in their
respective landholdings; the report of said Commanding Officer is now
on file with the records of the above-entitled cases;
"3.On this date, the undersigned was just surprised when he received a
telegram from the petitioners, through Mrs. Isabel Soriano, copy of which
is hereto attached as Annex 'A' and made part hereof, informing the
undersigned that respondent, thru a certain Albert, with the aid of armed
goons, harvested the palay of the petitioners yesterday despite the
vehement opposition of the petitioners not to enter their landholdings;
"4.The said acts of respondents and her men in harvesting the palay of
the petitioners, knowing fully well the existence and implementation of
the interlocutory order of this Court dated June 21, 1962, is a gross and
open defiance and disobedience of said order and a challenge to the
legal processes and authority of this Court in the peaceful administration
of justice;
"5.This rebellious and seditious conduct of the respondent and her men
against the authority of this Court constitutes wanton resistance and
contumacious contempt of court;
"6.Unless the respondent and her armed goons are declared in contempt
of Court and duly punished, the lawful orders, processes and authority of
this Court would be a mockery and rendered useless by the stubborn
resistance and defiance of the respondent.

"IN VIEW OF THE FOREGOING, it is respectfully prayed of this

Honorable Court that respondent and her armed goons be declared and
punished for contempt of Court until such time that she turns over the
produce of the landholdings in question which she harvested illegally
and until such time that she fully complies with the interlocutory order of
this Court.
"Petitioners pray for such other relief and remedies just and equitable
under the premises.
"Iloilo City, October 3, 1962.
"E.I. Soriano Jr. and V.E. Aragona
Counsel for the Petitioners
Lopez Bros. Bldg., Iznart Street
Iloilo City
By:
(Sgd.) VICENTE E. ARAGONA JR."

The complainant's testimony is to the effect that (1) on October 2, 1962 she was
not in Balasan but in Iloilo City where she testified at the trial of C.A.R. cases
1254 and 1255, after which she left for her home which is situated also in Iloilo
City; (2) the distance between Balasan and Iloilo City is 135 kilometers, and to
reach Balasan from Iloilo City one has to travel four hours by car or six hours by
bus; (3) although she knows that the person Albert, mentioned in the motion, is
Alberto Boneta, a helper of Carlos Fuentes, one of the tenants she had placed on
the lands involved in the C.A.R. cases, she never met or saw Boneta or Fuentes
from the time she was informed of the interlocutory order dated June 21, 1962 in
the aforesaid cases, until October 2, 1962 when the said Alberto Boneta and
several armed men allegedly harvested the crops on the lands in question; (4)
she did not order Boneta to harvest the said crops; and (5) she never visited the
aforesaid lands in 1962. Her uncontradicted testimony lends credence to her

claim that she did not order Alberto Boneta to harvest, with the aid of armed men,
the crops on the Aglinao brothers' landholdings.
Nonetheless, this Court is loath to uphold the view that the preparation and the
filing of the questioned motion for contempt, furnish sufficient basis for
disciplinary action against the respondent.
In People vs. Aquino 3 this Court laid down the decisional authority that.
"[S]tatements made in the course of judicial proceedings are absolutely
privileged that is, privileged regardless of defamatory tenor and of the
presence of malice if the same are relevant, pertinent or material to
the cause in hand or subject of the inquiry. And that, in view of this, the
person who makes them such as a judge, lawyer, or witness does
not thereby incur the risk of being found liable thereon in a criminal
prosecution or an action for the recovery of damages." (Emphasis
supplied)

Since there is no doubt that the allegations made by the respondent in the
questioned motion for contempt are statements made in the course of a
judicial proceeding i.e., in C.A.R. cases 1254 and 1255 besides being
relevant, pertinent or material to the subject-matter of the said cases, they are
absolutely privileged, thereby precluding any liability on the part of the
respondent.
To be sure, the charges levelled by the respondent against the complainant in the
questioned pleading lack sufficient factual basis. But even this circumstance will
not strengthen the complainant's position. "The privilege is not affected by factual
or legal inaccuracies in the utterances made in the course of judicial
proceedings." 4 In fact, "Even when the statements are found to be false, if there
is probable cause for belief in their truthfulness and the charge is made in good
faith, the mantle of privilege may still cover the mistake of the individual . . . The
privilege is not defeated by the mere fact that the communication is made in
intemperate terms. . . A privileged communication should not be subjected to
microscopic examination to discover grounds of malice or falsity. Such excessive

scrutiny would defeat the protection which the law throws over privileged
communications. The ultimate test is that of bona fides." 5
Indeed, the actuations of the respondent were motivated by the legitimate desire
to serve the interests of his clients. For, contrary to the complainant's claim, the
respondent did not rely merely on Mrs. Soriano's telegram (exh. 5) when he
prepared the motion for contempt. According to his unrebutted testimony, when
Mr. Soriano brought to him the said telegram on October 2, 1962, he asked the
former whether his wife, the sender of the telegram, was coming to Iloilo City,
and, when informed that she was arriving, he waited for her. True enough, Mrs.
Soriano saw the respondent in the afternoon of that same day and informed him
that she was personally present when one Albert, a tenant of the complainant,
accompanied by several armed men, went to the landholdings of the Aglinao
brothers and, against the objections of the latter, harvested the palay crop
thereon, and that upon her inquiry, she was informed that they were acting upon
orders of the complainant.

Considering that the foregoing information which impelled the respondent to file
the questioned motion for contempt, was obtained by him first-hand from
someone who claimed to have actually witnessed the incident in question,
coupled with the complainant's own admission that the Albert referred to by Mrs.
Soriano was indeed a helper of Carlos Fuentes, one of the tenants whom she
had illegally placed once on the landholdings of the Aglinao brothers, it was not
unseemly for the respondent to assume that Albert did act at the behest of the
complainant. After all, the complainant had, in the past, committed the same
forcible act of entering the said landholdings on June 18, 1963, only two days
after she had assured the agrarian court that she would not disturb or interfere
with the Aglinao brothers' possession, pending final resolution of the petitions
filed by them against her. In truth, it is precisely such forcible entry into the said
lands that precipitated the issuance of the very interlocutory order dated June 21,
1962 which the respondent accused her of disobeying in his motion for contempt.
Unquestionably, the aforenarrated circumstances provided the respondent a

probable cause for belief in the truthfulness of the allegations which he couched
in rather intemperate language in his motion for contempt. He had merely acted
in righteous indignation over the wrong supposedly done to his aggrieved clients
believing as he did in the truth of his charges without deliberate intention
whatsoever to malign and villify the complainant.
The doctrine of privileged communication is not an idle and empty principle. It
has been distilled from wisdom and experience. "The privilege is not intended so
much for the protection of those engaged in the public service and in the
enactment and administration of law, as for the promotion of the public welfare,
the purpose being that members of the legislature, judges of courts,
jurors, lawyers, and witnesses may speak their minds freely and exercise their
respective functions without incurring the risk of a criminal prosecution or an
action for the recovery of damages." 6 Lawyers, most especially, should be
allowed a great latitude of pertinent comment in the furtherance of the causes
they uphold, and for the felicity of their clients they may be pardoned some
infelicities of language. 7 The object of a disbarment proceeding is not so much to
punish the individual attorney himself, as to safeguard the administration of
justice by protecting the court and the public from the misconduct of officers of
the court, and to remove from the profession of law persons whose disregard for
their oath of office have proved them unfit to continue discharging the trust
reposed in them as members of the bar. 8 Thus, the power to disbar attorneys ought
always to be exercised with great caution, and only in clear cases of misconduct which
seriously affects the standing and character of the lawyer as an officer of the court and
member of the bar. 9

In this case, there is no evidence whatsoever tending to prove unfitness of the

respondent to continue in the practice of law and remain an officer of the court.
ACCORDINGLY, the administrative complaint against the respondent is hereby
dismissed.
Concepcion, C .J ., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez,
Fernando, Capistrano, Teehankee and Barredo, JJ ., concur.

|||

(Deles v. Aragona, Jr., Adm. Case No. 598, March 28, 1969)

OLEGARIA BLANZA and

MARIA

PASION, complainants, vs. ATTY.

AGUSTIN ARCANGEL, respondent.
SYLLABUS
1. ATTORNEYS-AT-LAW; SERVICE OFFERED VOLUNTARILY; EFFECT.
Where counsel voluntarily offered his professional services, he was not legally
entitled to recover fees. But having established the attorney-client relationship
voluntarily, he was bound to attend to complainant's claim with all diligence.
2. ID.; FAILURE TO RETURN PAPERS WHEN DEMANDED; FAILURE OF
CLAIMANTS TO PAY PHOTOSTATING COSTS; EFFECT. Where claimants
agreed to shoulder the photostating expenses of the documents they handed to
counsel and they failed to give him the necessary expenses for the purpose, they
cannot blame counsel for the delay of the turning over of the said documents to
them for the same cannot be released by the photostat service without payment
of the corresponding costs.
3. ID.; ROLE OF ATTORNEY-AT-LAW IN THE COMMUNITY. A lawyer has a
more dynamic and positive role in the community than merely complying with the
minimal technicalities of the statute. As a man of law, he is necessarily a leader
of the community, looked up to as a model citizen. His conduct must, perforce, be
par excellence, especially so when, as in this case, he vollunteers his
professional services. Respondent has not lived up to that ideal standard. It was
unnecessary to have complainants wait, and hope, for six long years on their

pension claims. Upon their refusal to cooperate, respondent should have

forthwith terminated their professional relationship instead of keeping them
hanging indefinitely.

DECISION

BENGZON, J.P., J :
p

Complainants Olegaria Blanza and Maria Pasion ask this Court to take
disciplinary action against respondent Atty. Agustin Arcangel for professional
non-feasance.

They

complain

that

way

back

in

April,

1955,

respondent volunteered to help them in their respective pension claims in

connection with the deaths of their husbands, both P.C. soldiers, and for this
purpose, they handed over to him the pertinent documents and also affixed their
signatures on blank papers. But subsequently, they noticed that since then,
respondent had lost interest in the progress of their claims and when they finally
asked for the return of their papers six years later, respondent refused to
surrender them.
Respondent answered these accusations before Fiscal Raa to whom this case
was

referred

by

the

Solicitor

General

for

investigation,

report

and

recommendation. He admitted having received the documents from complainants

but explained that it was for photostating purposes only. His failure to immediately
return them, he said, was due to complainants' refusal to hand him the money to
pay for the photostating costs which prevented him from withdrawing said
documents from the photostat service. Anyway, he had already advanced the
expenses himself and turned over, on December 13, 1961, the documents, their
respective photostats and the photostat service receipt to the fiscal.
Finding respondent's explanation satisfactory and considering that he charged
complainants nothing for his services, Fiscal Raa recommended the former's
exoneration, on at most, that he be reprimanded only. The Solicitor General,

however, feels that respondent deserves at least a severe reprimand considering

(1) his failure to attend to the complainants' pension claims for six years: (2) his
failure to immediately return the documents despite repeated demands upon him,
and (3) his failure to return to complainant Pasion, allegedly, all of her
documents.
At the hearing of the case before this Court on October 21, 1963, only
respondent, thru counsel, appeared. In lieu of oral arguments, therefore,
respondent submitted his memorandum, annexing therewith an affidavit executed
by Olegaria Blanza asking for the dismissal of the administrative case. 1
Respondent first submits that he was not obliged to follow up complainants'
pension claims since there was no agreement for his compensation as their
counsel. Respondent however overlooks the fact that he volunteered his
professional services and thus, was not legally entitled to recover fees. 2 But
having established the attorney-client relationship voluntarily, he was bound to
attend to complainants' claims with all due diligence.
Nevertheless, We find the evidence adduced insufficient to warrant the taking of
disciplinary action against respondent attorney. There is no clear preponderance
of evidence substantiating the accusations against him. 3
Respondent's explanation for the delay in filing the claims and in returning the
documents has not been controverted by complainants. On the contrary, they
admitted 4that respondent asked them to shoulder the photostating expenses but
they did not give him any money therefor. Moreover, the documents and their
photostats were actually returned by respondent during the fiscal's investigation
with him paying for the photostating costs himself. And the condition of the
photostats themselves they appear to have been in existence for quite some
times 5 supports respondent's allegation that they remained in possession of
the photostat service for the failure of the owners (respondent and/or
complainants) to withdraw the same upon payment of the corresponding costs.
Hence, complainants themselves are partly to blame for the delay in filing their
respective claims.

As for the alleged failure of respondent to return all her documents to

complainant Pasion, the former denies this. Fiscal Raa made no findings on the
matter. The affidavit of Mrs. Blanza pardoning respondent cannot prejudice
complainant Pasion because res inter alios acta alteri nocere non debet. Still,
there is equiponderance of evidence which must necessarily redound to
respondent's

benefit.

Complainant

Pasion

had

another

opportunity

to

substantiate her charges in the hearing set for October 21, 1963 but she let it go.
Neither she nor her counsel of record appeared.
But while We are constrained to dismiss the charges against respondent, for
being legally insufficient, yet, We cannot but counsel against his actuations as a
member of the bar. A lawyer has a more dynamic and positive role in the
community than merely complying with the minimal technicalities of the statute.
As a man of law, he is necessarily a leader of the community, looked up to as a
model citizen. His conduct must, perforce, be par excellence, especially so when,
as in this case, he volunteershis professional services. Respondent here has not
lived up to that ideal standard. It was unnecessary to have complainants wait,
and hope, for six long years on their pension claims. Upon their refusal to cooperate, respondent should have forthwith terminated their professional
relationship instead of keeping them hanging indefinitely. And altho We voted that
he not be reprimanded, in a legal sense, let this be a reminder to
Atty. Arcangel of what the high standards of his chosen profession require of him.
Accordingly, the case against respondent is dismissed. So ordered.
Concepcion, C.J., Reyes, J.B.L. Dizon, Makalintal, Zaldivar, Sanchez, Castro,
Angeles and Fernando, JJ., concur.
|||

(Blanza v. Arcangel, A.C. No. 492, September 05, 1967)

MELANIO L. ZORETA, complainant, vs. ATTY. HEHERSON

ALNOR G. SIMPLICIANO, respondent.

DECISION

CHICO-NAZARIO, J :
p

This is a complaint for disbarment filed against Atty. Heherson Alnor

G. Simpliciano for allegedly notarizing several documents during the year 2002
after his commission as notary public had expired.
Complainant Melanio L. Zoreta alleged that on 02 August 2001, he filed before
Branch 4 of the Regional Trial Court of Antipolo City, a complaint for Breach of
Contract and Damages against Security Pacific Assurance Corporation (SPAC)
dated 22 June 2001 due to the latter's failure to honor SPAC's Commercial
Vehicle

Policy

No.

94286,

where

respondent

Atty.

Heherson

Alnor

G. Simpliciano was the latter's counsel. In said cases, respondent who was not a
duly commissioned Notary Public in 2002 per Certifications 1 issued by the Clerk
of Court of Quezon City Mercedes S. Gatmaytan, performed acts of notarization,
as evidenced by the following documents, viz:
1. Verification 2 executed by Aurora C. Galvez, President of defendant
SPAC, subscribed and sworn to before Atty. Heherson Alnor
G. Simpliciano on February 18, 2002 as alleged notary public, in
Quezon City and attached to defendants' Very Urgent Motion (1)
To Lift the Order of Default; and (2) To defer Plaintiff's
Presentation of Evidence Ex-Parte dated February 18, 2002;
2. Affidavits of Merit 3 signed by Aurora Galvez attached to the pleading
mentioned in par. 1 hereof, likewise notarized by Atty. Heherson
Alnor G. Simpliciano as alleged "Notary Public" in Quezon City,
on February 18, 2002;

3. The Affidavit of Service 4 signed by a certain Renee L. Ramos, a

Legal Assistant in Simpliciano and Capela Law Office, and
subscribed

and

sworn

to

before

Atty.

Heherson

Alnor

G. Simpliciano on February 19, 2002 as alleged "Notary Public" in

Quezon City. Said Affidavit of Service was attached to the
pleading mentioned in Par. 1 hereof;

TaDAHE

4. The Affidavit of Service 5 of one Nestor Abayon, another Legal

Assistant of Simpliciano and Capela Law Office, subscribed and
sworn to before Atty. Heherson Alnor G. Simpliciano on 01 April
2002 at Quezon City, as "Notary Public." This Affidavit of Service
was attached to defendants' Motion (1) For Reconsideration of the
Order dated 05 March 2002; and (2) To allow defendants to
Present Defensive Evidence dated 27 March 2002.
5. The Verification and Certification Against Forum Shopping 6 signed
this time by a certain Celso N. Sarto, as affiant, "notarized" on 16
August 2002 by Atty. Heherson Alnor G. Simpliciano. This
Verification and Certification Against Forum Shopping was
attached to defendant's Motion For Extension of Time To File
Petition Under Rule 65 before the Court of Appeals;
6. The Affidavit of Service 7 signed by a certain Joseph B. Aganan,
another Legal Assistant in Simpliciano and Capela Law Office
subscribed

and

sworn

to

before

Atty.

Heherson

Alnor

G. Simpliciano as "Notary Public" on 16 August 2002. This

Affidavit of Service signed by Aganan was also attached to that
Motion For Extension of Time To File Petition under Rule 65
before the Court of Appeals;
7. Verification and Certification Against Forum Shopping 8 executed by
one Celso N. Sarto, alleged Executive Vice President and Claims
Manager of defendant SPAC and "notarized" by Atty. Heherson
Alnor G. Simpliciano on 19 August 2002, attached to the Petition

for Certiorari and Prohibition, etc., filed before the Court of

Appeals; and
8. Affidavit of Service 9 signed by a certain Joseph B. Aganan, Legal
Assistant of Simpliciano and Capela Law Office, subscribed and
sworn to before Atty. Heherson Alnor G. Simpliciano on 19 August
2002, as alleged "Notary Public" for Quezon City with notarized
commission to expire by December 31, 2002.

On 23 April 2003, the Integrated Bar of the Philippines (IBP) of Pasig required
respondent Atty. Simpliciano to submit his answer within fifteen (15) days from
receipt of the Order. 10
On 26 May 2003, counsel of respondent filed an ex-parte motion 11 for extension
of time to file answer.
On 30 June 2003, petitioner filed a motion 12 to resolve the complaint after the
extension requested by respondent ended on 30 May 2003, and almost a month
had lapsed from 30 May 2003, with no comment or pleading filed by respondent.
On 17 July 2003, Commissioner Lydia A. Navarro issued an order,

13

giving

respondent a last chance to file his answer, otherwise the case shall be deemed
submitted for resolution. Respondent failed to do so.
Commissioner

Lydia

A.

Navarro

submitted

her

report

recommendation 14 dated 12 February 2004, pertinent portions of which read:

A careful examination and evaluation of the evidence submitted by the
petitioner showed that respondent notarized up to Document No. 590,
Page 118, Book No. II, Series of 2002 and his commission expires
December 31, 2002 which referred to the Affidavit of Service signed and
executed by Joseph B. Aganan Legal Assistant ofSimpliciano and
Capela Law Office subscribed and sworn to before Notary Public
Heherson Alnor G. Simpliciano whose commission expires December
31, 2002.

TCAScE

and

All the other documents aforementioned were entered in Book II of

respondent's alleged notarial book which reflected that his commission
expires on December 31, 2002 as notary public.
However, the Clerk of Court of Quezon City in her certification dated
October 4, 2002 stated that as per records on file with their office
respondent was not duly commissioned notary public for and in Quezon
City for the year 2002.
Another certification issued by the Clerk of Court of RTC Quezon City
dated April 15, 2003 showed that as per records on file with their office
respondent was commissioned notary public for and in Quezon City from
January 14, 2000 to December 31, 2001 and for the year 2002 and 2003
he did not apply for notarial commission for Quezon City.
It is evident from the foregoing that when respondent notarized the
aforementioned documents, he was not commissioned as notary public,
which was in violation of the Notarial Law; for having notarized the 590
documents after the expiration of his commission as notary public
without having renewed said commission amounting to gross misconduct
as a member of the legal profession.
Wherefore, in view of the foregoing the Undersigned respectfully
recommends the revocation of respondent's commission as notary public
permanently if he is commissioned as such at present and his
suspension from the practice of law for a period of three (3) months from
receipt hereof furnishing the IBP Chapter where he is a registered
member a copy hereof for implementation should this recommendation
be approved by the Honorable members of the Board of Governors.

15

Per Resolution No. XVI-2004-236 dated 16 April 2004, the Board of Governors
modified the report and recommendation of Commissioner Navarro of
suspension of three (3) months to a suspension of six (6) months. 16
We concur in the finding of the Investigating Commissioner that respondent
Atty. Simpliciano did not have a commission as notary public in 2002 when he

notarized the assailed documents as evidenced by the two (2) certifications

issued by the Clerk of Court of the Regional Trial Court of Quezon City dated 04
October 2002. 17 Records also show, and as confirmed by IBP Commissioner
Navarro, that as of 02 August 2002, respondent had already notarized a total of
590 documents. 18 The evidence presented by complainant conclusively
establishes the misconduct imputed to respondent.
The eight (8) notarized documents for the year 2002 submitted by complainant,
consisting of affidavits of merit, certifications and verifications against non-forum
shopping, and affidavits of service, were used and presented in the Regional Trial
Court of Antipolo City, Branch 74, in Civil Case No. 01-6240, and in respondent's
petition for certiorari filed in the Court of Appeals.
Against the evidence presented by complainant, respondent did not even attempt
to present any evidence. His counsel filed an ex-parte motion for extension to file
answer, which was granted, but no answer was forthcoming. Still, Hearing
Commissioner Lydia A. Navarro gave respondent a last chance to file his answer;
which was again unheeded. Thus, respondent was unable to rebut complainant's
evidence that he was not so commissioned for the year in question. His lack of
interest and indifference in presenting his defense to the charge and the evidence
against him can only mean he has no strong and valid defense to offer.
Conclusively, respondent Atty. Simpliciano is not a duly commissioned Notary
Public for and in Quezon City for the year 2002.
At the threshold, it is worth stressing that the practice of law is not a right but a
privilege bestowed by the State on those who show that they possess, and
continue to possess, the qualifications required by law for the conferment of such
privilege. 19 Membership in the bar is a privilege burdened with conditions. A
lawyer has the privilege and right to practice law only during good behavior and
can only be deprived of it for misconduct ascertained and declared by judgment
of the court after opportunity to be heard has been afforded him. Without
invading any constitutional privilege or right, an attorney's right to practice law
may be resolved by a proceeding to suspend him, based on conduct rendering
him unfit to hold a license or to exercise the duties and responsibilities of an

attorney. It must be understood that the purpose of suspending or disbarring him

as an attorney is to remove from the profession a person whose misconduct has
proved him unfit to be entrusted with the duties and responsibilities belonging to
an office of attorney, and thus to protect the public and those charged with the
administration of justice, rather than to punish an attorney.

20

Elaborating on this,

we said in Maligsa v. Cabanting 21 that "[t]he bar should maintain a high standard
of legal proficiency as well as of honesty and fair dealing. A lawyer brings honor
to the legal profession by faithfully performing his duties to society, to the bar, to
the courts and to his clients. To this end a member of the legal fraternity should
refrain from doing any act which might lessen in any degree the confidence and
trust reposed by the public in the fidelity, honesty and integrity of the legal
profession." 22 Towards this end, an attorney may be disbarred, or suspended for
any violation of his oath or of his duties as an attorney and counselor, which
include statutory grounds enumerated in Section 27, Rule 138 of the Rules of
Court, all of these being broad enough to cover practically any misconduct of a
lawyer in his professional or private capacity. 23

Apropos to the case at bar, it has been emphatically stressed that notarization is
not an empty, meaningless, routinary act. It is invested with substantive public
interest, such that only those who are qualified or authorized may act as notaries
public. The protection of that interest necessarily requires that those not qualified
or authorized to act must be prevented from imposing upon the public, the courts,
and the administrative offices in general. It must be underscored that the
notarization by a notary public converts a private document into a public
document making that document admissible in evidence without further proof of
authenticity. A notarial document is by law entitled to full faith and credit upon its
face. For this reason, notaries public must observe with utmost care the basic
requirements in the performance of their duties. 24
The requirements for the issuance of a commission as notary public must not be
treated as a mere casual formality. The Court has characterized a lawyer's act of
notarizing

documents

without

the

requisite

commission

therefore

as

"reprehensible, constituting as it does not only malpractice but also . . . the crime
of falsification of public documents."

25

For such reprehensible conduct, the Court

has sanctioned erring lawyers by suspension from the practice of law, revocation
of the notarial commission and disqualification from acting as such, and even
disbarment. 26
In the case of Nunga v. Viray, 27 the Court had occasion to state that where the
notarization of a document is done by a member of the Philippine Bar at a time
when he has no authorization or commission to do so, the offender may be
subjected to disciplinary action. For one, performing a notarial without such
commission is a violation of the lawyer's oath to obey the laws, more specifically,
the Notarial Law. Then, too, by making it appear that he is duly commissioned
when he is not, he is, for all legal intents and purposes, indulging in deliberate
falsehood, which the lawyer's oath similarly proscribes. These violations fall
squarely within the prohibition of Rule 1.01 of Canon 1 of the Code of
Professional Responsibility, which provides: "A lawyer shall not engage in
unlawful, dishonest, immoral or deceitful conduct."

DaCEIc

By such misconduct as a notary public, the lawyer likewise violates Canon 7 of

the same Code, which directs every lawyer to uphold at all times the integrity and
dignity of the legal profession.
On different occasions, this Court had disbarred or suspended lawyers for
notarizing documents with an expired commission:
1. In Flores v. Lozada, 28 the court disbarred a lawyer who notarized six
documents such as the extrajudicial partition of an estate, deed of
sale with right of repurchase, and four (4) deeds of absolute sale
all involving unregistered lands, after his commission as Notary
Public expired;
2. In Joson v. Baltazar, 29 the court suspended the lawyer for three (3)
months since only one (1) instance of unauthorized notarization of
a deed of sale was involved.

3. In Nunga v. Viray, 30 the court suspended the lawyer for three (3)
years when he notarized an absolute deed of sale of the buyer
minor, who was his son and, at the same time, he was a
stockholder and legal counsel of the vendor bank, and when he
entered in his notarial registry an annotation of the cancellation of
the loan in favor of a certain bank, at a time when he was not
commissioned as a Notary Public. What aggravated respondent's
unlawful notarization was the fact that the transaction involved
was in favor of his son, who was then only eighteen years old and,
therefore, a minor.
4. In Buensuceso v. Barrera, 31 the lawyer was suspended for one (1)
year when he notarized five (5) documents such as a complaint
for ejectment, affidavit, supplemental affidavit, a deed of sale and
a contract to sell, after his commission as Notary Public expired.

Needless to state, respondent cannot escape from disciplinary action in his

capacity as a notary public and as a member of the Philippine Bar. However, the
penalty recommended by the Board of Governors of the IBP must be increased.
Respondent must be barred from being commissioned as a notary public
permanently and suspended from the practice of law for two (2) years.
WHEREFORE, this Court hereby adopts the findings of Investigating
Commissioner Lydia A. Navarro, which the Board of Governors of the Integrated
Bar of the Philippines adopted and approved, but hereby MODIFIES the penalty
recommended by the Board of Governors. As modified, respondent ATTY.
HEHERSON ALNOR G.SIMPLICIANO is hereby BARRED PERMANENTLY from
being commissioned as Notary Public. He is furthermore SUSPENDED from the
practice of law for two (2) years, effective upon receipt of a copy of this Decision.
Let copies of this Decision be furnished all the courts of the land through the
Court Administrator as well as the Integrated Bar of the Philippines, the Office of
the Bar Confidant, and recorded in the personal files of respondent himself.
SO ORDERED.

EDaHAT

|||

(Zoreta v. Simpliciano, A.C. No. 6492, November 18, 2004)

A-1 FINANCIAL SERVICES, INC., complainant, vs.

ATTY.

LAARNI N. VALERIO, respondent.

DECISION

PERALTA, J :
p

Before us is a Complaint 1 dated January 18, 2006 for disciplinary action against
respondent

Atty.

Laarni

N. Valerio filed

by A-1 Financial Services, Inc.,

represented by Diego S. Reunilla, its account officer, with the Integrated Bar of
the Philippines-Commission on Bar Discipline (IBP-CBD), docketed as CBD Case
No. 06-1642, now A.C. No. 8390, for violation of Batas Pambansa Blg. 22 (B.P.
22) and non-payment of debt.
On November 13, 2001, A-1 Financial Services, Inc., a financing corporation,
granted the loan application of Atty. Valerio amounting to P50,000.00. To secure
the payment of the loan obligation, Atty. Valerio issued a postdated check, to
wit: Check

No.

0000012725;

dated

April

1,

2002,

in

the

amount:

P50,000.00. 2 However, upon presentation at the bank for payment on its maturity
date, the check was dishonored due to insufficient funds. As of the filing of the
instant case, despite repeated demands to pay her obligation, Atty. Valerio failed
to pay the whole amount of her obligation.
Thus, on November 10, 2003, complainant filed a B.P. 22 case against
Atty. Valerio, docketed as Criminal Case No. 124779. Atty. Valerio's arraignment
was scheduled for August 31, 2004; however, she failed to appear despite due
notice. 3 Subsequently, a Warrant of Arrest 4 was issued but Atty. Valerio posted
no bail. On November 22, 2004, complainant sent a letter 5 to Atty. Valerio calling
her attention to the issuance of the Warrant of Arrest against her and requested

her to submit to the jurisdiction of the court by posting bail. The said letter was
received

by

Atty. Valerio,

as

evidenced

by

the

postal

registry

cards. 6 Despite court orders and notices, Atty.Valerio refused to abide.

return

HESAIT

On January 18, 2006, complainant filed an administrative complaint against

Atty. Valerio before the Integrated Bar of the Philippines (IBP). On January 26,
2006, the IBP Commission on Bar Discipline (IBP-CBD) required Atty. Valerio to
file an answer, but she did not file any responsive pleading at all. However, in a
letter 7 dated

March

16,

2006,

respondent's

mother,

Gorgonia

N. Valerio (Mrs. Valerio), explained that her daughter had been diagnosed
with schizophrenia; thus, could not properly respond to the complaint against her.
Furthermore,

Mrs. Valerio undertook

to

personally

settle

her

daughter's

obligation.
On September 13, 2007, the IBP-CBD directed Atty. Valerio to appear before the
mandatory conference. Atty. Valerio, again, failed to attend the conference.
Subsequently, in an Order dated November 15, 2007, the IBP ordered the parties
to submit their position papers. No position paper was submitted by Atty. Valerio.
Thus, in its Report and Recommendation dated September 16, 2008, the IBPCBD recommended that Atty. Valerio be suspended from the practice of law for a
period of two (2) years, having found her guilty of gross misconduct.
The IBP-CBD gave no credence to the medical certificate submitted by
Atty. Valerio's mother, in view of the latter's failure to appear before the IBP-CBD
hearings to affirm the truthfulness thereof or present the physician who issued the
same. The IBP-CBD, further, pointed out that Atty. Valerio's failure to obey court
processes, more particularly her failure to appear at her arraignment despite due
notice and to surrender to the Court despite the issuance of a warrant of arrest,
showed her lack of respect for authority and, thus, rendered her morally unfit to
be a member of the bar. 8
On December 11, 2008, the IBP Board of Governors adopted and approved with
modification the report and recommendation of the IBP-CBD. Atty. Valerio was
instead ordered suspended from the practice of law for a period of one (1) year.

Nevertheless, to provide Atty. Valerio further opportunity to explain her side, the
Court, in a Resolution dated December 15, 2010, directed Atty. Valerio and/or her
mother, to submit a duly notarized medical certificate issued by a duly licensed
physician and/or certified copies of medical records to support the claim
ofschizophrenia on the part of Atty. Valerio within a non-extendible period of ten
(10) days from receipt hereof.

DHaECI

However, despite the lapse of considerable time after the receipt of notice 9 to
comply with the said Resolution, no medical certificate or medical records were
submitted to this Court by either respondent and/or her mother. Thus, this
resolution.
We sustain the findings and recommendations of the IBP-CBD.
In Barrientos v. Libiran-Meteoro, 10 we held that:
. . . [the] deliberate failure to pay just debts and the issuance of worthless
checks constitute gross misconduct, for which a lawyer may be
sanctioned with suspension from the practice of law. Lawyers are
instruments for the administration of justice and vanguards of our legal
system. They are expected to maintain not only legal proficiency but also
a high standard of morality, honesty, integrity and fair dealing so that the
people's faith and confidence in the judicial system is ensured. They
must at all times faithfully perform their duties to society, to the bar, the
courts

and

to

their

clients,

which

include

prompt

payment

of financial obligations. They must conduct themselves in a manner that

reflects the values and norms of the legal profession as embodied in the
Code of Professional Responsibility. Canon 1 and Rule 1.01 explicitly
states that:
Canon 1 A lawyer shall uphold the constitution, obey the laws of the
land and promote respect for law and for legal processes.
Rule 1.01 A lawyer shall not engage in unlawful, dishonest, immoral
or deceitful conduct.

In the instant case, there is no denial of the existence of the loan obligation
despite respondent's failure to cooperate before any proceedings in relation to the
complaint. Prior to the filing of the complaint against her, Atty. Valerio's act of
making partial payments of the loan and interest suffices as proof that indeed
there is an obligation to pay on her part. Respondent's mother, Mrs. Valerio,
likewise, acknowledged her daughter's obligation.
The Court, likewise, finds unmeritorious Mrs. Valerio's justification that her
daughter,

Atty. Valerio,

is

suffering

from

health

condition, i.e.,

schizophrenia, which has prevented her from properly answering the complaint
against her. Indeed, we cannot take the "medical certificate" on its face,
considering Mrs. Valerio's failure to prove the contents of the certificate or present
the physician who issued it.

CIaDTE

Atty. Valerio's conduct in the course of the IBP and court proceedings is also a
matter of serious concern. She failed to answer the complaint against her.
Despite due notice, she failed to attend the disciplinary hearings set by the IBP.
She also ignored the proceedings before the court as she likewise failed to both
answer the complaint against her and appear during her arraignment, despite
orders and notices from the court. Clearly, this conduct runs counter to the
precepts of the Code of Professional Responsibility and violates the lawyer's oath
which imposes upon every member of the Bar the duty to delay no man for
money or malice. Atty. Valerio has failed to live up to the values and norms of the
legal profession as embodied in the Code of Professional Responsibility.
In Ngayan v. Tugade,11 we ruled that "[a lawyer's] failure to answer the complaint
against him and his failure to appear at the investigation are evidence of his
flouting resistance to lawful orders of the court and illustrate his despiciency for
his oath of office in violation of Section 3, Rule 138 of the Rules of Court.
We come to the penalty imposable in this case.
In Lao v. Medel, 12 we held that the deliberate failure to pay just debts and the
issuance of worthless checks constitute gross misconduct for which a lawyer may
be sanctioned with one-year suspension from the practice of law. The same

sanction was imposed on the respondent-lawyer in Rangwani v. Dino, 13 having

found guilty of gross misconduct for issuing bad checks in payment of a piece of
property, the title to which was only entrusted to him by the complainant.
However, in this case, we deem it reasonable to affirm the sanction imposed by
the IBP-CBD, i.e., Atty. Valerio was ordered suspended from the practice of law
for two (2) years, 14 because, aside from issuing worthless checks and failing to
pay her debts, she has also shown wanton disregard of the IBP's and Court
Orders in the course of the proceedings.
WHEREFORE, Resolution No. XVIII-2008-647 dated December 11, 2008 of the
IBP, which found respondent Atty. Laarni N. Valerio guilty of gross misconduct
and

violation

of

the

Code

of

Professional

Responsibility,

is AFFIRMED with MODIFICATION. She is hereby SUSPENDED for two (2)

years from the practice of law, effective upon the receipt of this Decision. She is
warned that a repetition of the same or a similar act will be dealt with more
severely.

SEHTAC

Let a copy of this Decision be furnished to the Office of the Bar Confidant, to be
appended to the personal record of Atty. Valerio as a member of the Bar; the
Integrated Bar of the Philippines; and the Office of the Court Administrator for
circulation to all courts in the country for their information and guidance.
This Decision shall be immediately executory.
SO ORDERED.
|||

(A-1 Financial Services, Inc. v. Valerio, A.C. No. 8390, July 02, 2010)

RE: 2003 BAR EXAMINATIONS

RESOLUTION

PER CURIAM :
p

On 22 September 2003, the day following the bar examination in Mercantile Law,
Justice Jose C. Vitug, Chairman of the 2003 Bar Examinations Committee, was
apprised of a rumored leakage in the examination on the subject. After making
his own inquiries, Justice Vitug reported the matter to Chief Justice Hilario G.
Davide, Jr., and to the other members of the Court, recommending that
the bar examination on the subject be nullified and that an investigation be
conducted

forthwith.

On

23

September2003,

the

Court

adopted

the

recommendation of Justice Vitug, and resolved to nullify the examination in

Mercantile Law and to hold another examination on 04 October 2003 at eight
o'clock in the evening (being the earliest available time and date) at the De La
Salle University, Taft Avenue, Manila. The resolution was issued without prejudice
to any action that the Court would further take on the matter.
Following the issuance of the resolution, the Court received numerous petitions
and motions from the Philippine Association of Law Schools and various other
groups

and

persons,

expressing

agreement

to

the

nullification

of

the bar examinations in Mercantile Law but voicing strong reservations against
the holding of anotherexamination on the subject. Several reasons were
advanced by petitioners or movants, among these reasons being the physical,
emotional and financial difficulties that would be encountered by the examinees, if
another examination on the subject were to be held anew. Alternative proposals
submitted to the Court included the spreading out of the weight of Mercantile Law
among the remaining seven bar subjects, i.e., to determine and gauge the results
of the examinations on the basis only of the performance of the examinees in the
seven bar subjects. In a resolution, dated 29 September 2003, the Court, finding
merit in the submissions, resolved to cancel the scheduled examination in
Mercantile Law on 04 October 2003 and to allocate the fifteen percentage points
among the seven bar examination subjects. In the same resolution, the Court
further resolved to create a Committee composed of three retired members of the
Court that would conduct a thorough investigation of the incident subject of the
23 September 2003 resolution.

In a resolution, dated 07 October 2003, the Court adopted the computation in the
allocation of the fifteen percentage points for Mercantile Law among the
remaining seven bar examination subjects, to wit:
Subject Original Adjusted Relative Adjusted
Percentage Percentage Weight Relative
Weight Weight Weight
Political and
International
Law 15% 17.647% 3 3.53%
Labor and
Social
Legislation 10% 11.765% 2 2.35%
Civil Law 15% 17.647% 3 3.53%
Taxation 10% 11.765% 2 2.35%
Criminal Law 10% 11.765% 2 2.35%
Remedial
Law 20% 23.529% 4 4.71
Legal Ethics
and Practical
Exercises 5% 5.882% 1 1.18%

100% 20%

In another resolution, dated 14 October 2003, the Court designated the following
retired Associate Justices of the Supreme Court to compose the Investigating
Committee:
Chairman: Justice Carolina C. Grio-Aquino

Members: Justice

Jose

A.R.

Melo

Justice Vicente V. Mendoza

The Investigating Committee was tasked to determine and identify the source
of leakage, the parties responsible therefor or who might have benefited
therefrom, recommend sanctions against all those found to have been
responsible for, or who would have benefited from, the incident in question
and to recommend measures to the Court to safeguard the integrity of
the bar examinations.
On 15 January 2004, the Investigating Committee submitted its report and
recommendation to the Court, herein reproduced in full; thus
"In the morning of September 21, 2003, the third Sunday of
the 2003 bar examinations, the examination in commercial law was held
in De la Salle University on Taft Avenue, Manila, the venue of
the bar examinations since 1995. The next day, the newspapers carried
news of an alleged leakage in the said examination. 1
"Upon hearing the news and making preliminary inquiries of his own,
Justice

Jose

C.

Vitug,

chairman

of

the 2003 Bar Examinations

Committee, reported the matter to the Chief Justice and recommended

that the examination in mercantile law be cancelled and that a formal
investigation of the leakage be undertaken.
"Acting on the report and recommendation of Justice Vitug, the Court, in
a resolution dated September 23, 2003, nullified the examination in
mercantile law and resolved to hold another examination in that subject
on Saturday, October 4, 2003 at eight o'clock in the evening (being the
earliest available time and date) at the same venue. However, because
numerous petitions, protests, and motions for reconsideration were filed
against the retaking of the examination in mercantile law, the Court
cancelled the holding of such examination. On the recommendation of
the Office of the Bar Confidant, the Court instead decided to allocate the

fifteen (15) percentage points for mercantile law among the seven (7)
other bar examination subjects (Resolution dated October 7, 2003).

DCHIAS

"In a Resolution dated September 29, 2003, the Supreme Court created
an Investigating Committee composed of three (3) retired Members of
the Court to conduct an investigation of the leakage and to submit its
findings and recommendations on or before December 15, 2003.
"The Court designated the following retired Associate Justices of the
Supreme Court to compose the Committee:
Chairman: Justice CAROLINA GRIO-AQUINO
Members: Justice

JOSE

A.

R.

MELO

Justice VICENTE V. MENDOZA

"The Investigating Committee was directed to determine and identify the
source of the leakage, the parties responsible therefor and those who
benefited therefrom, and to recommend measures to safeguard the
integrity of the bar examinations.
"The investigation commenced on October 21, 2003 and continued up to
November 7, 2003. The following witnesses appeared and testified at the
investigation:
1. Associate

Justice

Jose

C.

Vitug,

chairman

of

the 2003 Bar Examinations Committee;

2. Atty. Marlo Magdoza-Malagar, law clerk in the office of Justice
Vitug
3. Atty. Marcial O. T. Balgos, examiner in mercantile law;
4. Cheryl Palma, private secretary of Atty. Balgos;
5. Atty. Danilo De Guzman, assistant lawyer in the firm of Balgos
& Perez;
6. Atty. Enrico G. Velasco, managing partner of Balgos & Perez;

7. Eduardo J. F. Abella, reviewer in commercial law at the Lex

Review Center;
8. Silvestre T. Atienza, office manager of Balgos & Perez;
9. Reynita Villasis, private secretary of Atty. De Guzman;
10. Ronan Garvida, fraternity brother of Atty. De Guzman;
11. Ronald F. Collado, most illustrious brother of the Beta Sigma
Lambda Fraternity;
12. Jovito

M.

Salonga,

Asst.

Division

Chief

of

Systems

Development for Judicial Application, MISO;

The Committee held nine (9) meetings six times to conduct the
investigation and three times to deliberate on its report.
"ASSOCIATE

JUSTICE

JOSE

C.

VITUG,

chairman

of

the Bar Examinations Committee, testified that on Monday morning,

September 22, 2003, the day after the Barexamination in mercantile or
commercial law, upon arriving in his office in the Supreme Court, his
secretary, 2 Rose Kawada, informed him that one of the law clerks, Atty.
Mario Magdoza-Malagar, told her that a friend of hers named Ma. Cecilia
Delgado-Carbajosa, a bar examinee from Xavier University in Cagayan
de Oro City, who was staying at the Garden Plaza Hotel in Paco,
confided to her that something was wrong with the examination in
mercantile law, because previous to the examination,i.e., on Saturday
afternoon, the eve of the examination, she received a copy of the test
questions in that subject. She did not pay attention to the test questions
becauseno answers were provided, and she was hard-pressed to finish
her review of that subject, using other available bar review materials, of
which there were plenty coming from various bar review centers.
"However, upon perusing the questions after the examinations, Cecilia
noticed that many of them were the same questions that were asked in
the just-concludedexamination.

"Justice Vitug requested Marlo to invite her friend to his office in the
Supreme Court, but Carbajosa declined the invitation. So, Justice Vitug
suggested that Mario and Rose invite Carbajosa to meet them at
Robinson's Place, Ermita. She agreed to do that.
"Cecilia Carbajosa arrived at Robinson's Place at the appointed time and
showed the test questions to Rose and Mario. Rose obtained a xerox
copy of the leaked questions and compared them with the bar questions
in mercantile law. On the back of the pages, she wrote, in her own hand,
the differences she noted between the leaked questions and
the bar examination questions.
"Rose and Marlo delivered the copy of the leaked questions to Justice
Vitug who compared them with the bar examination questions in
mercantile law. He found the leaked questions to be the exact same
questions which the examiner in mercantile law, Attorney Marcial O. T.
Balgos, had prepared and submitted to him as chairman of
the Bar Examinations Committee. However, not all of those questions
were asked in the bar examination. According to Justice Vitug, only 75%
of the final barquestions were questions prepared by Atty. Balgos; 25%
prepared

by

Justice

Vitug

himself,

were

included

in

the

final bar examination. The questions prepared by Justice Vitug were not
among the leaked test questions.
"Apart from the published news stories about the leakage, Chief Justice
Hilario G. Davide, Jr. and Justice Vitug received, by telephone and mail,
reports of the leakage from Dean Mariano F. Magsalin, Jr. of the Arellano
Law Foundation (Exh. H) and a certain Dale Philip R. De los Reyes (Exh.
BB-3), attaching copies of the leaked questions and the fax transmittal
sheet showing that the source of the questions was Danny De Guzman
who faxed them to Ronan Garvida on September 17, 2003, four days
before the examination in mercantile law on September 21, 2003 (Exh.
B-1).

"ATTORNEY MARLO MAGDOZA-MALAGAR was subpoenaed by the

Committee. She identified the copy of the leaked questions that came
from Cecilia Carbajosa (Exh. A). She testified that, according to
Carbajosa, the latter received the test questions from one of her cobar reviewees staying, like her, at the Garden Plaza Hotel in Paco, and
also enrolled in the review classes at the Lex Review Center at the
corner of P. Faura Street and Roxas Boulevard, Ermita. She did not pay
for the hand-out because the Lex Review Center gives them away for
free to its bar reviewees.
"ATTORNEY MARCIAL O. T. BALGOS, 71 years of age, senior partner
in the law firm of BALGOS AND PEREZ with offices in Rm. 1009 West
Tektite Tower, Exchange Road, Ortigas Center, Pasig City, testified that
in November 2002, Justice Jose C. Vitug, as chair of the Committee on
the 2003 Bar Examinations, invited him to be the examiner in commercial
law. He accepted the assignment and almost immediately began the
preparation of test questions on the subject. Using his personal
computer in the law office, he prepared for three consecutive days, three
(3) sets of test questions which covered the entire subject of Mercantile
Law (pp. 35, tsn, Oct. 24, 2003). As he did not know how to prepare the
questionnaire in final form, he asked his private secretary, Cheryl Palma,
to format the questions (p. 13, tsn, Oct. 24, 2003). And, as he did not
know how to print the questionnaire, he likewise asked Cheryl Palma to
make a print-out (Id., pp. 1415). All of this was done inside his office
with only him and his secretary there. His secretary printed only one
copy (Id., p. 15). He then placed the printed copy of the test questions,
consisting of three sets, in an envelope which he sealed, and called up
Justice Vitug to inform him that he was bringing the questions to the
latter's office that afternoon. However, as Justice Vitug was leaving his
office shortly, he advised Atty. Balgos to give the sealed envelope to his
confidential assistant who had been instructed to keep it. When Atty.

Balgos arrived in the office of Justice Vitug, he was met by Justice

Vitug's confidential assistant to whom he entrusted the sealed envelope
containing the test questions (pp. 1926, tsn, Oct. 24, 2003).
"Atty. Balgos admitted that he does not know how to operate a computer
except to type on it. He does not know how to open and close his own
computer which has a password for that purpose. In fact, he did not
know, as he still does, the password. It is his secretary, Cheryl Palma,
who opened and closed his computer for him (p. 45, tsn, Oct. 24, 2003).
"Atty. Balgos testified that he did not devise the password himself. It was
Cheryl Palma who devised it (Id., p. 71).
"His computer is exclusively for his own use. It is located inside his room
which is locked when he is not in the office. He comes to the office every
other day only.
"He thought that his computer was safely insulated from third parties,
and that he alone had access to it. He was surprised to discover, when
reports of the bar leakage broke out, that his computer was in fact
interconnected with the computers of his nine (9) assistant attorneys
(tsn, pp. 30, 45). As a matter of fact, the employees Jovito M. Salonga
and Benjamin R. Kaffy of the Court's Management Information
Systems Office (MISO) who, upon the request of Atty. Balgos, were
directed by the Investigating Committee to inspect the computer system
in his office, reported that there were 16, not 9, computers connected to
each other via Local Area Network (LAN) and one (1) stand-alone
computer connected to the internet (Exh. M). Atty. Balgos' law partner,
former Justice Secretary Hernando Perez, also had a computer, but
Perez took it away when he became the Secretary of Justice.
"The nine (9) assistant attorneys with computers connected to Attorney
Balgos' computer, are:
1. Zorayda Zosobrado (she resigned in July 2003)

2. Claravel Javier
3. Rolynne Torio
4. Mark Warner Rosal
5. Charlynne Subia
6. Danilo De Guzman (resigned on October 22, 2003 [Exh. D])
7. Enrico G. Velasco, managing partner
8. Concepcion De los Santos
9. Pamela June Jalandoni
"Upon learning from Justice Vitug of the leakage of the bar questions
prepared by him in mercantile law, Atty. Balgos immediately called
together and questioned his office staff. He interrogated all of them
except Atty. Danilo De Guzman who was absent then. All of them
professed to know nothing about the bar leakage.
"He questioned Silvestre Atienza, the office manager, Atienza is only a
second year law student at MLQU. But he is an expert in installing and
operating computers. It was he and/or his brother Gregorio who
interconnected the computers in the law office, including Attorney Balgos'
computer, without the latter's knowledge and permission.
"Atienza

admitted

to

Attorney

Balgos

that

he

participated

in

the bar operations or 'bar ops' of the Beta Sigma Lambda law fraternity
of which he is a member, but he clarified that his participation consisted
only of bringing food to the MLQU bar examinees (Tsn, pp. 4647, Oct.
24, 2003).
"The next day, Attorney Balgos questioned Attorney Danilo De Guzman,
also a member of the Beta Sigma Lambda fraternity, FEU chapter. De
Guzman admitted to him that he downloaded the test questions from
Attorney Balgos' computer and faxed a copy to a fraternity brother.
Attorney Balgos was convinced that De Guzman was the source of the

leakage of his test questions in mercantile law (Tsn, p. 52, Oct.

24, 2003).
"Attorney Balgos prepared a COMPARISON (Exh. E) of the juxtaposed
final bar questions and his proposed test questions, with marginal
markings made by Justice Vicente V. Mendoza (Ret.), indicating whether
the questions are similar: (S); or different: (D), together with the
percentage points corresponding to each question. On the basis of this
comparative table and Atty. Balgos' indications as to which questions
were the same or different from those given in the final questionnaire,
Justice Mendoza computed the credit points contained in the proposed
leaked questions. The proposed questions constituted 82% of the
final bar questions. Attached to this Report as Annex A is the
comparative table and the computation of credit points marked as Exh.
E-1.

caITAC

"CHERYL PALMA, 34 years old, private secretary of Attorney Balgos for

the past six years, testified that she did not type the test questions. She
admitted, however, that it was she who formatted the questions and
printed one copy as directed by her employer. She confirmed Atty.
Balgos' testimony regarding her participation in the operation of his
personal computer. She disclosed that what appears in Atty. Balgos'
computer can be seen in the neighborhood network if the other
computers are open and not in use; that Silvestre Atienza of the
accounting section, can access Atty. Balgos' computer when the latter is
open and not in use.
"ATTORNEY ENRICO VELASCO, managing partner of the firm, testified
that on October 16, 2003, he sent De Guzman a memo (Exh. C) giving
him '72 hours to explain in writing why you should not be terminated for
causing the Firm an undeserved condemnation and dishonor because of
the leakage aforesaid.'

"On October 22, 2003, De Guzman handed in his resignation 'effective

immediately.' He explained that:
"'Causing the firm, its partners and members to
suffer from undeserved condemnation and humiliation is
not only farthest from, but totally out of, my mind. It is just
unfortunate

that

the

incident

subject matter of

your

memorandum occurred. Rest assured, though, that I have

never been part of any deliberate scheme to malign the
good reputation and integrity of the firm, its partners and
members.' (Exh. D)
"DANILO DE GUZMAN testified that he joined Balgos & Perez in April
2000. He obtained his LLB degree from FEU in 1998. As a student, he
was

an

awardee

for

academic

excellence.

He

passed

the

1998 bar examinations with a grade of 86.4%. In FEU, he joined the

Beta Sigma Lambda law fraternity which has chapters in MLQU, UE and
MSU (Mindanao State University). As a member of the fraternity, he was
active during bar examinations and participated in the fraternity's
'bar ops.'
"He testified that sometime in May 2003, when he was exploring Atty.
Balgos' computer, (which he often did without the owner's knowledge or
permission), to download materials which he thought might be useful to
save for future use, he found and downloaded the test questions in
mercantile law consisting of 12 pages. He allegedly thought they were
quizzers for a book that Atty. Balgos might be preparing. He saved them
in his hard disk.
"He thought of faxing the test questions to one of his fraternity 'brods,' a
certain Ronan Garvida who, De Guzman thought, was taking
the 2003 bar examinations. Garvida is also a law graduate from FEU. He
had taken the 2002 bar examinations, but did not pass.

"On

September

17, 2003,

four

days

before

the

mercantile

law bar examination, De Guzman faxed a copy of the 12-page-test

questions (Exhs. I, I-I, I-2, I-3) to Garvida because earlier he was
informed by Garvida that he was retaking the bar examinations. He
advised Garvida to share the questions with other 'Betan' examinees. He
allegedly did not charge anything for the test questions. Later, after
the examination was over, Garvida 'texted' (sent a text message on his
cell phone) him (De Guzman), that he did not take the bar examination.
"Besides Garvida, De Guzman faxed the mercantile law bar questions to
another fraternity brother named Arlan (surname unknown), through
Reynita (Nanette) Villasis, his secretary (Tsn, pp. 2028, Oct. 29, 2003).
But he himself faxed the questions to still another 'brod' named Erwin
Tan who had helped him during the 'bar ops' in 1998 when he (De
Guzman) took the bar examinations (Id., p. 28). He obtained the cell
phone numbers of Arlan and Erwin Tan from Gabby Tanpiengco whom
he informed by text message, that they were 'guide questions,' not tips,
in the mercantile law examination.

"When he was confronted by Attorney Velasco on Wednesday after

the examination, (news of the leakage was already in all the
newspapers), De Guzman admitted to Attorney Velasco that he faxed the
questions to his fraternity brothers, but he did not reveal where he got
the test questions.
"De Guzman received a text message from Erwin Tan acknowledging
that he received the test questions. However, Erwin informed him that
the questions were 'kalat na kalat' (all over the place) even if he did not
share them with others (Tsn, pp. 5455, Oct. 29, 2003).
"De Guzman also contacted Garvida who informed him that he gave
copies of the test questions to Betans Randy Inigo and James Bugain.

"Arlan also 'texted' De Guzman that almost all the questions were asked
in the examination. Erwin Tan commented that many of the leaked
questions were asked in the examination, 'pero hindi exacto; mi binago'
(they were not exactly the same; there were some changes).
"De Guzman tried to text Garvida, but he received no response.
"De Guzman disclosed that he learned how to operate a computer from
Silvestre Atienza, the office manager, and through self-study, by asking
those who are knowledgeable on computers. He has been using
computers since 1997, and he bought his own computer in 2001, a
Pentium 3, which he uses at home.
"REYNITA VILLASIS, the 36-year-old legal secretary of Attorney De
Guzman, submitted her affidavit (Exh. F) and orally affirmed her
participation in the reproduction and transmittal by fax of the leaked test
questions in mercantile law to Ronan Garvida and Arlan, as testified by
De Guzman.
RONAN GARVIDA, appeared before the Investigating Committee in
compliance with the subpoena that was issued to him. Garvida
graduated from FEU College of Law in 2000. He is about 32 years of
age. While still a student in 1998, he was afflicted with multiple sclerosis
or MS, a disease of the nervous system that attacks the nerve sheaths
of the brain and spinal cord. It is a chronic disabling disease although it
may have periods of remission. It causes its victim to walk with erratic,
stiff and staggering gait; the hands and fingers may tremble in
performing simple actions; the eyesight can be impaired, and speech
may be slow and slurred (p. 737, Vol. 2, Reader's Digest Medical
Encyclopedia, 1971 Ed., compiled by Benjamin F. Miller, M.D.). All these
symptoms were present when Garvida testified before the Committee on
November 6, 2003 to answer its questions regarding his involvement in
the leakage of the examiner's test questions in mercantile law.

"Garvida testified that when he was a freshman at FEU, he became a

member of the Beta Sigma Lambda fraternity where he met and was
befriended by Attorney De Guzman who was his senior by one and a
half years. Although they had been out of touch since he went home to
the province on account of the recurrence of his illness, De Guzman was
able [to] get this cell phone number from his compadre, Atty. Joseph
Pajara. De Guzman told Garvida that he was faxing him 'possible
questions in the bar examination in mercantile law.' Because the test
questions had no answers, De Guzman stressed that they were not 'tips'
but only 'possible test questions.'
"Garvida had intended to take the 2003 bar examinations. He enrolled in
the Consortium Review Center in FEU, paying P10,000.00 as enrollment
fee. However, on his way to the Supreme Court to file his application to
take the bar examination, he suffered pains in his wrist symptoms that
his MS had recurred. His physician advised him to go to the National
Orthopedic Hospital in Quezon City for treatment. This he did.
"He gave up his plan to take the 2003 bar examinations. Nevertheless,
he continued to attend the review classes at the Consortium Review
Center because he did not want to waste completely the P10,000enrollment fee that he paid for the review course ('Nahihinayang ako').
That was presumably why De Guzman thought that Garvida was taking
the bar exams and sent him a copy of the test questions in mercantile
law.
"Upon receipt of the test questions, Garvida faxed a copy to his 'brod'
Randy Iigo who was reviewing at the Consortium Review Center.
Randy photocopied them for distribution to other fraternity brods. Some
of the brods doubted the usefulness of the test questions, but Randy
who has a high regard for De Guzman, believed that the questions were
'tips.' Garvida did not fax the questions to any other person than Randy
Iigo. He allegedly did not sell the questions to Randy. 'I could not do
that to a brod,' he explained.

"In view of the fact that one of the copies of the leaked test questions
(Exh. H) bore on the left margin a rubber stamp composed of the Greek
initials 'BEA-MLQU,' indicating that the source of that copy was the Beta
Sigma Lambda chapter at MLQU, the Committee subpoenaed Ronald
Collado, the Most Illustrious Brother of the Beta Sigma Lambda fraternity
of MLQU.
"RONALD COLLADO is a senior law student at the MLQU. He admitted
that his fraternity conducted 'Bar Ops' for the 2003 bar exams. Bar Ops
are the biggest activity of the fraternity every year. They start as soon as
new officers of the fraternity are elected in June, and they continue until
the bar examinations are over. The baroperations consist of soliciting
funds

from

alumni

brods

and

friends

to

be

spent

in

reproducing bar review materials for the use of their 'barristers'

(bar candidates) in the various review centers, providing meals for their
'brod'-barristers on examination days; and to rent a 'bar site' or place
near De la Salle University where the examinees and the frat members
can convene and take their meals during the break time. The
Betans' bar site for the 2003 bar examinations was located on Leon
Guinto Street, Malate. On September 19 and 21, before [the] start of
the examination, Collado's fraternity distributed bar review materials for
the

mercantile

lawexamination to

the

examinees who

came

to

the bar site. The test questions (Exh. H) were received by Collado from a
brod, Alan Guiapal, who had received them from Randy Iigo.
"Collado caused 30 copies of the test questions to be printed with the
logo and initials of the fraternity (BEA-MLQU) for distribution to the 30
MLQU examinees taking the bar exams. Because of time constraints,
frat members were unable to answer the test questions despite the
clamor for answers, so, they were given out 'as is' without answers.
"DEAN EDUARDO J. F. ABELLA of the Jose 'Rizal University law school
in Mandaluyong City, was the reviewer in Mercantile Law and Practical
Exercises at the Lex Review Center which is operated by the Lex Review

& Seminars Inc., of which Dean Abella is one of the incorporators. He

learned about the leakage of test questions in mercantile law when he
was delivering the pre-week lecture on Legal Forms at the Arellano
University. The leaked questions were shown to him by his secretary,
Jenylyn Domingo, after the mercantile law exam. He missed the
Saturday lecture in mercantile law because he was suffering from a
touch of flu. He gave his last lecture on the subject on Wednesday or
Thursday before the exam. He denied having bought or obtained and
distributed

the

leaked

test

questions

in

Mercantile

Law

to

thebar reviewees in the Lex Review Center.

"FINDINGS
"The Committee finds that the leaked test questions in Mercantile Law
were the questions which the examiner, Attorney Marcial O. T. Balgos,
had prepared and submitted to Justice Jose C. Vitug, as chairman of
the 2003 Bar Examinations Committee. The questions constituted 82%
of the questions asked in the examination in Mercantile Law in the
morning of September 21, 2003, Sunday, in some cases with slight
changes which were not substantial and in other cases exactly as
proposed by Atty. Balgos. Hence, any bar examinee who was able to get
hold of the leaked questions before the mercantile law examination and
answered them correctly, would have been assured of passing
the examination with at least a grade of 82%!
"The circumstance that the leaked test questions consisted entirely of
test questions prepared by Atty. Balgos, proves conclusively that the
leakage originated from his office, not from the Office of Justice Vitug,
the Bar Examinations Chairman.
"Atty. Balgos claimed that the leaked test questions were prepared by
him on his computer. Without any doubt, the source of the leaked test
questions was Atty. Balgos' computer. The culprit who stole or
downloaded them from Atty. Balgos' computer without the latter's

knowledge and consent, and who faxed them to other persons, was Atty.
Balgos' legal assistant, Attorney Danilo De Guzman, who voluntarily
confessed the deed to the Investigating Committee. De Guzman
revealed that he faxed the test questions, with the help of his secretary
Reynita Villasis, to his fraternity 'brods,' namely, Ronan Garvida, Arlan
(whose surname he could not recall), and Erwin Tan.

ETDSAc

"In turn, Ronan Garvida faxed the test questions to Betans Randy Iigo
and James Bugain.
"Randy Iigo passed a copy or copies of the same questions to another
Betan, Alan Guiapal, who gave a copy to the MLQU-Beta Sigma
[Lambda's] Most Illustrious Brother, Ronald F. Collado, who ordered the
printing and distribution of 30 copies to the MLQU's 30 bar candidates.
"Attorney Danilo De Guzman's act of downloading Attorney Balgos' test
questions in mercantile law from the latter's computer, without his
knowledge and permission, was a criminal act of larceny. It was theft of
intellectual property; the test questions were intellectual property of
Attorney Balgos, being the product of his intellect and legal knowledge.
"Besides theft, De Guzman also committed an unlawful infraction of
Attorney Balgos' right to privacy of communication, and to security of his
papers and effects against unauthorized search and seizure rights
zealously protected by the Bill of Rights of our Constitution (Sections 2
and 3, Article III, 1987 Constitution).
"He transgressed the very first canon of the lawyers' Code of
Professional Responsibility which provides that '[a] lawyer shall uphold
the Constitution, obey the laws of the land, and promote respect for law
and legal processes.'

"By transmitting and distributing the stolen test questions to some

members of the Beta Sigma Lambda Fraternity, possibly for pecuniary

profit and to given them undue advantage over the other examiners in
the mercantile law examination, De Guzman abetted cheating or
dishonesty by his fraternity brothers in theexamination, which is violative
of Rule 1.01 of Canon 1, as well as Canon 7 of the Code of Professional
Responsibility for members of the Bar, which provide:
Rule 1.01 A lawyer shall not engage in unlawful,
dishonest, immoral or deceitful conduct
Canon 7 A LAWYER SHALL AT ALL TIMES
UPHOLD THE INTEGRITY AND DIGNITY OF THE
LEGAL PROFESSION AND SUPPORT THE ACTIVITIES
OF THE INTEGRATED BAR.
"De Guzman was guilty of grave misconduct unbecoming a member of
the Bar. He violated the law instead of promoting respect for it and
degraded the noble profession of law instead of upholding its dignity and
integrity. His actuations impaired public respect for the Court, and
damaged the integrity of the bar examinations as the final measure of a
law graduate's academic preparedness to embark upon the practice of
law.
"However, the Investigating Committee does not believe that De Guzman
was solely responsible for the leakage of Atty. Balgos' proposed test
questions in the mercantile law examination. The Committee does not
believe that he acted alone, or did not have the assistance and
cooperation of other persons, such as:
"Cheryl Palma, Atty. Balgos' private secretary, who,
according to Atty. Balgos himself, was the only person who
knew the password, who could open and close his
computer; and who had the key to his office where his
computer was kept. Since a computer may not be
accessed or downloaded unless it is opened, someone

must have opened Atty. Balgos' computer in order for De

Guzman to retrieve the test questions stored therein.
"Silvestre Atienza, also a fraternity 'brod' of De
Guzman, who was responsible for interconnecting Atty.
Balgos' computer with the other computers outside Atty.
Balgos' room or office, and who was the only other person,
besides Cheryl Palma, who knew the password of Atty.
Balgos' computer.
"The following persons who received from De Guzman, and
distributed copies of the leaked test questions, appear to have
conspired with him to steal and profit from the sale of the test
questions. They could not have been motivated solely by a desire
to help the fraternity, for the leakage was widespread ('kalat na
kalat') according to Erwin Tan. The possible co-conspirators were:
Ronan Garvida,
Arlan,
Erwin Tan,
Randy Iigo,
Ronald Collado, and
Allan Guiapal
"The Committee does not believe that De Guzman recklessly broke the
law and risked his job and future as a lawyer, out of love for the Beta
Sigma Lambda fraternity. There must have been an ulterior material
consideration for his breaking the law and tearing the shroud of secrecy
that, he very well knows, covers the barexaminations.
"On the other hand, the Committee finds that the theft of the test
questions from Atty. Balgos' computer could have been avoided if Atty.
Balgos had exercised due diligence in safeguarding the secrecy of the

test questions which he prepared. As the computer is a powerful modern

machine which he admittedly is not fairly familiar with, he should not
have trusted it to deep secret the test questions that he stored in its hard
disk. He admittedly did not know the password of his computer. He relied
on his secretary to use the password to open and close his computer. He
kept his computer in a room to which other persons had access.
Unfamiliar with the use of the machine whose potential for mischief he
could not have been totally unaware of, he should have avoided its use
for

so

sensitive

an

undertaking

as

typing

the

questions

in

the bar examination. After all he knew how to use the typewriter in the
use of which he is quite proficient. Atty. Balgos should therefore have
prepared the test questions in his trusty typewriter, in the privacy of his
home, (instead of his law office), where they would have been safe from
the prying eyes of secretaries and assistant attorneys. Atty. Balgos'
negligence in the preparation and safekeeping of his proposed test
questions for the bar examination in mercantile law, was not the
proximate cause of the 'bar leakage;' it was, in fact, the root cause. For, if
he had taken those simple precautions to protect the secrecy of his
papers, nobody could have stolen them and copied and circulated them.
The integrity of the bar examinations would not have been sullied by the
scandal. He admitted that 'Mali siguro ako, but that was what happened'
(43 tsn, Oct. 24, 2003).
"RECOMMENDATION
"This Honorable court in the case of Burbe v. Magulta, A.C. No. 5713,
June 10, 2002, 383 SCRA 276, pronounced the following reminder for
lawyers: 'Members of the barmust do nothing that may tend to lessen in
any degree the confidence of the public in the fidelity, the honesty and
integrity of the profession.' In another case, it likewise intoned: 'We
cannot overstress the duty of a lawyer to at all times uphold the integrity
and dignity of the legal profession. He can do this by faithfully performing
his duties to society, to the bar, to the courts, and to his clients.' (Reyes

v. Javier, A.C. No. 5574, February 2, 2002, 375 SCRA 538), It goes
without saying that a lawyer who violates this precept of the profession
by committing a gross misconduct which dishonors and diminishes the
'public's respect for the legal profession, should be disciplined.
"After careful deliberation, the Investigating Committee recommends
that:
"1. Attorney Danilo De Guzman be DISBARRED for he had shown that
he is morally unfit to continue as a member of the legal profession, for
grave dishonesty, lack of integrity, and criminal behavior. In addition, he
should make a written PUBLIC APOLOGY and pay DAMAGES to the
Supreme Court for involving it in another 'barscandal,' causing the
cancellation of the mercantile law examination, and wreaking havoc upon
the image of this institution.
2. Attorney Marcial O. T. Balgos should be REPRIMANDED by the Court
and likewise be required to make a written APOLOGY to the Court for
the public scandal he brought upon it as a result of his negligence and
lack of due care in preparing and safeguarding his proposed test
questions in mercantile law. As the Court had to cancel the Mercantile
Law examination on account of the 'leakage' of Attorney Balgos' test
questions,

which

comprised

82%

of

the bar questions

in

that examination, Atty. Balgos is not entitled to receive any honorarium

as examiner for that subject.
"3. FURTHER INVESTIGATION of Danilo De Guzman, Cheryl Palma,
Silvestre Atienza, Ronan Garvida, Arlan, Erwin Tan, Randy Inigo, James
Bugain, Ronald Collado and Allan Guiapal by the National Bureau of
Investigation and the Philippine National Police, with a view to their
criminal prosecution as probable co-conspirators in the theft and leakage
of the test questions in mercantile law.
"With regard to recommending measures to safeguard the integrity of
the bar examinations and prevent a repetition of future leakage in the

said examinations, inasmuch as this matter is at present under study by

the Court's Committee on Legal Education and Bar Matters, as an
aspect of proposals for bar reforms, the Investigating Committee
believes it would be well-advised to refrain from including in this report
what may turn out to be duplicative, if not contrary, recommendations on
the matter." 3

The

Court

adopts

the

report,

including

with

some

modifications

the

recommendation, of the Investigating Committee. The Court, certainly will not

countenance any act or conduct that can impair not only the integrity of
the Bar Examinations but the trust reposed on the Court.
The Court also takes note that Mr. Jovito M. Salonga and Mr. Benjamin R. Katly,
two of its employees assigned to the Management Information Systems Office
(MISO), who were tasked by the Investigating Committee to inspect the computer
system in the office of Atty. Balgos, found that the Court's Computer-Assisted
Legal Research (CALR) database 4 was installed in the computer used by Atty.
Balgos. Mr. Salonga and Mr. Katly reported that the system, which was
developed by the MISO, was intended for the exclusive use of the Court. The
installation thereof to any external computer would be unauthorized without the
permission of the Court. Atty. Velasco informed the two Court employees that the
CALR database was installed by Atty. De Guzman on the computer being used
by Atty. Balgos. The matter would also need further investigation to determine
how Atty. De Guzman was able to obtain a copy of the Court's CALR
database.

acTDCI

WHEREFORE, the Court, acting on the recommendations of the Investigating

Committee, hereby resolves to
(1) DISBAR Atty. DANILO DE GUZMAN from the practice of law
effective upon his receipt of this RESOLUTION;
(2) REPRIMAND Atty. MARCIAL O. T. BALGOS and DISENTITLE
him from receiving any honorarium as an Examiner in
Mercantile Law;

(3) Direct the National Bureau of Investigation (a) to undertake

further investigation of Danilo De Guzman, Cheryl Palma,
Silvestre Atienza, Ronan Garvida, Erwin Tan, Randy Iigo,
James Bugain, Ronald Collado and Allan Guiapal with a
view to determining their participation and respective
accountabilities

in

the bar examination leakage

and

to

conduct an investigation on how Danilo De Guzman was

able to secure a copy of the Supreme Court's CALR
database.
Let a copy of this Resolution be made part of the records of Danilo De Guzman in
the Office of the Bar Confidant, Supreme Court of the Philippines, and copies to
be furnished the Integrated Bar of the Philippines and circulated by the Office of
the Court Administrator to all courts.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez,

Carpio,

Austria-Martinez,

Corona,

Carpio

Morales and Callejo, Sr., JJ., concur.

Azcuna, J., is on official leave.

Tinga, J., took no part. Close to family of one of the parties involved
in bar scandal.
|||

(Re: 2003 Bar Examinations, B.M. No. 1222, February 04, 2004)

IN RE: PETITION TO SIGN IN THE ROLL OF ATTORNEYS

MICHAEL A. MEDADO, petitioner.

RESOLUTION

SERENO, C.J p:
We resolve the instant Petition to Sign in the Roll of Attorneys filed by
petitioner Michael A. Medado (Medado).
Medado graduated from the University of the Philippines with the degree of
Bachelor of Laws in 1979 1 and passed the same year's bar examinations
with a general weighted average of 82.7. 2
On 7 May 1980, he took the Attorney's Oath at the Philippine International
Convention Center (PICC) together with the successful bar examinees. 3 He
was scheduled to sign in the Roll of Attorneys on 13 May 1980, 4 but he
failed to do so on his scheduled date, allegedly because he had misplaced
the Notice to Sign the Roll of Attorneys 5given by the Bar Office when he
went home to his province for a vacation. 6
Several

years

later,

while

rummaging

through

his

old

college

files, Medado found the Notice to Sign the Roll of Attorneys. It was then that
he realized that he had not signed in the roll, and that what he had signed at
the entrance of the PICC was probably just an attendance record. 7 TCAScE
By the time Medado found the notice, he was already working. He stated that
he was mainly doing corporate and taxation work, and that he was not
actively involved in litigation practice. Thus, he operated "under the
mistaken belief [that] since he ha[d] already taken the oath, the signing of
the Roll of Attorneys was not as urgent, nor as crucial to his status as a
lawyer"; 8 and "the matter of signing in the Roll of Attorneys lost its urgency
and compulsion, and was subsequently forgotten." 9
In 2005, when Medado attended Mandatory Continuing Legal Education
(MCLE) seminars, he was required to provide his roll number in order for his
MCLE compliances to be credited. 10 Not having signed in the Roll of
Attorneys, he was unable to provide his roll number.

About seven years later, or on 6 February 2012, Medado filed the instant
Petition, praying that he be allowed to sign in the Roll of Attorneys. 11
The Office of the Bar Confidant (OBC) conducted a clarificatory conference on
the matter on 21 September 2012 12 and submitted a Report and
Recommendation

to

this

Court

on

February

2013. 13 The

OBC

recommended that the instant petition be denied for petitioner's gross

negligence, gross misconduct and utter lack of merit. 14 It explained that,
based on his answers during the clarificatory conference, petitioner could
offer no valid justification for his negligence in signing in the Roll of
Attorneys.15
After a judicious review of the records, we grant Medado's prayer in the
instant petition, subject to the payment of a fine and the imposition of a
penalty equivalent to suspension from the practice of law. IEAaST
At the outset, we note that not allowing Medado to sign in the Roll of
Attorneys would be akin to imposing upon him the ultimate penalty of
disbarment, a penalty that we have reserved for the most serious ethical
transgressions of members of the Bar.
In this case, the records do not show that this action is warranted.
For one, petitioner demonstrated good faith and good moral character when
he finally filed the instant Petition to Sign in the Roll of Attorneys. We note
that it was not a third party who called this Court's attention to petitioner's
omission; rather, it was Medado himself who acknowledged his own lapse,
albeit after the passage of more than 30 years. When asked by the Bar
Confidant why it took him this long to file the instant petition, Medado very
candidly replied:
Mahirap hong i-explain yan pero, yun bang at the time, what
can you say? Takot ka kung anong mangyayari sa'yo, you
don't know what's gonna happen. At the same time, it's a
combination of apprehension and anxiety of what's gonna

happen. And, finally it's the right thing to do. I have to come
here . . . sign the roll and take the oath as necessary. 16
For another, petitioner has not been subject to any action for disqualification
from the practice of law, 17 which is more than what we can say of other
individuals who were successfully admitted as members of the Philippine Bar.
For this Court, this fact demonstrates that petitioner strove to adhere to the
strict requirements of the ethics of the profession, and that he has prima
facie shown that he possesses the character required to be a member of the
Philippine Bar. CSHDTE
Finally, Medado appears
practitioner,

having

to
held

have

been

various

competent

positions

at

and
the

able

legal

Laurel

Law

Office, 18 Petron, Petrophil Corporation, the Philippine National Oil Company,

and the Energy Development Corporation. 19
All these demonstrate Medado's worth to become a full-fledged member of
the Philippine Bar. While the practice of law is not a right but a
privilege, 20 this Court will not unwarrantedly withhold this privilege from
individuals who have shown mental fitness and moral fiber to withstand the
rigors of the profession.
That said, however, we cannot fully exculpate petitioner Medado from all
liability for his years of inaction.
Petitioner has been engaged in the practice of law since 1980, a period
spanning more than 30 years, without having signed in the Roll of
Attorneys. 21 He justifies this behavior by characterizing his acts as "neither
willful nor intentional but based on a mistaken belief and an honest error of
judgment." 22
We disagree.
While an honest mistake of fact could be used to excuse a person from the
legal consequences of his acts 23 as it negates malice or evil motive, 24 a
mistake of law cannot be utilized as a lawful justification, because everyone

is presumed to know the law and its consequences. 25 Ignorantia facti

excusat; ignorantia legis neminem excusat. cCSDTI
Applying these principles to the case at bar, Medado may have at first
operated under an honest mistake of fact when he thought that what he had
signed at the PICC entrance before the oath-taking was already the Roll of
Attorneys. However, the moment he realized that what he had signed was
merely an attendance record, he could no longer claim an honest mistake of
fact as a valid justification. At that point, Medado should have known that he
was not a full-fledged member of the Philippine Bar because of his failure to
sign in the Roll of Attorneys, as it was the act of signing therein that would
have made him so. 26 When, in spite of this knowledge, he chose to
continue practicing law without taking the necessary steps to complete all
the requirements for admission to the Bar, he willfully engaged in the
unauthorized practice of law.
Under the Rules of Court, the unauthorized practice of law by one's assuming
to be an attorney or officer of the court, and acting as such without authority,
may constitute indirect contempt of court, 27 which is punishable by fine or
imprisonment or both. 28 Such a finding, however, is in the nature of
criminal contempt 29 and must be reached after the filing of charges and the
conduct of hearings. 30 In this case, while it appears quite clearly that
petitioner committed indirect contempt of court by knowingly engaging in
unauthorized practice of law, we refrain from making any finding of liability
for indirect contempt, as no formal charge pertaining thereto has been filed
against him.
Knowingly engaging in unauthorized practice of law likewise transgresses
Canon 9 of the Code of Professional Responsibility, which provides: HSTaEC
CANON 9 A lawyer shall not, directly or indirectly, assist in
the unauthorized practice of law.
While a reading of Canon 9 appears to merely prohibit lawyers from assisting
in the unauthorized practice of law, the unauthorized practice of law by the

lawyer himself is subsumed under this provision, because at the heart of

Canon 9 is the lawyer's duty to prevent the unauthorized practice of law. This
duty likewise applies to law students and Bar candidates. As aspiring
members of the Bar, they are bound to comport themselves in accordance
with the ethical standards of the legal profession.
Turning now to the applicable penalty, previous violations of Canon 9 have
warranted

the

penalty

of

suspension

from

the

practice

of

law. 31 As Medado is not yet a full-fledged lawyer, we cannot suspend him

from the practice of law. However, we see it fit to impose upon him a penalty
akin to suspension by allowing him to sign in the Roll of Attorneys one (1)
year after receipt of this Resolution. For his transgression of the prohibition
against the unauthorized practice of law, we likewise see it fit to fine him in
the amount of P32,000. During the one year period, petitioner is warned that
he is not allowed to engage in the practice of law, and is sternly warned that
doing any act that constitutes practice of law before he has signed in the Roll
of Attorneys will be dealt with severely by this Court.
WHEREFORE, the instant Petition to Sign in the Roll of Attorneys is
hereby GRANTED. Petitioner Michael A. Medado is ALLOWED to sign in the
Roll of Attorneys ONE (1) YEAR after receipt of this Resolution. Petitioner is
likewise ORDERED to pay a FINE of P32,000 for his unauthorized practice of
law. During the one year period, petitioner is NOT ALLOWED to practice law,
and is STERNLY WARNED that doing any act that constitutes practice of law
before he has signed in the Roll of Attorneys will be dealt with severely by
this Court. cDTaSH
Let a copy of this Resolution be furnished the Office of the Bar Confidant, the
Integrated Bar of the Philippines, and the Office of the Court Administrator
for circulation to all courts in the country.
SO ORDERED.
||| (In re Medado, B.M. No. 2540, Se

In re Attorney FELIX P. DAVID.

Felix P. David in his own behalf.
Solicitor General Felix Angelo Bautista and Solicitor Estrella Abad
Santos for the Government.
SYLLABUS
1. ATTORNEYS-AT-LAW; DISBARMENT; MISAPPROPRIATION OF
FUNDS ENTRUSTED TO HIM BY HIS CLIENT. A lawyer who
misappropriates the money of his client is guilty of unprofessional conduct.

DECISION

REYES, J :
p

The respondent, Felix P. David, a member of the Philippine Bar, is

charged with malpractice for misappropriating funds entrusted to him by his
client, the complainant Briccio S. Henson. Respondent having answered
denying the charge, the complaint was referred to the Solicitor General for
investigation. After investigation the Solicitor General rendered his report
finding the respondent guilty of professional misconduct and recommending
disciplinary action. The Solicitor General reports the following facts to have
been conclusively established:
". . . that on February 15, 1947, respondent obtained P840 from
his client Briccio Henson to be applied to the payment of inheritance and
real estate taxes due from the estate of Esteban Henson for 1945, 1946
and 1947 (p. 3, t. s. n.), for which he signed a receipt (Annex 'A'; p. 3, t.
s. n.). On several occasions, complainant asked the respondent to show
him the official tax receipt evidencing the payment of said taxes, to which

the latter answered that he had already paid them, but the receipts were
left with his friend in San Fernando. Respondent promised to give the
receipt later. Complainant waited patiently for it but it was never
delivered. After the respondent had failed to deliver the receipt,
complainant became suspicious and inquired from the provincial
treasurer of Pampanga about the matter. Said official gave the
information that the taxes were never paid. Consequently, complainant
requested the respondent to refund the money given him for the payment
of said taxes (p. 7, t. s. n., OSG), but he failed to do so. Respondent
made several promises to return the money which he never complied.
Neither had he done anything to transfer the titles of the land in the
name of the heirs of Esteban Henson up to the present (p. 9, t. s.
n.). In view of this failure of the respondent, the complainant was
ultimately forced to pay the taxes out of his own pocket (p. 8, t. s. n.)."

Required to answer the complaint formulated by the Solicitor General

on the basis of his report, respondent failed to do so. And despite due notice
he likewise failed to appear at the hearing before this Court. Indeed, we note
from the Solicitor General's report that respondent, instead of welcoming
every opportunity for hearing, seems to have wanted to avoid it. On this point
the report says:
"At the hearing held on May 26, 1948, both parties appeared and
the complainant testified. After the complainant had testified, the hearing
was set for continuance the following day. Both parties agreed in the
presence of the investigator to postpone said hearing for June 5, 1948.
On June 5, 1948, complainant appeared, but respondent did not show
up, so to give the respondent a chance, the investigator postponed the
continuation of the hearing to June 17. Both parties were duly
supoenaed (attached to the records). On June 15th, respondent sent a
letter (attached to the records) to Assistant Solicitor General Ruperto
Kapunan, asking that the hearing be postponed to June 25, 1948.
Acceding to the request, both parties were again duly subpoenaed for

June 25, 1948 (attached to the records). In the subpoena sent to

respondent, his attention was invited to Rule 127, section 28, of the
Rules of Court, which provides that if he fails to appear and answer the
charge, the Solicitor in charge will proceed to hear the case ex
parte. Inspite of this, on the morning of June 25, he again sent another
letter (attached to the records) to Assistant Solicitor General Kapunan,
asking that the hearing be transferred to July 7, or 8, 1948. In order that
respondent may be given all the chances to defend himself, his request
was granted. In the subpoena sent him setting the hearing for July 8,
1948, as requested, the following remark was stated:
"'Failure on your part to appear will cause the investigator to
proceed

with

the

investigation

and

to

file

the

corresponding

recommendation to the Supreme Court. No further postponement will be

entertained.'
"It is worthwhile mentioning that every time the case was set for
hearing the complainant made his appearance.
"On the morning of July 8, 1948, both parties appeared;
respondent made a formal request in person to the investigator asking
that the hearing be postponed to 2 o'clock p.m. of the same day. Out of
consideration to him, even to the discomfiture of complainant,
respondent's request was again granted. But contrary to his assurance,
the respondent again failed to appear."

There is no question that respondent received from complainant; the

sum of P840 for the specific purpose of applying the same to the payment of
taxes due from the estate which he was engaged to settle. The receipt which
he issued for said amount as well as for the sum of P110 and a sack of rice
paid to him for his expenses and fee reads as follows:
"February 15, 1947
"Received from Mr. Briccio S. Henson the sum of eight hundred
and forty (P840) pesos to be paid as follows:

"P210 Inheritance tax of the heirs of late Don Esteban Henson.

"P630 Land taxes for 1945-1947.
"Failure on my part to deliver to him the official receipts
corresponding to the above mentioned amount, I promise to return to him
the whole amount of P840 not later than April 16, 1947 without any
obligation on his part.
"A separate amount of one hundred and ten (P110) pesos and a
sack of rice was paid to me for my expenses and fee.
(Sgd.) "Atty. FELIX DAVID"

Respondent did not care to testify. But through his unverified answer, he would
make it appear that he was entitled to and had been promised a legal fee for
his services and that, as this promise was not complied with, he "saw it fit to
withhold said amount (the P840 for taxes) until he is paid." This explanation is
obviously an afterthought and clearly unfounded. For the established fact is
that respondent at first made complainant believe that the sum in question
had already been applied by him to the payment of taxes, and, as testified to
by complainant, for the little that respondent was able to do in connection with
the case entrusted to him, he has already received his fee as shown by the
above-copied receipt. The conclusion is therefore irresistible that respondent
misappropriated the money of his client. This makes him guilty of
unprofessional conduct.
In view of the gravity of the misconduct committed, the respondent Felix
P. David is hereby ordered suspended from the practice of law for a period of
five years from the date this decision becomes final, without prejudice to a
more severe action if the sum misappropriated is not refunded within one
month from the same date.
Moran, C.J., Ozaeta, Feria, Bengzon, Padilla, Tuason,
Montemayor and Torres, JJ., concur.

|||

(In re: David, Adm. No. 35, September 30, 1949)

RENATO
HON.

L. CAYETANO, petitioner, vs. CHRISTIAN MONSOD,

JOVITO

R.

SALONGA,

COMMISSION

ON

APPOINTMENTS, and HON. GUILLERMO CARAGUE in his

capacity

as

Secretary

of

Budget

and

Management, respondents.
Renato L. Cayetano for and in his own behalf.
Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.

DECISION

PARAS, J :
p

We are faced here with a controversy of far-reaching proportions. While

ostensibly only legal issues are involved, the Court's decision in this case would
indubitably have a profound effect on the political aspect of our national
existence.
The 1987 Constitution provides in Section 1(1), Article IX-C:
"There shall be a Commission on Elections composed of a Chairman
and six Commissioners who shall be natural-born citizens of the
Philippines and, at the time of their appointment, at least thirty-five years
of age, holders of a college degree, and must not have been candidates
for any elective position in the immediately preceding elections.
However, a majority thereof, including the Chairman, shall be members
of the Philippine Bar who have been engaged in the practice of law for at
least ten years." (Emphasis supplied)

The aforequoted provision is patterned after Section 1(1), Article XII-C of

the 1973 Constitution which similarly provides:
"There shall be an independent Commission on Elections composed of a
Chairman and eight Commissioners who shall be natural-born citizens of
the Philippines and, at the time of their appointment, at least thirty-five
years of age and holders of a college degree. However, a majority
thereof, including the Chairman, shall be members of the Philippine
Bar who have been engaged in the practice of law for al least ten
years." (Emphasis supplied)

Regrettably, however, there seems to be no jurisprudence as to what constitutes

practice of law as a legal qualification to an appointive office.

cdphil

Black defines "practice of law" as:

"The rendition of services requiring the knowledge and the application of
legal principles and technique to serve the interest of another with his
consent. It is not limited to appearing in court, or advising and assisting
in the conduct of litigation, but embraces the preparation of pleadings,
and other papers incident to actions and special proceedings,
conveyancing, the preparation of legal instruments of all kinds, and the
giving of all legal advice to clients. It embraces all advice to clients and
all actions taken for them in matters connected with the law. An attorney
engages in the practice of law by maintaining an office where he is held
out to be an attorney, using a letterhead describing himself as an
attorney, counseling clients in legal matters, negotiating with opposing
counsel about pending litigation, and fixing and collecting fees for
services rendered by his associate." (Black's Law Dictionary, 3rd ed.).

The practice of law is not limited to the conduct of cases in court. (Land Title
Abstract and Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650) A person is
also considered to be in the practice of law when he:
". . . for valuable consideration engages in the business of advising
person, firms, associations or corporations as to their rights under the

law, or appears in a representative capacity as an advocate in

proceedings pending or prospective, before any court, commissioner,
referee, board, body, committee, or commission constituted by law or
authorized to settle controversies and there, in such representative
capacity performs any act or acts for the purpose of obtaining or
defending the rights of their clients under the law. Otherwise stated, one
who, in a representative capacity, engages in the business of advising
clients as to their rights under the law, or while so engaged performs any
act or acts either in court or outside of court for that purpose, is engaged
in the practice of law." (State ex. rel. Mckittrick v. C.S. Dudley and
Co., 102 S.W. 2d 895, 340 Mo. 852).

This Court in the case of Philippine Lawyers Association v. Agrava, (105 Phil.
173, 176-177) stated:
"The practice of law is not limited to the conduct of cases or litigation in
court; it embraces the preparation of pleadings and other papers incident
to actions and special proceedings, the management of such actions
and proceedings on behalf of clients before judges and courts, and in
addition, conveying. In general, all advice to clients, and all action taken
for them in matters connected with the law incorporation services,
assessment and condemnation services contemplating an appearance
before a judicial body, the foreclosure of a mortgage, enforcement of a
creditor's claim in bankruptcy and insolvency proceedings, and
conducting proceedings in attachment, and in matters of estate and
guardianship have been held to constitute law practice, as do the
preparation and drafting of legal instruments, where the work done
involves the determination by the trained legal mind of the legal effect of
facts and conditions." (5 Am. Jr. p. 262, 263). (Emphasis supplied)
"Practice of law under modern conditions consists in no small part of
work performed outside of any court and having no immediate relation to
proceedings in court. It embraces conveyancing, the giving of legal
advice on a large variety of subjects, and the preparation and execution

of legal instruments covering an extensive field of business and trust

relations and other affairs. Although these transactions may have no
direct connection with court proceedings, they are always subject to
become involved in litigation. They require in many aspects a high
degree of legal skill, a wide experience with men and affairs, and great
capacity for adaptation to difficult and complex situations. These
customary functions of an attorney or counselor at law bear an intimate
relation to the administration of justice by the courts. No valid distinction,
so far as concerns the question set forth in the order, can be drawn
between that part of the work of the lawyer which involves appearance in
court and that part which involves advice and drafting of instruments in
his office. It is of importance to the welfare of the public that these
manifold customary functions be performed by persons possessed of
adequate learning and skill, of sound moral character, and acting at all
times under the heavy trust obligations to clients which rests upon all
attorneys." (Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.],
p. 665-666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313,
quoted inRhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179
A. 139, 144). (Emphasis ours).

The University of the Philippines Law Center in conducting orientation briefing for
new lawyers (1974-1975) listed the dimensions of the practice of law in even
broader terms as advocacy, counseling and public service.
"One may be a practicing attorney in following any line of employment in
the profession. If what he does exacts knowledge of the law and is of a
kind usual for attorneys engaging in the active practice of their
profession, and he follows some one or more lines of employment such
as this he is a practicing attorney at law within the meaning of the
statute." (Barr D. Cardell, 155 NW 312).

Practice of law means any activity, in or out of court, which requires the
application of law, legal procedure, knowledge, training and experience. "To
engage in the practice of law is to perform those acts which are characteristics of

the profession. Generally, to practice law is to give notice or render any kind of
service, which device or service requires the use in any degree of legal
knowledge or skill." (111 ALR 23).
The following records of the 1986 Constitutional Commission show that it has
adopted a liberal interpretation of the term "practice of law."

cdrep

"MR. FOZ. Before we suspend the session, may I make a manifestation

which I forgot to do during our review of the provisions on the
Commission on Audit. May I be allowed to make a very brief statement?
"THE PRESIDING OFFICER (Mr. Jamir).
The Commissioner will please proceed.
"MR. FOZ. This has to do with the qualifications of the members of the
Commission on Audit. Among others, the qualifications provided for by
Section 1 is that 'They must be Members of the Philippine Bar' I am
quoting from the provision 'who have been engaged in the practice of
law for at least ten years.' "
"To avoid any misunderstanding which would result in excluding
members of the Bar who are now employed in the COA or Commission
on Audit, we would like to make the clarification that this provision on
qualifications regarding members of the Bar does not necessarily refer or
involve actual practice of law outside the COA. We have to interpret this
to mean that as long as the lawyers who are employed in the COA are
using their legal knowledge or legal talent in their respective work within
COA, then they are qualified to be considered for appointment as
members or commissioners, even chairman, of the Commission on
Audit.
"This has been discussed by the Committee on Constitutional
Commissions and Agencies and we deem it important to take it up on
the floor so that this interpretation may be made available whenever this

provision on the qualifications as regards members of the Philippine Bar

engaging in the practice of law for at least ten years is taken up.
"MR. OPLE. Will Commissioner Foz yield to just one question.
"MR. FOZ. Yes, Mr. Presiding Officer.
"MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer
is equivalent to the requirement of a law practice that is set forth in the
Article on the Commission on Audit?"
MR. FOZ. We must consider the fact that the work of COA although it is
auditing, will necessarily involve legal work; it will involve legal work. And,
therefore, lawyers who are employed in COA now would have the
necessary

qualifications

in

accordance

with

the

provision

on

qualifications under our provisions on the Commission on Audit. And,

therefore, the answer is yes.

"MR. OPLE. Yes. So that the construction given to this is that this is
equivalent to the practice of law.
"MR. FOZ. Yes, Mr. Presiding Officer.
"MR. OPLE. Thank you."
. . . (Emphasis supplied)

Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that
the Chairman and two Commissioners of the Commission on Audit (COA) should
either be certified public accountants with not less than ten years of auditing
practice, or members of the Philippine Bar who have been engaged in
the practice of law for at least ten years. (emphasis supplied)
Corollary to this is the term "private practitioner" and which is in many ways
synonymous with the word "lawyer." Today, although many lawyers do not
engage in private practice, it is still a fact that the majority of lawyers are private

practitioners. (Gary Munneke, Opportunities in Law Careers [VGM Career

Horizons: Illinois), 1986], p. 15]).
At this point, it might be helpful to define private practice. The term, as commonly
understood, means "an individual or organization engaged in the business of
delivering legal services." (Ibid.). Lawyers who practice alone are often called
"sole practitioners." Groups of lawyers are called "firms." The firm is usually a
partnership and members of the firm are the partners. Some firms may be
organized as professional corporations and the members called shareholders. In
either case, the members of the firm are the experienced attorneys. In most firms,
there are younger or more inexperienced salaried attorneys called "associates."
(Ibid.).
The test that defines law practice by looking to traditional areas of law practice is
essentially tautologies, unhelpful defining the practice of law as that which
lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West Publishing Co.:
Minnesota, 1986], p. 593). The practice of law is defined as "the performance of
any acts . . . in or out of court, commonly understood to be the practice of law.
(State Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A. 2d 863,
870 [1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A. 2d 623,
626 [1941]). Because lawyers perform almost every function known in the
commercial and governmental realm, such a definition would obviously be too
global to be workable. (Wolfram, op. cit.)
The appearance of a lawyer in litigation in behalf of a client is at once the most
publicly familiar role for lawyers as well as an uncommon role for the average
lawyer. Most lawyers spend little time in courtrooms, and a large percentage
spend their entire practice without litigating a case. (Ibid., p. 593). Nonetheless,
many lawyers do continue to litigate and the litigating lawyer's role colors much of
both the public image and the self-perception of the legal profession. (Ibid.).

LibLex

In this regard thus, the dominance of litigation in the public mind reflects history,
not reality. (Ibid.). Why is this so? Recall that the late Alexander Sycip, a
corporate lawyer, once articulated on the importance of a lawyer as a business

counselor in this wise: "Even today, there are still uninformed laymen whose
concept of an attorney is one who principally tries cases before the courts. The
members of the bench and bar and the informed laymen such as businessmen,
know that in most developed societies today, substantially more legal work is
transacted in law offices than in the courtrooms. General practitioners of law who
do both litigation and non-litigation work also know that in most cases they find
themselves spending more time doing what [is] loosely describe[d] as business
counseling than in trying cases. The business lawyer has been described as the
planner, the diagnostician and the trial lawyer, the surgeon. I[t] need not [be]
stress[ed] that in law, as in medicine, surgery should be avoided where internal
medicine can be effective." (Business Star, "Corporate Finance Law," Jan. 11,
1989, p. 4).
In the course of a working day the average general practitioner will engage in a
number of legal tasks, each involving different legal doctrines, legal skills, legal
processes, legal institutions, clients, and other interested parties. Even the
increasing numbers of lawyers in specialized practice will usually perform at least
some legal services outside their specialty. And even within a narrow specialty
such as tax practice, a lawyer will shift from one legal task or role such as advicegiving to an importantly different one such as representing a client before an
administrative agency. (Wolfram, supra, p. 687).
By no means will most of this work involve litigation, unless the lawyer is one of
the relatively rare types a litigator who specializes in this work to the exclusion
of much else. Instead, the work will require the lawyer to have mastered the full
range of traditional lawyer skills of client counselling, advice-giving, document
drafting, and negotiation. And increasingly lawyers find that the new skills of
evaluation and mediation are both effective for many clients and a source of
employment. (Ibid.).
Most lawyers will engage in non-litigation legal work or in litigation work that is
constrained in very important ways, at least theoretically, so as to remove from it
some of the salient features of adversarial litigation. Of these special roles, the
most prominent is that of prosecutor. In some lawyers' work the constraints are

imposed both by the nature of the client and by the way in which the lawyer is
organized into a social unit to perform that work. The most common of these
roles are those of corporate practice and government legal service. (Ibid.).
In several issues of the Business Star, a business daily, herein below quoted are
emerging trends in corporate law practice, a departure from the traditional
concept of practice of law.
We are experiencing today what truly may be called a revolutionary
transformation in corporate law practice. Lawyers and other professional
groups, in particular those members participating in various legal-policy
decisional contexts, are finding that understanding the major emerging
trends in corporation law is indispensable to intelligent decision-making.
Constructive adjustment to major corporate problems of today requires
an accurate understanding of the nature and implications of the
corporate law research function accompanied by an accelerating rate of
information accumulation. The recognition of the need for such improved
corporate legal policy formulation, particularly "model-making" and
contingency planning," has impressed upon us the inadequacy of
traditional procedures in many decisional contexts.
In a complex legal problem the mass of information to be processed, the
sorting and weighing of significant conditional factors, the appraisal of
major trends, the necessity of estimating the consequences of given
courses of action, and the need for fast decision and response in
situations of acute danger have prompted the use of sophisticated
concepts of information flow theory, operational analysis, automatic data
processing, and electronic computing equipment. Understandably, an
improved decisional structure must stress the predictive component of
the policy-making process, wherein a model", of the decisional context or
a segment thereof is developed to test projected alternative courses of
action in terms of futuristic effects flowing therefrom.

Although members of the legal profession are regularly engaged in

predicting and projecting the trends of the law, the subject of corporate
finance law has received relatively little organized and formalized
attention in the philosophy of advancing corporate legal education.
Nonetheless, a cross-disciplinary approach to legal research has
become a vital necessity.
Certainly, the general orientation for productive contributions by those
trained primarily in the law can be improved through an early introduction
to multi-variable decisional contexts and the various approaches for
handling such problems. Lawyers, particularly with either a master's or
doctorate degree in business administration or management, functioning
at the legal policy level of decision-making now have some appreciation
for the concepts and analytical techniques of other professions which are
currently engaged in similar types of complex decision-making.
Truth to tell, many situations involving corporate finance problems would
require the services of an astute attorney because of the complex legal
implications that arise from each and every necessary step in securing
and maintaining the business issue raised. (Business Star, "Corporate
Finance Law," Jan. 11, 1989, p. 4).
In our litigation-prone country, a corporate lawyer is assiduously referred
to as the "abogado de campanilla." He is the "big-time" lawyer, earning
big money and with a clientele composed of the tycoons and magnates
of business and industry.
Despite the growing number of corporate lawyers, many people could
not explain what it is that a corporate lawyer does. For one, the number
of attorneys employed by a single corporation will vary with the size and
type of the corporation. Many smaller and some large corporations farm
out all their legal problems to private law firms. Many others have inhouse counsel only for certain matters. Other corporation have a staff
large enough to handle most legal problems in-house.

A corporate lawyer, for all intents and purposes, is a lawyer who handles
the legal affairs of a corporation. His areas of concern or jurisdiction may
include, inter alia: corporate legal research, tax laws research, acting out
as corporate secretary (in board meetings), appearances in both courts
and other adjudicatory agencies (including the Securities and Exchange
Commission), and in other capacities which require an ability to deal with
the law.

LLjur

At any rate, a corporate lawyer may assume responsibilities other than

the

legal

affairs

of

the

business

of

the

corporation

he

is

representing. These include such matters as determining policy and

becoming involved in management. (Emphasis supplied.)

In a big company, for example, one may have a feeling of being isolated
from the action, or not understanding how one's work actually fits into the
work of the organization. This can be frustrating to someone who needs
to see the results of his work first hand. In short, a corporate lawyer is
sometimes offered this fortune to be more closely involved in the running
of the business.
Moreover, a corporate lawyer's services may sometimes be engaged by
a multinational corporation (MNC). Some large MNCs provide one of the
few opportunities available to corporate lawyers to enter the international
law field. After all, international law is practiced in a relatively small
number of companies and law firms. Because working in a foreign
country is perceived by many as glamorous, this is an area coveted by
corporate lawyers. In most cases, however, the overseas jobs go to
experienced attorneys while the younger attorneys do their "international
practice" in law libraries. (Business Star, "Corporate Law Practice," May
25, 1990, p. 4).
This brings us to the inevitable, i.e., the role of the lawyer in the realm of
finance. To borrow the lines of Harvard-educated lawyer Bruce

Wassertein, to wit: "A bad lawyer is one who fails to spot problems, a
good lawyer is one who perceives the difficulties, and the excellent
lawyer is one who surmounts them." (Business Star, "Corporate Finance
Law," Jan. 11, 1989, p. 4).
Today, the study of corporate law practice direly needs a "shot in the
arm," so to speak. No longer are we talking of the traditional law teaching
method of confining the subject study to the Corporation Code and the
Securities Code but an incursion as well into the intertwining modern
management issues.
Such corporate legal management issues deal primarily with three (3)
types of learning: (1) acquisition of insights into current advances which
are of particular significance to the corporate counsel; (2) an introduction
to usable disciplinary skills applicable to a corporate counsel's
management responsibilities; and (3) a devotion to the organization and
management of the legal function itself.
These three subject areas may be thought of as intersecting circles, with
a shared area linking them. Otherwise known as "intersecting
managerial jurisprudence," it forms a unifying theme for the corporate
counsel's total learning.
Some current advances in behavior and policy sciences affect the
counsel's role. For that matter, the corporate lawyer reviews the
globalization process, including the resulting strategic repositioning that
the firms he provides counsel for are required to make, and the need to
think about a corporation's strategy at multiple levels. The salience of the
nation-state is being reduced as firms deal both with global multinational
entities and simultaneously with sub-national governmental units. Firms
increasingly collaborate not only with public entities but with each other
often with those who are competitors in other arenas.
Also, the nature of the lawyer's participation in decision-making within
the corporation is rapidly changing. The modern corporate lawyer has

gained a new role as a stockholder in some cases participating in the

organization and operations of governance through participation on
boards and other decision-making roles. Often these new patterns
develop alongside existing legal institutions and laws are perceived as
barriers. These trends are complicated as corporations organize for
global operations. (Emphasis supplied).
The practising lawyer of today is familiar as well with governmental
policies toward the promotion and management of technology. New
collaborative arrangements for promoting specific technologies or
competitiveness more generally require approaches from industry that
differ from older, more adversarial relationships and traditional forms of
seeking to influence governmental policies. And there are lessons to be
learned from other countries. In Europe, Esprit, Eureka and Race are
examples of collaborative efforts between governmental and business
Japan's MITI is world famous. (Emphasis supplied)
Following the concept of boundary spanning, the office of the Corporate
Counsel comprises a distinct group within the managerial structure of all
kinds of organizations. Effectiveness of both long-term and temporary
groups within organizations has been found to be related to identifiable
factors in the group-context interaction such as the groups actively
revising their knowledge of the environment, coordinating work with
outsiders, promoting team achievements within the organization. In
general, such external activities are better predictors of team
performance than internal group processes.
In a crisis situation, the legal managerial capabilities of the corporate
lawyer vis-a-vis the managerial mettle of corporations are challenged.
Current research is seeking ways both to anticipate effective managerial
procedures and to understand relationships of financial liability and
insurance considerations. (emphasis supplied)

Regarding the skills to apply by the corporate counsel, three factors

are apropos:
First System Dynamics. The field of systems dynamics has been found
an effective tool for new managerial thinking regarding both planning and
pressing immediate problems. An understanding of the role of feedback
loops, inventory levels, and rates of flow, enable users to simulate all
sorts of systematic problems physical, economic, managerial, social,
and psychological. New programming techniques now make the systems
dynamics principles more accessible to managers including corporate
counsels. (Emphasis supplied).
Second Decision Analysis. This enables users to make better decisions
involving complexity and uncertainty. In the context of a law department,
it can be used to appraise the settlement value of litigation, aid in
negotiation settlement, and minimize the cost and risk involved in
managing a portfolio of cases. (Emphasis supplied)
Third Modeling for Negotiation Management. Computer-based models
can be used directly by parties and mediators in all kinds of negotiations.
All integrated set of such tools provide coherent and effective negotiation
support, including hands-on on instruction in these techniques. A
simulation case of an international joint venture may be used to illustrate
the point.
[Be this as it may,] the organization and management of the legal
function, concern three pointed areas of consideration, thus:
Preventive Lawyering. Planning by lawyers requires special skills that
comprise a major part of the general counsel's responsibilities. They
differ from those of remedial law. Preventive lawyering is concerned with
minimizing the risks of legal trouble and maximizing legal rights for such
legal entities at that time when transactional or similar facts are being
considered and made.

llcd

Managerial Jurisprudence. This is the framework within which are

undertaken those activities of the firm to which legal consequences
attach. It needs to be directly supportive of this nation's evolving
economic and organizational fabric as firms change to stay competitive
in a global, interdependent environment. The practice and theory of "law"
is not adequate today to facilitate the relationships needed in trying to
make a global economy work.
Organization and Functioning of the Corporate Counsel's Office. The
general counsel has emerged in the last decade as one of the most
vibrant subsets of the legal profession. The corporate counsel hear
responsibility for key aspects of the firm's strategic issues, including
structuring its global operations, managing improved relationships with
an increasingly diversified body of employees, managing expanded
liability exposure, creating new and varied interactions with public
decision-makers, coping internally with more complex make or by
decisions.
This whole exercise drives home the thesis that knowing corporate law is
not enough to make one a good general corporate counsel nor to give
him a full sense of how the legal system shapes corporate activities. And
even if the corporate lawyer's aim is not to understand all of the law's
effects on corporate activities, he must, at the very least, also gain a
working knowledge of the management issues if only to be able to grasp
not only the basic legal "constitution" or make-up of the modern
corporation. "Business Star, The Corporate Counsel," April 10, 1991, p.
4).
The challenge for lawyers (both of the bar and the bench) is to have
more than a passing knowledge of financial law affecting each aspect of
their work. Yet, many would admit to ignorance of vast tracts of the
financial law territory. What transpires next is a dilemma of professional
security: Will the lawyer admit ignorance and risk opprobrium?; or will he

feign understanding and risk exposure? (Business Star, "Corporate

Finance law," Jar. 11, 1989, p. 4).

LLpr

Respondent Christian Monsod was nominated by President Corazon C. Aquino

to the position of Chairman of the COMELEC in a letter received by the
Secretariat of the Commission on Appointments on April 25, 1991. Petitioner
opposed the nomination because allegedly Monsod does not possess the
required qualification of having been engaged in the practice of law for at least
ten years.
On June 5, 1991, the Commission on Appointments confirmed the nomination
of Monsod as Chairman of the COMELEC. On June 18, 1991, he took his oath of
office. On the same day, he assumed office as Chairman of the COMELEC.
Challenging the validity of the confirmation by the Commission on Appointments
of Monsod's nomination, petitioner as a citizen and taxpayer, filed the instant
petition for Certiorari and Prohibition praying that said confirmation and the
consequent appointment of Monsod as Chairman of the Commission on
Elections be declared null and void.
Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar
examinations of 1960 with a grade of 86.55%. He has been a dues paying
member of the Integrated Bar of the Philippines since its inception in 1972-73. He
has also been paying his professional license fees as lawyer for more than ten
years. (p. 124, Rollo).

After graduating from the College of Law (U.P.) and having hurdled the
bar, Atty. Monsod worked in the law office of his father. During his stint in the
World Bank Group (1963-1970), Monsod worked as an operations officer for
about two years in Costa Rica and Panama, which involved getting acquainted
with the laws of member-countries, negotiating loans and coordinating legal,
economic, and project work of the Bank. Upon returning to the Philippines in
1970, he worked with the Meralco Group, served as chief executive officer of an
investment bank and subsequently of a business conglomerate, and since 1986,

has rendered services to various companies as a legal and economic consultant

or chief executive officer. As former Secretary-General (1986) and National
Chairman (1987) of NAMFREL. Monsod's work involved being knowledgeable in
election law. He appeared for NAMFREL in its accreditation hearings before the
Comelec. In the field of advocacy, Monsod, in his personal capacity and as
former Co-Chairman of the Bishops Businessmen's Conference for Human
Development, has worked with the under privileged sectors, such as the farmer
and urban poor groups, in initiating, lobbying for and engaging in affirmative
action for the agrarian reform law and lately the urban land reform
bill. Monsod also made use of his legal knowledge as a member of the Davide
Commission, a quasi-judicial body, which conducted numerous hearings (1990)
and as a member of the Constitutional Commission (1986-1987), and Chairman
of its Committee on Accountability of Public Officers, for which he was cited by
the President of the Commission, Justice Cecilia Muoz-Palma for "innumerable
amendments to reconcile government functions with individual freedoms and
public

accountability

and

the

party-list

system

for

the

House

of

Representative." (pp. 128-129 Rollo) (Emphasis supplied)

Just a word about the work of a negotiating team of which Atty. Monsod used to
be a member.
In a loan agreement, for instance, a negotiating panel acts as a team,
and which is adequately constituted to meet the various contingencies
that arise during a negotiation. Besides top officials of the Borrower
concerned, there are the legal officer (such as the legal counsel), the
finance manager, and an operations officer (such as an official involved
in negotiating the contracts) who comprise the members of the team.
(Guillermo V. Soliven, "Loan Negotiating Strategies for Developing
Country Borrowers," Staff Paper No. 2, Central Bank of the Philippines,
Manila, 1982, p. 11). (Emphasis supplied)
After a fashion, the loan agreement is like a country's Constitution; it lays
down the law as far as the loan transaction is concerned. Thus, the meat
of any Loan Agreement can be compartmentalized into five (5)

fundamental parts: (1) business terms; (2) borrower's representation; (3)

conditions of closing; (4) covenants; and (5) events of default. (Ibid., p.
13)
In the same vein, lawyers play an important role in any debt restructuring
program. For aside from performing the tasks of legislative drafting and
legal advising, they score national development policies as key factors in
maintaining their countries' sovereignty. (Condensed from the work
paper, entitled "Wanted: Development Lawyers for Developing Nations,"
submitted by L. Michael Hager, regional legal adviser of the United
States Agency for International Development, during the Session on Law
for the Development of Nations at the Abidjan World Conference in Ivory
Coast, sponsored by the World Peace Through Law Center on August
26-31, 1973). (Emphasis supplied).
Loan concessions and compromises, perhaps even more so than purely
re negotiation policies, demand expertise in the law of contracts, in
legislation and agreement drafting and in re negotiation. Necessarily, a
sovereign lawyer may work with an international business specialist or
an economist in the formulation of a model loan agreement. Debt
restructuring contract agreements contain such a mixture of technical
language that they should be carefully drafted and signed only with the
advise of competent counsel in conjunction with the guidance of
adequate technical support personnel. (SeeInternational Law Aspects of
the Philippine External Debts, an unpublished dissertation, U.S.T.
Graduate School of Law, 1987, p. 321). (Emphasis supplied).
A critical aspect of sovereign debt restructuring/contract construction is
the set of terms and conditions which determines the contractual
remedies for a failure to perform one or more elements of the contract. A
good agreement must not only define the responsibilities of both parties,
but must also state the recourse open to either party when the other fails
to discharge an obligation. For a complete debt restructuring represents
a devotion to that principle which in the ultimate analysis is sine qua

non for foreign loan agreements an adherence to the rule of law in

domestic and international affairs of whose kind U.S. Supreme Court
Justice Oliver Wendell Holmes, Jr. once said: 'They carry no banners,
they beat no drums; but where they are, men learn that bustle and bush
are not the equal of quiet genius and serene mastery.' (See Ricardo J.
Romulo, "The Role of Lawyers in Foreign Investments," Integrated Bar of
the Philippine Journal, Vol. 15, Nos. 3 and 4, Third and Fourth Quarters,
1977, p. 265).

Interpreted in the light of the various definitions of the term "practice of law",
particularly the modern concept of law practice, and taking into consideration the
liberal construction intended by the framers of the Constitution, Atty. Monsod s
past work experiences as a lawyer-economist, a lawyer-manager, a lawyerentrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-legislator
of both the rich and the poor verily more than satisfy the constitutional
requirement that he has been engaged in the practice of law for at least ten
years.
Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA
327, the Court said:

prcd

"Appointment is an essentially discretionary power and must be

performed by the officer in which it is vested according to his best lights,
the only condition being that the appointee should possess the
qualifications required by law. If he does, then the appointment cannot
be faulted on the ground that there are others better qualified who should
have been preferred. This is a political question involving considerations
of wisdom which only the appointing authority can decide." (emphasis
supplied).

No less emphatic was the Court in the case of Central Bank v. Civil Service
Commission, 171 SCRA 744) where it stated:
"It is well-settled that when the appointee is qualified, as in this case, and
all the other legal requirements are satisfied, the Commission has no

alternative but to attest to the appointment in accordance with the Civil

Service Law. The Commission has no authority to revoke an
appointment on the ground that another person is more qualified for a
particular position. It also has no authority to direct the appointment of a
substitute of its choice. To do so would be an encroachment on the
discretion vested upon the appointing authority. An appointment is
essentially within the discretionary power of whomsoever it is vested,
subject to the only condition that the appointee should possess the
qualifications required by law."(Emphasis supplied).

The appointing process in a regular appointment as in the case at bar, consists of

four (4) stages: (1) nomination; (2) confirmation by the Commission on
Appointments; (3) issuance of a commission (in the Philippines, upon submission
by the Commission on Appointments of its certificate of confirmation, the
President issues the permanent appointment; and (4) acceptance e.g., oathtaking, posting of bond, etc. . . . (Lacson v. Romero, No. L-3081, October 14,
1949; Gonzales, Law on Public Officers, p. 200)
The power of the Commission on Appointments to give its consent to the
nomination of Monsod as Chairman of the Commission on Elections is mandated
by Section 1(2) Sub-Article C, Article IX of the Constitution which provides:
"The Chairman and the Commissioners shall be appointed by the
President with the consent of the Commission on Appointments for a
term of seven years without re appointment. Of those first appointed,
three Members shall hold office for seven years, two Members for five
years, and the last Members for three years, without re appointment.
Appointment to any vacancy shall be only for the unexpired term of the
predecessor. In no case shall any Member be appointed or designated in
a temporary or acting capacity."

Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his
definition of the practice of law is the traditional or stereotyped notion of law
practice, as distinguished from the modern concept of the practice of law, which

modern connotation is exactly what was intended by the eminent framers of

the 1987 Constitution. Moreover, Justice Padilla's definition would require
generally a habitual law practice, perhaps practiced two or three times a week
and would outlaw say, law practice once or twice a year for ten consecutive
years. Clearly, this is far from the constitutional intent.
Upon the other hand, the separate opinion of Justice Isagani Cruz states that in
my written opinion, I made use of a definition of law practice which really means
nothing because the definition says that law practice " . . . is what people
ordinarily mean by the practice of law." True I cited the definition but only by way
of sarcasm as evident from my statement that the definition of law practice by
"traditional areas of law practice is essentially tautologous" or defining a phrase
by means of the phrase itself that is being defined.
Justice Cruz goes on to say in substance that since the law covers almost all
situations, most individuals, in making use of the law, or in advising others on
what the law means, are actually practicing law. In that sense, perhaps, but we
should not lose sight of the fact that Mr. Monsod is a lawyer, a member of the
Philippine Bar, who has been practicing law for over ten years. This is different
from the acts of persons practicing law, without first becoming lawyers.

Justice Cruz also says that the Supreme Court can even disqualify an elected
President of the Philippines, say, on the ground that he lacks one or more
qualifications. This matter, I greatly doubt. For one thing, how can an action or
petition be brought against the President? And even assuming that he is indeed
disqualified, how can the action be entertained since he is the incumbent
President?
We now proceed:
The Commission on the basis of evidence submitted during the public hearings
on Monsod's confirmation, implicitly determined that he possessed the necessary
qualifications as required by law. The judgment rendered by the Commission in
the exercise of such an acknowledged power is beyond judicial interference

except only upon a clear showing of a grave abuse of discretion amounting to

lack or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where
such grave abuse of discretion is clearly shown shall the Court interfere with the
Commission's judgment. In the instant case, there is no occasion for the exercise
of the Court's corrective power, since no abuse, much less a grave abuse of
discretion, that would amount to lack or excess of jurisdiction and would warrant
the issuance of the writs prayed, for has been clearly shown.

llcd

Additionally, consider the following:

(1) If the Commission on Appointments rejects a nominee by the President, may
the Supreme Court reverse the Commission, and thus in effect confirm the
appointment? Clearly, the answer is in the negative.
(2) In the same vein, may the Court reject the nominee, whom the Commission
has confirmed? The answer is likewise clear.
(3) If the United States Senate (which is the confirming body in the U.S.
Congress) decides to confirm a Presidential nominee, it would be incredible that
the U.S. Supreme Court would still reverse the U.S. Senate.
Finally, one significant legal maxim is:
"We must interpret not by the letter that killeth, but by the spirit that giveth
life."

Take this hypothetical case of Samson and Delilah. Once, the procurator of
Judea asked Delilah (who was Samson's beloved) for help in capturing Samson.
Delilah agreed on condition that
"No blade shall touch his skin;
No blood shall flow from his veins."

When Samson (his long hair cut by Delilah) was captured, the procurator
placed an iron rod burning white-hot two or three inches away from in front of
Samson's eyes. This blinded the man. Upon hearing of what had happened to
her beloved, Delilah was beside herself with anger, and fuming with righteous

fury, accused the procurator of reneging on his word. The procurator calmly
replied: "Did any blade touch his skin? Did any blood flow from his veins?"
The procurator was clearly relying on the letter, not the spirit of the agreement.
In view of the foregoing, this petition is hereby DISMISSED. SO ORDERED.
Fernan, C.J., Grio-Aquino and Medialdea, JJ ., concur.
Melencio-Herrera, J., concurs in the result.
Feliciano, J., I certify that he voted to dismiss the petition. (Fernan, C.J.).
Sarmiento, J., is on leave.
|||

(Cayetano v. Monsod, G.R. No. 100113, September 03, 1991)

RODOLFO DE LEON, petitioner, vs. COURT OF APPEALS and S

POUSES ESTELITA and AVELINO BATUNGBACAL, respondent
s.
Gil Venerando R. Racho for petitioner.
De Castro & Cagampang Law Offices for private respondents.
SYNOPSIS
On

the

complaint

for

sum of money

filed

by petitioner against

respondent spouses, the trial court issued a partial judgment against Estelita on
May 14, 1996 and a final judgment against Avelino on June 2, 1997. Thereafter,
the spouses filed an appeal from both decisions, which was opposed
by petitionerwho

thereby

did

not

file

an

appellee's

brief.

The Court of Appeals denied the motion to dismiss and admitted the Amended
Appellants' Brief. The issue is the propriety of the appeal which was submitted for
decision without petitioner's brief.

The one judgment that finally disposes of the case on the merits was rendered on
June 2, 1997. Hence, the appeal filed within the reglementary period from
notice of said decision is proper. As nothing indicated that the appeal was
allowed capriciously, the same is ruled proper within the discretionary
power of the appellate court. However, it was an error to require petitioner to file
an appellee's brief in response to the amended appellants' brief which was filed
without leave and approval and beyond the extensions of time granted to
appellants. For failure to file appellee's brief, the Court deemed the same waived
by petitioner.
SYLLABUS
1. JUDGMENT LAW; REMEDIAL LAW; CIVIL PROCEDURE; JUDGMENT;
SEVERAL JUDGMENTS; WHEN PROPER. A several judgment is proper only
when the liability of each party is clearly separable and distinct from that of his
co-parties, such that the claims against each of them could have been the
subject of separate suits, and judgment for or against one of them will not
necessarily affect the other. Where a common cause of action exists against the
defendants, as in actions against solidary debtors, a several judgment is not
proper.

cIEHAC

2. ID.; ID.; ID.; FINAL JUDGMENT; BETWEEN TWO JUDGMENTS RENDERED,

THERE COULD ONLY BE ONE FINAL JUDGMENT; CASE AT BAR. In this
case, private respondents are sued together under a common cause of action
and are sought to be held liable as solidary debtors for a loan contracted
by Estelita. This is the clear import of the allegation in the complaint that the
proceeds of the loan benefited the conjugal partnership. Thus, between the two
judgments rendered by the trial court, there could only be one judgment that
finally disposes of the case on the merits. Receipt of notice of this final judgment
marks the point when the reglementary period is to begin running. In this case,
that judgment is the decision rendered by the trial court on June 2, 1997 and it is
only from the date of notice of this decision that the reglementary period began to

run. The partial judgment dated May 14, 1996 was rendered only with respect to
one issue in the case and is not the final and appealable order or judgment that
finally disposes of the case on the merits. It must, therefore, only be appealed
together with the decision dated June 2, 1997. A final order is that which gives an
end to the litigation. When the order or judgment does not dispose of the case
completely but leaves something to be done upon the merits, it is merely
interlocutory.

Quite

obviously,

the

partial

judgment

ordering Estelita to

pay petitioner is an interlocutory order because it leaves other things for the
trial court to do and does not decide with finality the rights and obligations of the
parties. Specifically, at the time the partial judgment was rendered, there
remained other issues including whether the husband Avelino had any liability
under Article 121 of the Family Code. However, as the partial judgment
disposed of one ofthe issues involved in the case, it is to be taken in conjunction
with the decision dated June 2, 1997. Together, these two issuances form one
integrated decision.
3. ID.;

ID.;

APPEAL;

PERIOD

COMMENCES

FROM

THE

TIME

COUNSEL OF PARTY RECEIVES A COPY OF DECISION. The question now

is when the period to appeal should actually commence, from June 6, 1997,
as petitioner contends;

or

from

June

10,

1997,

as

private

respondent Estelita Batungbacalclaims? We hold that the period began to run on

June 6, 1997 when counsel for private respondents received a copy of the
decision dated June 2, 1997. When a party is represented by counsel of record,
service of orders and notices must be made upon said attorney and notice to the
client and to any other lawyer, not the counsel of record, is not notice in law. The
exception to this rule is when service upon the party himself has been ordered by
thecourt.

In

this

case,

substitution of counsel

it
or

does

not

that

appear
service

that

there
upon

was

any

private

respondent Estelita Batungbacal had been specifically ordered by the trial court;
hence, the counsel of record for the private respondents is presumed to be their
counsel on appeal and the only one authorized to receive court processes.
Notice of the judgment upon such counsel, therefore, was notice to the clients for
all legal intents and purposes.

TAEcSC

4. ID.;

ID.;

PROCEDURE

IN COURT OF APPEALS;

GROUNDS

FOR

DISMISSAL OF APPEAL ARE DISCRETIONARY; CASE AT BAR. Worth

stressing, the grounds for dismissal of an appeal under Section 1 of Rule
50 of the Rules of Court are discretionary upon the Court of Appeals. This can be
seen from the very wording of the Rules which uses the word 'may'
instead of 'shall.' This Court has held in Philippine National Bank vs. Philippine
Milling Co., Inc. that Rule 50, Section 1 which provides specific grounds for
dismissal of appeal manifestly "confers a power and does not impose a duty."
"What is more, it is directory, not mandatory." With the exception of Sec. 1 (b), the
grounds for the dismissal of an appeal are directory and not mandatory, and it is
not the ministerial duty of the court to dismiss the appeal. The discretion,
however, must be a sound one to be exercised in accordance with the
tenets ofjustice and fair play having in mind the circumstances obtaining in each
case.

The Court of Appeals rightly

exercised

its

discretion

when,

in

denyingpetitioner's motion to dismiss, it ruled that the citations contained in the

appellants' brief were in substantial compliance with the rules. Where the
citations

found

in

the

appellants'

brief

could

sufficiently

enable

the

appellate court to locate expeditiously the portions of the record referred to, there
is substantial compliance with the requirements of Section 13(c) and (d), Rule
46 of the

Rules of Court.

Such

determination

was

properly

within

the

appellate court's discretion. Nothing in the records indicate that it was exercised
capriciously, whimsically, or with a view of permitting injury upon a party litigant.
For the same reasons, we hold that the respondent Court of Appeals also did not
err when it did not dismiss the appeal based on the allegation that appellants'
brief failed to comply with the internal rules of said court.
5. ID.; ID.; ID.; WHERE AMENDED BRIEF WAS FILED BEYOND THE LEGAL
PERIOD. The Court of Appeals erred in

requiring petitioner to

file the

appellee's brief in response to the amended appellants' brief. Note that the
amended brief was filed without the proper motion for leave to do so and
corresponding order from the respondent court. Even more significant, it was filed
beyond the extensions of time granted to appellants. The discretion in accepting

late briefs conferred upon respondent court which this Court applied in the
cases of Maqui vs. CA and Vda. de Haberer vs. CA, finds no application under
the present circumstances because, unlike in these two cases, here no valid
reason was advanced for the late filing of the amended brief. While the amended
brief might contain no substantial and prejudicial changes, it was error for the
respondent court to

accept

the

amended

brief

as

filed

and

then

require petitioner to file appellee's brief because admittedly the amended brief
was filed beyond August 31, 1998, the last period ofextension granted to
private respondents.
6. ID.; ID.; ID.; PROPER REMEDY IN DENIAL OF MOTION TO DISMISS IS TO
FILE APPELLEE'S BRIEF AND PROCEED WITH THE APPEAL. On the
second issue, we hold that the Court of Appeals did not commit grave
abuse of discretion in considering the appeal submitted for decision. The proper
remedy in case of denial of the motion to dismiss is to file the appellee's brief and
proceed with the appeal. Instead, petitioner opted to file a motion for
reconsideration which, unfortunately, was pro forma. All the grounds raised
therein

have

been

discussed

in

the

first

resolution of the

respondent Courtof Appeals. There is no new ground raised that might warrant
reversal of the resolution. A cursory perusal of the motion would readily show that
it was a near verbatim repetition of the grounds stated in the motion to dismiss;
hence, the filing of the motion for reconsideration did not suspend the period for
filing the appellee's brief. Petitioner was therefore properly deemed to have
waived his right to file appellee's brief.

DECISION

QUISUMBING, J :
p

Before us is a special civil action for certiorari and prohibition under Rule
65 of the Rules of Court. It seeks to annul and set aside the resolution 1 dated
January

13,

1999 of the Court of Appeals,

in

CA-G.R.

CV

No.

57989,

denying petitioner's motion (a) to dismiss the appeals of private respondents, and
(b) to suspend the period to file appellee's brief. Also assailed is the CA
resolution 2 dated April 19, 1999, denying petitioner's motion for reconsideration.
The antecedent facts are as follows:
On

March

11,

1996, petitioner Rodolfo de Leon filed

with

the

Regional

Trial Court of Bataan, Branch 3, a complaint 3 for a sum of money plus damages,
with

prayer

for

preliminary

attachment,

against

herein

private respondents Avelino and Estelita Batungbacal. The complaint averred that
private

respondent Estelita Batungbacal executed

promissory

note 4 in

favor of herein petitioner for her P500,000 loan with stipulated interest at 5
percent monthly. The loan and interest remained unpaid allegedly because the
check issued by Estelita was dishonored. Private respondents filed an answer
with counterclaim. Estelita admitted the loan obligation, but Avelino denied liability
on the ground that his wife was not the designated administrator and therefore
had no authority to bind the conjugal partnership. Avelino further averred that his
wife contracted the debt without his knowledge and consent.

Based on Estelita's admission, petitioner filed a motion for partial judgment

against Estelita, which the trial court granted in an order 5 dated May 14, 1996:
WHEREFORE, the Motion for Partial Judgment on the Pleadings is
hereby granted in accordance with Sec. 4 of Rule 36, Rules of Court. As
prayed for, judgment is hereby rendered against Estelita Q. Batungbacal,
ordering her to pay plaintiff Rodolfo de Leon the principal amount of the
loan obligationof P500,000.00 plus the stipulated interest which has
accrued thereon at 5% per month since May 1995 until now, plus interest
at the legal rate on said accrued interest from date of judicial demand
until the obligation is fully paid.
SO ORDERED.

Counsel for private respondent spouses received a copy of the partial judgment
on May 21, 1996, but no appeal was taken therefrom. Thus, petitionerfiled a
motion for execution of said judgment on June 6, 1996. Counsel for
private respondents was furnished a copy of the motion on the same date. As
private respondents interposed

no

objection,

writ of execution

was

correspondingly issued. The sheriff then proceeded to execute the writ and
partially

satisfied

the

judgment

award

against

the

paraphernal

property of Estelita and the conjugal properties of the private respondents with
due notice to the latter and their counsel. Again, private respondents interposed
no objection.
Pre-trial was held and trial proceeded on two main issues: (1) whether the loan
was secured with the knowledge and consent of the husband and whether the
same redounded to the benefit of the conjugal partnership; and (2) whether the
capital of the husband would be liable if the conjugal assets or the paraphernal
property of the wife were insufficient to satisfy the loan obligation. On June 2,
1997,

the

trial court rendered

judgment 6 ordering

private

respondent Avelino Batungbacal to pay the amount of the loan plus interest and
other amounts in accordance with Article 121 of the Family Code.
Counsel for private respondent spouses received a copy of the decision on June
6, 1997. Avelino through counsel, filed a notice of appeal 7 on June 19, 1997. In a
notice of appearance 8 dated
solely of Estelita,

new

June
counsel

25,

1997

appeared

bearing
in

the

conformity

collaboration

with

the

counselof record for the private respondents. On the same date, Estelita through
said new counsel, served a notice that she is appealing both decisions
promulgated on May 14, 1996, and June 2, 1997, to the Court of Appeals.
However, the trial court, in an order 9 dated July 7, 1997 denied the
notice ofappeal 10 filed by Estelita on the ground that said notice was filed beyond
the reglementary period to appeal.
Private respondents'

appeal

was

docketed

with

the

respondent Court of Appeals as CA-G.R. CV No. 57989. Petitioner then filed with
the Court of Appealsa Motion to Dismiss the Appeal with Motion to Suspend

period to file Appellee's Briefs 11 on October 21, 1998. Petitioner based his
motion to dismiss on the following grounds: (1) that the statement of the case as
well as the statement of the facts in the appellants' brief do not have page
references to the record, and that the authorities relied upon in the arguments are
not cited by the page of the report at which the case begins and the page of the
report on which the citation is found; (2) that no copy of the appealed
decision of the lower court was attached to the appellants' brief, in violation of the
Internal Rules of the Court of Appeals; (3) that private respondents furnished only
one copy of the appellants' brief to the petitioner, also in violation ofthe
Rules of Court; (4) that the decision promulgated against Estelita on May 14,
1996 is no longer appealable; and (5) that the notice of appeal filed on June 25,
1996 by Estelita concerning the decision of the trial court against Avelino was
filed beyond the reglementary period to appeal.

12

The motion also prayed that

the period for filing the appellee's brief be suspended in view of the
pendency of the motion to dismiss. 13
Private respondents, in their opposition, 14 insisted that the statements of the
case as well as the statement of facts in their brief contained page references to
the record,

and

that Estelita had

seasonably

filed

her

appeal. Private

respondent spouses also stated that they had filed an Amended Appellants'
Brief 15 on November 27, 1998 and that two copies thereof had been served
on petitioner together with copies of the trial court's decisions.
On

January

13,

1999,

the Court of Appeals issued

the

assailed

resolution 16 denying petitioner's motion to dismiss and virtually admitting the

Amended Appellants' Brief as follows:
As submitted by appellants, they adopted pertinent portions of the
appealed Decision in the Statement of the Case, indicated specific
pages in the appealed decision where the quoted portions are found. In
the bottom of page 2 of the brief, is the quoted portions of the decision,
referring to pages 1 and 2 thereof. On page 3 of the brief is the
dispositive portion, taken on page 11 of the decision. The rest of the
narration in the Statement of the Case are the specific dates of the

pleadings, orders, and portions of the decision citing the page references
where they are found.
Two (2) copies of the Amended Brief were served upon appellee with the
appealed Decision attached as Annex "A", and "B".
Appellant Estellita Batungbacal explained that her appeal was filed on
time. She cited Guevarra, et al. vs. Court of Appeals, et al., L-49017 and
49024, that a partial judgment may be appealed only together with the
judgment in the main case. She personally received a copy of the main
Decision, dated June 2, 1997 on June 10, 1997, and filed her
notice of appeal dated June 25, 1995 (sic) sent by registered mail on
even date, per Registry Receipt No. 2618, attached as Annex "C" hereof,
thereby showing that the notice of appeal was filed within 15 days from
receipt of the Decision appealed from. At any rate, the merit of appellee's
contention that appellant Estellita Batungbacal can no longer appeal
from the decision may be resolved after the case is considered ready for
study and report.
WHEREFORE, the motion to dismiss is hereby DENIED, and appellee is
required to file his appellee's brief within forty-five (45) days from receipt
hereof.
SO ORDERED.

On January 22, 1999, petitioner filed a Motion for Reconsideration

17

of the

aforesaid resolution but said motion was denied by the Court of Appeals in a
resolution 18 dated April 19, 1999, the pertinent portion of which reads as follows:
The resolution promulgated on January 13, 1999 required appellee to file
his appellee's brief within forty-five (45) days from receipt of that
resolution, or up to March 4, 1999. Up to this date no appellee's brief has
been submitted.
WHEREFORE, the appeal by appellants is deemed submitted for
decision without the benefit of appellee's brief, and the records of this

case is hereby transmitted to the Raffle Committee, for re-raffle, for study
and report.
SO ORDERED.

Hence, this Petition for Certiorari and Prohibition 19 wherein petitioner contends
that respondent Court of Appeals acted:
(1) WITHOUT

JURISDICTION

IN

ENTERTAINING

THE

APPEAL OF PRIVATE
RESPONDENT ESTELITA BATUNGBACAL;
(2) WITH

GRAVE

ABUSE OF DISCRETION

DISREGARD OF THE

EXPRESS

AND

IN

MANDATORY

REQUIREMENTS OF THE RULES AS WELL AS AGAINST

SETTLED

JURISPRUDENCE

THE PETITIONER'S

WHEN

MOTION

TO

IT

DENIED

DISMISS

THE

APPEAL OF THE PRIVATE RESPONDENT SPOUSES;

(3) WITH GRAVE ABUSE OF DISCRETION AND IN GRAVE
VIOLATION OF DUE PROCESS OF LAW IN ADMITTING
THE

AMENDED

APPELLANT'S

PRIVATE RESPONDENTS AND

THE PETITIONER AS

BRIEF

FILED

IN

REQUIRING

APPELLEE

TO

FILE

BY
HIS

APPELLEE'S BRIEF;
(4) WITHOUT DUE PROCESS OF LAW WHEN IT RESOLVED TO
HAVE

THE

APPEAL OF THE

PRIVATE RESPONDENTS DEEMED

DECISION

WITHOUT

APPELLANT

SUBMITTED

FOR

BENEFIT OF APPELLEE'S

BRIEF. . . . 20
Simply put, the following are the issues presented before this Court for resolution:
(1) whether or not the appellate court erred in taking cognizance ofthe appeal;
and (2) whether or not the appellate court erred or committed grave

abuse of discretion when it considered the appeal as submitted for decision

without petitioner's brief.
On the first issue, petitioner contends that the decisions of the trial court in Civil
Case No. 6480 promulgated on May 14, 1996 and June 2, 1997 had become
final and executory as to private respondent Estelita Batungbacal. This is
because Estelita never appealed the partial judgment promulgated on May 14,
1996. In fact, there has been a partial execution of said judgment with notice to
and without objection from private respondent spouses. As regards the decision
dated June 2, 1997, petitioner contends that the same had become final for
failure to file the notice of appeal within 15 days, counted from the time
counsel of record for private respondent spouses received a copy on June 6,
1997

and

not

from

the

time Estelita received

copy

on

June

10,

1997. Petitioner points to Section 2 of Rule 13 of the Rules of Court and argues
that since the trial court never ordered that service of the judgment be made
upon Estelita, she was not entitled to service of the judgment. The fact that she
received a copy of the judgment separately from her counsel cannot prejudice the
legal consequences arising out of prior receipt of copy of the decision by her
counsel. It was thus clear error for the Courtof Appeals to accept Estelita's
argument that the reglementary period commenced not from receipt of a
copy of the decision by counsel of record but from the time she received a
copy of the

decision.

The

appeal

having

been

filed

out of time,

the Court of Appeals did not have jurisdiction to entertain the appeal of Estelita.
Petitioner also assails the appellants' brief for certain formal defects. As pointed
out in his motion to dismiss filed before the public respondent, there are no page
references to the record in the statements of the case and of the facts in the
appellants' brief submitted by private respondents. Petitionerasserts that while
there are many pleadings and orders mentioned in said statements, only the
decision dated June 2, 1997 is cited, and the citation is limited only to the
particular page or pages in said decision where the citation or quotation is taken,
without any reference to the pages in the record where the decision can be

found. Neither is there reference to the pages in the record where the particular
cited or quoted portions of the decision can be found.

Petitioner likewise alleges that the authorities relied upon in the appellants'
brief of private respondents are also not cited by the page on which the citation is
found, as required in Sec. 13 (f) of Rule 44 of the Rules of Court. Page
references to the record are also required in Section 13, paragraphs (c), (d) and
(f) of Rule 44 and absence thereof is a ground for dismissal of the appeal,
pursuant to Sec. 1 (f) of Rule 50 of the Rules of Court. Petitioner also harps on
the

failure of private respondents to

furnish petitioner with

two

copies of the

original appellants' brief, to submit proof of service of two copiesof the brief on
the appellee, and to furnish the petitioner with two copies of the amended
appellants' brief as required by the Rules of Court. Additionally,petitioner asserts
that the failure of private respondents to append copies of the appealed decisions
to

their

appellants'

brief

constitutes

violation ofthe

Internal

Rules of the Court of Appeals and is likewise a ground for dismissal under
Section 1 of Rule 50 of the Rules of Court.
Lastly, petitioner contends that the virtual admission into the record by the
respondent court of the

amended

appellants'

brief of the

privaterespondents under the resolution dated January 13, 1999 and its
corresponding action to require the petitioner to respond thereto, constitute grave
abuse of discretion and blatant disregard of due process of law because the
amended brief was filed without leave of court.
Private respondents, for their part, argue that the resolutions being assailed
by petitioner are interlocutory in character because the Court of Appeals still has
to decide the appeal on the merits; hence, certiorari does not lie in his favor.
Private respondents allege that petitioner has another adequate and speedy
remedy, i.e., to file his brief raising all issues before the Court of Appeals. Once
the appeal is resolved on the merits, all proper issues may be elevated to the
Supreme Court. An order denying a motion to dismiss being merely interlocutory,

it cannot be the basis of a petition for certiorari. The proper remedy is to appeal in
due course after the case is decided on the merits.
We find the petition devoid of merit.
On the first issue, we find that the Court of Appeals did not act without jurisdiction
in entertaining the appeal filed by private respondent EstelitaBatungbacal.
Contrary to petitioner's apparent position, the judgments rendered by the
trial court in this case are not several judgments under the Rulesof Court so that
there would be multiple periods of finality.
A several judgment is proper only when the liability of each party is clearly
separable and distinct from that of his co-parties, such that the claims against
each of them could have been the subject of separate suits, and judgment for or
against one of them will not necessarily affect the other.

21

Where a common

cause of action exists against the defendants, as in actions against solidary

debtors, a several judgment is not proper. In this case, privaterespondents are
sued together under a common cause of action and are sought to be held liable
as solidary debtors for a loan contracted by Estelita. This is the clear
import of the allegation in the complaint that the proceeds of the loan benefited
the conjugal partnership.
Thus, between the two judgments rendered by the trial court, there could only be
one

judgment

that

finally

disposes of the

case

on

the

merits.

Receipt ofnotice of this final judgment marks the point when the reglementary
period is to begin running. In this case, that judgment is the decision

22

rendered

by the trial court on June 2, 1997 and it is only from the date of notice of this
decision that the reglementary period began to run. The partial judgment dated
May 14, 1996 was rendered only with respect to one issue in the case and is not
the final and appealable order or judgment that finally disposes ofthe case on the
merits. 23 It must, therefore, only be appealed together with the decision dated
June 2, 1997.
A final order is that which gives an end to the litigation.

24

When the order or

judgment does not dispose of the case completely but leaves something to be

done upon the merits, it is merely interlocutory.

25

Quite obviously, the partial

judgment ordering Estelita to pay petitioner is an interlocutory order because it

leaves other things for the trial court to do and does not decide with finality the
rights and obligations of the parties. Specifically, at the time the partial judgment
was

rendered,

there

remained

other

issues

including

whether

the

husband Avelino had any liability under Article 121 of the Family Code. However,
as the partial judgment disposed of one of the issues involved in the case, it is to
be taken in conjunction with the decision dated June 2, 1997. Together, these two
issuances form one integrated decision.
The question now is when the period to appeal should actually commence, from
June 6, 1997, as petitioner contends; or from June 10, 1997, as private
respondent Estelita Batungbacal claims? We hold that the period began to run on
June 6, 1997 when counsel for private respondents received a copy ofthe
decision dated June 2, 1997. When a party is represented by counsel of record,
service of orders and notices must be made upon said attorney and notice to the
client and to any other lawyer, not the counsel of record, is not notice in
law. 26 The exception to this rule is when service upon the party himself has been
ordered by the court. 27 In this case, it does not appear that there was any
substitution of counsel

or

that

service

upon

private

respondent Estelita Batungbacal had been specifically ordered by the trial court;
hence, the counsel of record for the private respondents is presumed to be their
counsel on appeal and the only one authorized to receive court processes.
Notice of the judgment upon such counsel, therefore, was notice to the clients for
all legal intents and purposes.
Private respondents' appeal had been taken within the reglementary period
since Avelino Batungbacal had filed a notice of appeal on June 19, 1997 or 13
days

from

their

counsel's

receipt of the

decision

on

June

6,

1997.

Respondent spouses having been jointly sued under a common cause of action,
an appeal made by the husband inures to the benefit of the wife. The
notice of appeal filed by Estelita was a superfluity, the appeal having been
perfected earlier by her husband.

We come now to petitioner's contention that the appellants' brief suffers from fatal
defects.
Worth stressing, the grounds for dismissal of an appeal under Section 1 of Rule
50 28 of the Rules of Court are discretionary upon the Court of Appeals. This can
be seen from the very wording of the Rules which uses the word 'may'
instead of 'shall.' This Court has held in Philippine National Bank vs. Philippine
Milling Co., Inc. 29 that Rule 50, Section 1 which provides specific grounds for
dismissal of appeal manifestly "confers a power and does not impose a duty."
"What is more, it is directory, not mandatory."

30

With the exception of Sec. 1(b),

the grounds for the dismissal of an appeal are directory and not mandatory, and it
is not the ministerial duty of the court to dismiss the appeal. 31 The discretion,
however, must be a sound one to be exercised in accordance with the
tenets of justice and fair play having in mind the circumstances obtaining in each
case. 32
The Court of Appeals rightly exercised its discretion when, in denying petitioner's
motion to dismiss, it ruled that the citations contained in the appellants' brief were
in substantial compliance with the rules. Where the citations found in the
appellants'

brief

could

sufficiently

enable

the

appellatecourt to

locate

expeditiously the portions of the record referred to, there is substantial

compliance with the requirements of Section 13(c) and (d), Rule 46 of the
Rules of Court. Such determination was properly within the appellate court's
discretion. Nothing in the records indicate that it was exercised capriciously,
whimsically, or with a view of permitting injury upon a party litigant. For the same
reasons, we hold that the respondent Court of Appealsalso did not err when it did
not dismiss the appeal based on the allegation that appellants' brief failed to
comply with the internal rules of said court.
However, the Court of Appeals erred in requiring petitioner to file the appellee's
brief in response to the amended appellants' brief. Note that the amended brief
was filed without the proper motion for leave to do so and corresponding order
from the respondent court. Even more significant, it was filed beyond the
extensions of time granted to appellants. The discretion in accepting late briefs

conferred

upon

respondent court which

this Courtapplied

in

the

cases of Maqui vs. CA 33 and Vda. de Haberer vs. CA, 34 finds no application
under the present circumstances because, unlike in these two cases, here no
valid reason was advanced for the late filing of the amended brief. While the
amended brief 35 might contain no substantial and prejudicial changes, it was
error for the respondent court to accept the amended brief as filed and then
require petitioner to file appellee's brief because admittedly the amended brief
was filed beyond August 31, 1998, the last period of extension granted to
private respondents.
On the second issue, we hold that the Court of Appeals did not commit grave
abuse of discretion in considering the appeal submitted for decision. The proper
remedy in case of denial of the motion to dismiss is to file the appellee's brief and
proceed with the appeal. Instead, petitioner opted to file a motion for
reconsideration which, unfortunately, was pro forma. All the grounds raised
therein

have

been

discussed

in

the

first

resolution of the

respondent Court of Appeals. There is no new ground raised that might warrant
reversal of the resolution. A cursory perusal of the motion would readily show that
it was a near verbatim repetition of the grounds stated in the motion to dismiss;
hence, the filing of the motion for reconsideration did not suspend the period for
filing the appellee's brief. Petitioner was therefore properly deemed to have
waived his right to file appellee's brief.

aEHAIS

WHEREFORE, the petition is DENIED. The resolutions dated January 13, 1999
and April 19, 1999 of the Court of Appeals in CA-G.R. CV No. 57989 are
AFFIRMED, and the Court of Appeals is ordered to proceed with the appeal and
decide the case with dispatch. No pronouncement as to costs.
SO ORDERED.
|||

(De Leon v. Court of Appeals, G.R. No. 138884, June 06, 2002)

ROBERTO SORIANO, complainant, vs.

Atty.

MANUEL DIZON, respondent.

Villanueva Delfin Cabrera & Vidal Law Offices for complainant.
SYLLABUS
1.LEGAL ETHICS; DISCIPLINE OF LAWYERS; CONVICTION FOR A CRIME
INVOLVING MORAL TURPITUDE IS A GROUND FOR DISBARMENT OR
SUSPENSION; RATIONALE. Under Section 27 of Rule 138 of the Rules of
Court, conviction for a crime involving moral turpitude is a ground for disbarment
or suspension. By such conviction, a lawyer is deemed to have become unfit to
uphold the administration of justice and to be no longer possessed of good moral
character. . . . Conviction for a crime involving moral turpitude may relate, not to
the exercise of the profession of lawyers, but certainly to their good moral
character. Where their misconduct outside of their professional dealings is so
gross as to show them morally unfit for their office and unworthy of the privileges
conferred upon them by their license and the law, the court may be justified in
suspending or removing them from that office. We also adopt the IBP's finding
that respondent displayed an utter lack of good moral character, which is an
essential qualification for the privilege to enter into the practice of law. Good
moral character includes at least common honesty.
2.ID.; ID.; ID.; DISBARMENT JUSTIFIED IN CASE AT BAR. The actions of
respondent erode rather than enhance public perception of the legal profession.
They constitute moral turpitude for which he should be disbarred. "Law is a noble
profession, and the privilege to practice it is bestowed only upon individuals who
are competent intellectually, academically and, equally important, morally.
Because they are vanguards of the law and the legal system, lawyers must at all
times conduct themselves, especially in their dealings with their clients and the

public at large, with honesty and integrity in a manner beyond reproach." The
foregoing abhorrent acts of respondent are not merely dishonorable; they reveal
a basic moral flaw. Considering the depravity of the offense he committed, we
find the penalty recommended by the IBP proper and commensurate. . . . We
stress that membership in the legal profession is a privilege demanding a high
degree of good moral character, not only as a condition precedent to admission,
but also as a continuing requirement for the practice of law. Sadly, herein
respondent has fallen short of the exacting standards expected of him as a
vanguard of the legal profession. In sum, when lawyers are convicted of
frustrated homicide, the attending circumstances not the mere fact of their
conviction would demonstrate their fitness to remain in the legal profession. In
the present case, the appalling vindictiveness, treachery, and brazen dishonesty
of respondent clearly show his unworthiness to continue as a member of the bar.
3.ID.; ID.; MORAL TURPITUDE; DEFINED. Moral turpitude has been defined
as "everything which is done contrary to justice, modesty, or good morals; an act
of baseness, vileness or depravity in the private and social duties which a man
owes his fellowmen, or to society in general, contrary to justice, honesty,
modesty, or good morals."
4.ID.; ID.; ID.; WHEN THE TOTALITY OF FACTS BEARS THE EARMARKS OF
MORAL TURPITUDE; EXEMPLIFIED IN CASE AT BAR. The totality of the
facts unmistakably bears the earmarks of moral turpitude. By his conduct,
respondent revealed his extreme arrogance and feeling of self-importance. As it
were, he acted like a god on the road, who deserved to be venerated and never
to be slighted. Clearly, his inordinate reaction to a simple traffic incident reflected
poorly on his fitness to be a member of the legal profession. His overreaction also
evinced vindictiveness, which was definitely an undesirable trait in any individual,
more so in a lawyer. In the tenacity with which he pursued complainant, we see
not the persistence of a person who has been grievously wronged, but the
obstinacy of one trying to assert a false sense of superiority and to exact
revenge.

5.ID.; ID.; LAWYER'S POSSESSION OF AN UNLICENSED FIREARM IS

CONSIDERED TRANSGRESSION OF THE CODE OF PROFESSIONAL
RESPONSIBILITY. It is also glaringly clear that respondent seriously
transgressed Canon 1 of the Code of Professional Responsibility through his
illegal possession of an unlicensed firearm and his unjust refusal to satisfy his
civil liabilities. He has thus brazenly violated the law and disobeyed the lawful
orders of the courts. We remind him that, both in his attorney's oath and in the
Code of Professional Responsibility, he bound himself to "obey the laws of the
land."
6.ID.; ID.; LAWYERS MUST NOT MISLEAD THE COURT OR ALLOW IT TO BE
MISLED BY ANY ARTIFICE. Lawyers must be ministers of truth. No moral
qualification for bar membership is more important than truthfulness. The
rigorous ethics of the profession places a premium on honesty and condemns
duplicitous behavior. Hence, lawyers must not mislead the court or allow it to be
misled by any artifice. In all their dealings, they are expected to act in good faith.
7.ID.; ID.; DISBARMENT; PURPOSE OF DISBARMENT PROCEEDINGS,
EXPLAINED. The purpose of a proceeding for disbarment is to protect the
administration of justice by requiring that those who exercise this important
function be competent, honorable and reliable lawyers in whom courts and
clients may repose confidence. Thus, whenever a clear case of degenerate and
vile behavior disturbs that vital yet fragile confidence, we shall not hesitate to rid
our profession of odious members.

DECISION

PER CURIAM :
p

Before us is a Complaint-Affidavit 1 for the disbarment of Atty. Manuel Dizon, filed

by Roberto Soriano with the Commission on Bar Discipline (CBD) of the
Integrated Bar of the Philippines (IBP). Complainant alleges that the conviction of

respondent for a crime involving moral turpitude, together with the circumstances
surrounding the conviction, violates Canon 1 of Rule 1.01 of the Code of
Professional Responsibility; 2 and constitutes sufficient ground for his disbarment
under Section 27 of Rule 138 of the Rules of Court. 3
Because of the failure of Atty. Dizon to submit his Answer to the Complaint, the
CBD issued a Notice dated May 20, 2004, informing him that he was in default,
and that an ex-parte hearing had been scheduled for June 11, 2004. 4 After that
hearing, complainant manifested that he was submitting the case on the basis of
the Complaint and its attachments. 5 Accordingly, the CBD directed him to file his
Position Paper, which he did on July 27, 2004. 6Afterwards, the case was
deemed submitted for resolution.
On December 6, 2004, Commissioner Teresita J. Herbosa rendered her Report
and Recommendation, which was later adopted and approved by the IBP Board
of Governors in its Resolution No. XVI-2005-84 dated March 12, 2005.
In his Complaint-Affidavit, Soriano alleged that respondent had violated Canon 1,
Rule 1.01 of the Code of Professional Responsibility; and that the conviction of
the latter for frustrated homicide, 7 which involved moral turpitude, should result in
his disbarment.
The facts leading to respondent's conviction were summarized by Branch 60 of
the Regional Trial Court of Baguio City in this wise:
". . . . The accused was driving his brown Toyota Corolla and was on his
way home after gassing up in preparation for his trip to Concepcion,
Tarlac with his wife. Along Abanao Street, a taxi driver overtook the car
driven by the accused not knowing that the driver of the car he had
overtaken is not just someone, but a lawyer and a prominent member of
the Baguio community who was under the influence of liquor. Incensed,
the accused tailed the taxi driver until the latter stopped to make a turn at
[the] Chugum and Carino Streets. The accused also stopped his car,
berated the taxi driver and held him by his shirt. To stop the aggression,
the taxi driver forced open his door causing the accused to fall to the

ground. The taxi driver knew that the accused had been drinking
because he smelled of liquor. Taking pity on the accused who looked
elderly, the taxi driver got out of his car to help him get up. But the
accused, by now enraged, stood up immediately and was about to deal
the taxi driver a fist blow when the latter boxed him on the chest instead.
The accused fell down a second time, got up again and was about to box
the taxi driver but the latter caught his fist and turned his arm around.
The taxi driver held on to the accused until he could be pacified and then
released him. The accused went back to his car and got his revolver
making sure that the handle was wrapped in a handkerchief. The taxi
driver was on his way back to his vehicle when he noticed the
eyeglasses of the accused on the ground. He picked them up intending
to return them to the accused. But as he was handing the same to the
accused, he was met by the barrel of the gun held by the accused who
fired and shot him hitting him on the neck. He fell on the thigh of the
accused so the latter pushed him out and sped off. The incident was
witnessed by Antonio Billanes whose testimony corroborated that of the
taxi driver, the complainant in this case, Roberto Soriano." 8

It was the prosecution witness, Antonio Billanes, who came to the aid
of Soriano and brought the latter to the hospital. Because the bullet had lacerated
the carotid artery on the left side of his neck, 9 complainant would have surely
died of hemorrhage if he had not received timely medical assistance, according
to the attending surgeon, Dr. Francisco Hernandez, Jr. Soriano sustained a spinal
cord injury, which caused paralysis on the left part of his body and disabled him
for his job as a taxi driver.

AEIDTc

The trial court promulgated its Decision dated November 29, 2001. On January
18, 2002, respondent filed an application for probation, which was granted by the
court on several conditions. These included satisfaction of "the civil liabilities
imposed by [the] court in favor of the offended party, Roberto Soriano." 10

According to the unrefuted statements of complainant, Atty. Dizon, who has yet to
comply with this particular undertaking, even appealed the civil liability to the
Court of Appeals. 11
In her Report and Recommendation, Commissioner Herbosa recommended that
respondent be disbarred from the practice of law for having been convicted of a
crime involving moral turpitude.
The commissioner found that respondent had not only been convicted of such
crime, but that the latter also exhibited an obvious lack of good moral character,
based on the following facts:
"1.He was under the influence of liquor while driving his car;
"2.He reacted violently and attempted to assault Complainant only
because the latter, driving a taxi, had overtaken him;
"3.Complainant having been able to ward off his attempted assault,
Respondent went back to his car, got a gun, wrapped the same
with a handkerchief and shot Complainant[,] who was unarmed;
"4.When Complainant fell on him, Respondent simply pushed him out
and fled;
"5.Despite

positive

identification

and

overwhelming

evidence,

Respondent denied that he had shot Complainant;

"6.Apart from [his] denial, Respondent also lied when he claimed that he
was the one mauled by Complainant and two unidentified
persons; and,
"7.Although he has been placed on probation, Respondent has[,] to
date[,] not yet satisfied his civil liabilities to Complainant."

12

On July 8, 2005, the Supreme Court received for its final action the IBP
Resolution adopting the Report and Recommendation of the Investigating
Commissioner.

We agree with the findings and recommendations of Commissioner Herbosa, as

approved and adopted by the IBP Board of Governors.
Under Section 27 of Rule 138 of the Rules of Court, conviction for a crime
involving moral turpitude is a ground for disbarment or suspension. By such
conviction, a lawyer is deemed to have become unfit to uphold the administration
of justice and to be no longer possessed of good moral character. 13 In the instant
case, respondent has been found guilty; and he stands convicted, by final
judgment, of frustrated homicide. Since his conviction has already been
established and is no longer open to question, the only issues that remain to be
determined are as follows: 1) whether his crime of frustrated homicide involves
moral turpitude, and 2) whether his guilt warrants disbarment.
Moral turpitude has been defined as "everything which is done contrary to justice,
modesty, or good morals; an act of baseness, vileness or depravity in the private
and social duties which a man owes his fellowmen, or to society in general,
contrary to justice, honesty, modesty, or good morals." 14
The question of whether the crime of homicide involves moral turpitude has been
discussed in International Rice Research Institute (IRRI) v. NLRC, 15 a labor case
concerning an employee who was dismissed on the basis of his conviction for
homicide. Considering the particular circumstances surrounding the commission
of the crime, this Court rejected the employer's contention and held that homicide
in that case did not involve moral turpitude. (If it did, the crime would have been
violative of the IRRI's Employment Policy Regulations and indeed a ground for
dismissal.) The Court explained that, having disregarded the attendant
circumstances, the employer made a pronouncement that was precipitate.
Furthermore, it was not for the latter to determine conclusively whether a crime
involved moral turpitude. That discretion belonged to the courts, as explained
thus:
". . . . Homicide may or may not involve moral turpitude depending on the
degree of the crime. Moral turpitude is not involved in every criminal act
and is not shown by every known and intentional violation of statute,

but whether any particular conviction involves moral turpitude may be a

question of fact and frequently depends on all the surrounding
circumstances. . . . ." 16 (Emphasis supplied)

TcHDIA

In the IRRI case, in which the crime of homicide did not involve moral turpitude,
the Court appreciated the presence of incomplete self-defense and total absence
of aggravating circumstances. For a better understanding of that Decision, the
circumstances of the crime are quoted as follows:
". . . . The facts on record show that Micosa [the IRRI employee] was
then urinating and had his back turned when the victim drove his fist unto
Micosa's face; that the victim then forcibly rubbed Micosa's face into the
filthy urinal; that Micosa pleaded to the victim to stop the attack but was
ignored and that it was while Micosa was in that position that he drew a
fan knife from the left pocket of his shirt and desperately swung it at the
victim who released his hold on Micosa only after the latter had stabbed
him several times. These facts show that Micosa's intention was not to
slay the victim but only to defend his person. The appreciation in his
favor of the mitigating circumstances of self-defense and voluntary
surrender, plus the total absence of any aggravating circumstance
demonstrate that Micosa's character and intentions were not inherently
vile, immoral or unjust."

17

The present case is totally different. As the IBP correctly found, the
circumstances clearly evince the moral turpitude of respondent and his
unworthiness to practice law.

Atty. Dizon was definitely the aggressor, as he pursued and shot complainant
when the latter least expected it. The act of aggression shown by respondent will
not be mitigated by the fact that he was hit once and his arm twisted by
complainant. Under the circumstances, those were reasonable actions clearly
intended to fend off the lawyer's assault.

We also consider the trial court's finding of treachery as a further indication of the
skewed morals of respondent. He shot the victim when the latter was not in a
position to defend himself. In fact, under the impression that the assault was
already over, the unarmed complainant was merely returning the eyeglasses of
Atty. Dizon when the latter unexpectedly shot him. To make matters worse,
respondent wrapped the handle of his gun with a handkerchief so as not to leave
fingerprints. In so doing, he betrayed his sly intention to escape punishment for
his crime.
The totality of the facts unmistakably bears the earmarks of moral turpitude. By
his conduct, respondent revealed his extreme arrogance and feeling of selfimportance. As it were, he acted like a god on the road, who deserved to be
venerated and never to be slighted. Clearly, his inordinate reaction to a simple
traffic incident reflected poorly on his fitness to be a member of the legal
profession. His overreaction also evinced vindictiveness, which was definitely an
undesirable trait in any individual, more so in a lawyer. In the tenacity with which
he pursued complainant, we see not the persistence of a person who has been
grievously wronged, but the obstinacy of one trying to assert a false sense of
superiority and to exact revenge.
It is also glaringly clear that respondent seriously transgressed Canon 1 of the
Code of Professional Responsibility through his illegal possession of an
unlicensed firearm 18 and his unjust refusal to satisfy his civil liabilities.

19

He has

thus brazenly violated the law and disobeyed the lawful orders of the courts. We
remind him that, both in his attorney's oath

20

and in the Code of Professional

Responsibility, he bound himself to "obey the laws of the land."

All told, Atty. Dizon has shown through this incident that he is wanting in even a
basic sense of justice. He obtained the benevolence of the trial court when it
suspended his sentence and granted him probation. And yet, it has been four
years 21 since he was ordered to settle his civil liabilities to complainant. To date,
respondent remains adamant in refusing to fulfill that obligation. By his extreme
impetuosity and intolerance, as shown by his violent reaction to a simple traffic
altercation, he has taken away the earning capacity, good health, and youthful

vigor of his victim. Still, Atty. Dizonbegrudges complainant the measly amount
that could never even fully restore what the latter has lost.

AICTcE

Conviction for a crime involving moral turpitude may relate, not to the exercise of
the profession of lawyers, but certainly to their good moral character. 22 Where
their misconduct outside of their professional dealings is so gross as to show
them morally unfit for their office and unworthy of the privileges conferred upon
them by their license and the law, the court may be justified in suspending or
removing them from that office. 23
We also adopt the IBP's finding that respondent displayed an utter lack of good
moral character, which is an essential qualification for the privilege to enter into
the practice of law. Good moral character includes at least common honesty. 24
In the case at bar, respondent consistently displayed dishonest and duplicitous
behavior. As found by the trial court, he had sought, with the aid of Vice-Mayor
Daniel Farias, an out-of-court settlement with complainant's family.

25

But when

this effort failed, respondent concocted a complete lie by making it appear that it
was complainant's family that had sought a conference with him to obtain his
referral to a neurosurgeon. 26
The lies of Atty. Dizon did not end there. He went on to fabricate an entirely
implausible story of having been mauled by complainant and two other
persons. 27 The trial court had this to say:
"The physical evidence as testified to by no less than three (3) doctors
who examined [Atty. Dizon] does not support his allegation that three
people including the complainant helped each other in kicking and
boxing him. The injuries he sustained were so minor that it is
improbable[,] if not downright unbelievable[,] that three people who he
said were bent on beating him to death could do so little damage. On the
contrary, his injuries sustain the complainant's version of the incident
particularly when he said that he boxed the accused on the chest. . . ."

28

Lawyers must be ministers of truth. No moral qualification for bar membership is

more important than truthfulness. 29 The rigorous ethics of the profession places

a premium on honesty and condemns duplicitous behavior.

30

Hence, lawyers

must not mislead the court or allow it to be misled by any artifice. In all their
dealings, they are expected to act in good faith.
The actions of respondent erode rather than enhance public perception of the
legal profession. They constitute moral turpitude for which he should be
disbarred. "Law is a noble profession, and the privilege to practice it is bestowed
only upon individuals who are competent intellectually, academically and, equally
important, morally. Because they are vanguards of the law and the legal system,
lawyers must at all times conduct themselves, especially in their dealings with
their clients and the public at large, with honesty and integrity in a manner
beyond reproach." 31
The foregoing abhorrent acts of respondent are not merely dishonorable; they
reveal a basic moral flaw. Considering the depravity of the offense he committed,
we find the penalty recommended by the IBP proper and commensurate.
The purpose of a proceeding for disbarment is to protect the administration of
justice by requiring that those who exercise this important function be competent,
honorable and reliable lawyers in whom courts and clients may repose
confidence. 32 Thus, whenever a clear case of degenerate and vile behavior
disturbs that vital yet fragile confidence, we shall not hesitate to rid our profession
of odious members.
We remain aware that the power to disbar must be exercised with great caution,
and that disbarment should never be decreed when any lesser penalty would
accomplish the end desired. In the instant case, however, the Court cannot
extend that munificence to respondent. His actions so despicably and wantonly
disregarded his duties to society and his profession. We are convinced that
meting out a lesser penalty would be irreconcilable with our lofty aspiration for the
legal profession that every lawyer be a shining exemplar of truth and justice.
We stress that membership in the legal profession is a privilege demanding a
high degree of good moral character, not only as a condition precedent to
admission, but also as a continuing requirement for the practice of law. Sadly,

herein respondent has fallen short of the exacting standards expected of him as a
vanguard of the legal profession.

AHcDEI

In sum, when lawyers are convicted of frustrated homicide, the attending

circumstances not the mere fact of their conviction would demonstrate their
fitness to remain in the legal profession. In the present case, the appalling
vindictiveness, treachery, and brazen dishonesty of respondent clearly show his
unworthiness to continue as a member of the bar.
WHEREFORE, RESPONDENT MANUEL DIZON is hereby DISBARRED, and his
name is ORDERED STRICKEN from the Roll of Attorneys. Let a copy of this
Decision be entered in his record as a member of the Bar; and let notice of the
same be served on the Integrated Bar of the Philippines, and on the Office of the
Court Administrator for circulation to all courts in the country.
SO ORDERED.
|||

(Soriano v. Dizon, A.C. No. 6792, January 25, 2006)

METROPOLITAN BANK & TRUST COMPANY, petitioner, vs. CO

URT OF APPEALS, GOLDEN SAVINGS & LOAN ASSOCIATION,
INC., LUCIACASTILLO, MAGNO CASTILLO and GLORIA CASTI
LLO, respondents.
Angara, Abello, Concepcion, Regala & Cruz for petitioner.
Bengzon,

Zarraga,

Narciso,

Cudala,

Pecson

&

Bengson for Magno and Lucia Castillo.

Agapito

S. Fajardo and Jaime

respondent Golden Savings & Loan Association, Inc.

DECISION

M. Cabiles for

CRUZ, J :
p

This

case,

for

all

its

seeming

complexity,

turns

on

simple

question of negligence. The facts, pruned of all non-essentials, are easily told.
The Metropolitan Bank and Trust Co.
throughout

the

is

commercial bank with

Philippines

and

branches
even

abroad. Golden Savings and LoanAssociation was, at the time these events
happened, operating in Calapan, Mindoro, with the other private respondents as
its principal officers.
In

January

1979,

certain

Eduardo

Gomez

opened

an

account

with Golden Savings and deposited over a period of two months 38 treasury
warrants with a total value of P1,755,228.37. They were all drawn by the
Philippine Fish Marketing Authority and purportedly signed by its General
Manager and counter-signed by its Auditor. Six of these were directly payable to
Gomez while the others appeared to have been indorsed by their respective
payees, followed by Gomez as second indorser. 1
On various dates between June 25 and July 16, 1979, all these warrants were
subsequently

indorsed

by Gloria Castillo as

Cashier of Golden Savings and

deposited to its Savings Account No. 2498 in the Metrobank branch in Calapan,
Mindoro. They were then sent for clearing by the branch office to the principal
office of Metrobank, which forwarded them to the Bureau of Treasury for special
clearing. 2
More than two weeks after the deposits, Gloria Castillo went to the Calapan
branch several times to ask whether the warrants had been cleared. She was told
to wait. Accordingly, Gomez was meanwhile not allowed to withdraw from his
account. Later, however, "exasperated" over Gloria's repeated inquiries and also
as an accommodation for a "valued client," the petitioner says it finally decided to
allow Golden Savings to withdraw from the proceedsof the warrants. 3 The first
withdrawal was made on July 9, 1979, in the amount of P508,000.00, the second
on July 13, 1979, in the amount ofP310,000.00, and the third on July 16, 1979, in
the amount of P150,000.00. The total withdrawal was P968,000.00. 4

In turn, Golden Savings subsequently allowed Gomez to make withdrawals from

his own account, eventually collecting the total amount of P1,167,500.00 from the
proceeds of the apparently cleared warrants. The last withdrawal was made on
July 16, 1979.
On July 21, 1979, Metrobank informed Golden Savings that 32 of the warrants
had been dishonored by the Bureau of Treasury on July 19, 1979, and demanded
the refund by Golden Savings of the amount it had previously withdrawn, to make
up the deficit in its account.
The demand was rejected. Metrobank then sued Golden Savings in the Regional
Trial Court of Mindoro.

After

trial,

judgment

was

rendered

in

favor ofGolden Savings, which, however, filed a motion for reconsideration even
as

Metrobank

filed

its

notice of appeal.

On

November

4,

1986,

lower courtmodified its decision thus:

ACCORDINGLY, judgment is hereby rendered:
1. Dismissing the complaint with costs against the plaintiff;
2. Dissolving

and

lifting

the

writ of attachment of the

properties of defendant Golden Savings and Loan Association, Inc. and

defendant SpousesMagno Castillo and Lucia Castillo;
3. Directing the plaintiff to reverse its action of debiting Savings Account
No. 2498 of the sum of P1,754,089.00 and to reinstate and credit to such
account such amount existing before the debit was made including the
amount of P812,033.37

in

favor of defendant Golden Savings and LoanAssociation, Inc.

and

thereafter, to allow defendant Golden Savings and Loan Association, Inc.

to withdraw the amount outstanding thereon before the debit;
4. Ordering

the

plaintiff

to

defendant Golden Savings and Loan Association, Inc.

and expenses of litigation in the amount ofP200,000.00.

pay
attorney's

the
fees

the

5. Ordering

the

plaintiff

to

pay

the

Spouses Magno Castillo and Lucia Castillo attorney's

defendant
fees

and

expenses of litigation in the amount ofP100,000.00.

SO ORDERED.

On appeal to the respondent court, 6 the decision was affirmed, prompting

Metrobank to file this petition for review on the following grounds:
1. Respondent Court of Appeals erred in disregarding and failing to
apply the clear contractual terms and conditions on the deposit slips
allowing Metrobank to charge back any amount erroneously credited.
(a) Metrobank's right to charge back is not limited to instances where the
checks or treasury warrants are forged or unauthorized.
(b) Until such time as Metrobank is actually paid, its obligation is that of a
mere collecting agent which cannot be held liable for its failure to collect
on the warrants.
2. Under

the

lower court's

decision,

affirmed

by

respondent Court of Appeals, Metrobank is made to pay for warrants

already dishonored, thereby perpetuating the fraud committed by
Eduardo Gomez.
3. Respondent Court of Appeals erred in not finding that as between
Metrobank and Golden Savings, the latter should bear the loss.
4. Respondent Court of Appeals erred in holding that the treasury
warrants involved in this case are not negotiable instruments.

The petition has no merit.

From the above undisputed facts, it would appear to the Court that Metrobank
was indeed negligent in giving Golden Savings the impression that the treasury
warrants had been cleared and that, consequently, it was safe to allow Gomez to
withdraw the proceeds thereof from his account with it. Without such
assurance, Golden Savings would not have allowed the withdrawals; with such

assurance,

there

was

no

reason

not

to

allow

the

withdrawal.

Indeed, Golden Savings might even have incurred liability for its refusal to return
the money that to all appearances belonged to the depositor, who could therefore
withdraw it any time and for any reason he saw fit.
It

was,

in

fact,

to

secure

that Golden Savings deposited

the

clearance of the

them

to

its

treasury

warrants

account

with

Metrobank. Golden Savings had no clearing facilities of its own. It relied on

Metrobank to determine the validity of the warrants through its own services. The
proceeds of the

warrants

were

withheld

from

Gomez

until

Metrobank

allowed Golden Savings itself to withdraw them from its own deposit. 7 It was
only when Metrobank gave the go-signal that Gomez was finally allowed
by Golden Savings to withdraw them from his own account.
The argument of Metrobank that Golden Savings should have exercised more
care in checking the personal circumstances of Gomez before accepting his
deposit does not hold water. It was Gomez who was entrusting the warrants,
not Golden Savings that was extending him a loan; and moreover, the treasury
warrants were subject to clearing, pending which the depositor could not
withdraw its proceeds. There was no question of Gomez's identity orof the
genuineness of his signature as checked by Golden Savings. In fact, the treasury
warrants

were

dishonored

allegedly

because of the

forgery of the

signatures of the drawers, not of Gomez as payee or indorser. Under the

circumstances, it is clear that Golden Savings acted with due care and diligence
and cannot be faulted for the withdrawals it allowed Gomez to make.
By contrast, Metrobank exhibited extraordinary carelessness. The amount
involved was not trifling more than one and a half million pesos (and this was
1979). There was no reason why it should not have waited until the treasury
warrants had been cleared; it would not have lost a single centavo by waiting.
Yet, despite the lack of such clearance and notwithstanding that it had not
received a single centavo from the proceeds of the treasury warrants, as it now
repeatedly stresses it allowed Golden Savings to withdraw not once, not

twice,

but thrice

from

amount of P968,000.00.
Its

reason?

It

the uncleared treasury

warrants

in

the

total

LexLib

was

"exasperated"

inquiries of Gloria Castillo about

the

clearance

over
and

the
it

also

persistent
wanted

to

"accommodate" a valued client. It "presumed" that the warrants had been cleared
simply because of "the lapse of one week." 8 For a bank with its long experience,
this explanation is unbelievably naive.

llcd

And now, to gloss over its carelessness, Metrobank would invoke the conditions
printed on the dorsal side of the deposit slips through which the treasury warrants
were deposited by Golden Savings with its Calapan branch. The conditions read
as follows:
Kindly note that in receiving items on deposit, the bank obligates itself
only as the depositor's collecting agent, assuming no responsibility
beyond care in selecting correspondents, and until such time as actual
payment shall have come into possession of this bank, the right is
reserved to charge back to the depositor's account any amount
previously credited, whether or not such item is returned. This also
applies to checks drawn on local banks and bankers and their branches
as well as on this bank, which are unpaid due to insufficiency of funds,
forgery,

unauthorized

overdraft or

any

other

reason.

(Emphasis

supplied.)

According to Metrobank, the said conditions clearly show that it was acting only
as a collecting agent for Golden Savings and give it the right to "charge back to
the depositor's account any amount previously credited, whether or not such item
is returned. This also applies to checks ".. which are unpaid due to
insufficiency of funds, forgery, unauthorized overdraft of any other reason." It is
claimed that the said conditions are in the nature of contractual stipulations and
became binding on Golden Savings when Gloria Castillo, as its Cashier, signed
the deposit slips.

LLpr

Doubt may be expressed about the binding force of the conditions, considering
that they have apparently been imposed by the bank unilaterally, without the
consent of the depositor. Indeed, it could be argued that the depositor, in signing
the deposit slip, does so only to identify himself and not to agree to the conditions
set forth in the given permit at the back of the deposit slip. We do not have to rule
on this matter at this time. At any rate, theCourt feels that even if the deposit slip
were considered a contract, the petitioner could still not validly disclaim
responsibility thereunder in the light ofthe circumstances of this case.

prcd

In stressing that it was acting only as a collecting agent for Golden Savings,
Metrobank seems to be suggesting that as a mere agent it cannot be liable to the
principal. This is not exactly true. On the contrary, Article 1909 of the Civil Code
clearly provides that
Art. 1909. The agent is responsible not only for fraud, but also for
negligence, which shall be judged with more or less rigor by the courts,
according to whether the agency was or was not for a compensation.

The negligence of Metrobank has been sufficiently established. To repeat for

emphasis, it was the clearance given by it that assured Golden Savings it was
already safe to allow Gomez to withdraw the proceeds of the treasury warrants
he had deposited. Metrobank misled Golden Savings. There may have been no
express

clearance,

as

Metrobank

insists

(although

this

is

refuted

by Golden Savings) but in any case that clearance could be implied from its
allowing Golden Savings to withdraw from its account not only once or even twice
but three times. The total withdrawal was in excess of its original balance before
the treasury warrants were deposited, which only added to its belief that the
treasury warrants had indeed been cleared.
Metrobank's argument that it may recover the disputed amount if the warrants are
not paid for any reason is not acceptable. Any reason does not mean no reason
at all. Otherwise, there would have been no need at all for Golden Savings to
deposit the treasury warrants with it for clearance. There would have been no
need for it to wait until the warrants had been cleared before paying the proceeds

thereof

to

Gomez.

Such

condition,

if

interpreted

in

the

way

the petitioner suggests, is not binding for being arbitrary and unconscionable.
And it becomes more so in the case at bar when it is considered that the
supposed

dishonor of the

warrants

was

not

to Golden Savings before it made its own payment to Gomez.

communicated
LibLex

The belated notification aggravated the petitioner's earlier negligence in giving

express or at least implied clearance to the treasury warrants and allowing
payments therefrom to Golden Savings. But that is not all. On top of this, the
supposed reason for the dishonor, to wit, the forgery of the signatures of the
general manager and the auditor of the drawer corporation, has not been
established. 9 This was the finding of the lower courts which we see no reason to
disturb. And as we said in MWSS v. Court of Appeals: 10
Forgery cannot be presumed (Siasat, et al. v. IAC, et al., 139 SCRA 238). It must
be established by clear, positive and convincing evidence. This was not done in
the present case.
A no less important consideration is the circumstance that the treasury warrants
in question are not negotiable instruments. Clearly stamped on their face is the
word "non-negotiable." Moreover, and this is of equal significance, it is indicated
that they are payable from a particular fund, to wit, Fund 501.
The following sections of the Negotiable Instruments Law, especially the
underscored parts, are pertinent:
SECTION 1. Form of negotiable instruments. An instrument to be
negotiable must conform to the following requirements:
(a) It must be in writing and signed by the maker or drawer;
(b) Must contain an unconditional promise or order to pay a sum certain
in money;
(c) Must be payable on demand, or at a fixed or determinable future time;
(d) Must be payable to order or to bearer; and

(e) Where the instrument is addressed to a drawee, he must be named

or otherwise indicated therein with reasonable certainty.
xxx xxx xxx
SEC. 3. When promise is unconditional. An unqualified order or
promise to pay is unconditional within the meaning of this Act though
coupled with
(a) An indication of a particular fund out of which reimbursement is to be
made or a particular account to be debited with the amount; or
(b) A statement of the transaction which gives rise to the instrument.
But an order or promise to pay out of a particular fund is not
unconditional.

The indication of Fund 501 as the source of the payment to be made on the
treasury warrants makes the order or promise to pay "not unconditional" and the
warrants themselves non-negotiable. There should be no question that the
exception on Section 3 of the Negotiable Instruments Law is applicable in the
case at bar. This conclusion conforms to Abubakar vs. Auditor General 11 where
the Court held:
The petitioner argues that he is a holder in good faith and for value of a
negotiable instrument and is entitled to the rights and privileges of a
holder in due course, free from defenses. But this treasury warrant is not
within the scope of the negotiable instrument law. For one thing, the
document bearing on its face the words "payable from the appropriation
for food administration, is actually an Order for payment out of "a
particular fund," and is not unconditional and does not fulfill one of the
essential requirements of a negotiable instrument (Sec. 3 last sentence
and section [1(b)] of the Negotiable Instruments Law).

Metrobank

cannot

contend

that

by

indorsing

the

warrants

in

general, Golden Savings assumed that they were "genuine and in all respects
what they purport to be," in accordance with Section 66 of the Negotiable

Instruments Law. The simple reason is that this law is not applicable to the nonnegotiable treasury warrants. The indorsement was made by Gloria Castillo not
for the purpose of guaranteeing the genuineness of the warrants but merely to
deposit them with Metrobank for clearing. It was in fact Metrobank that made the
guarantee when it stamped on the back of the warrants: "All prior indorsement
and/or

lack of endorsements

Calapan Branch."

guaranteed, Metropolitan Bank & Trust Co.,

LLphil

The petitioner lays heavy stress on Jai Alai Corporation v. Bank of the Philippine
Islands, 12 but we feel this case is inapplicable to the present controversy. That
case

involved

checks

whereas

this

case

involves

treasury

warrants. Golden Savings never represented that the warrants were negotiable
but signed them only for the purpose of depositing them for clearance. Also, the
fact of forgery was proved in that case but not in the case before us. Finally,
the Court found the Jai Alai Corporation negligent in accepting the checks
without question from one Antonio Ramirez notwithstanding that the payee was
the Inter-Island Gas Services, Inc. and it did not appear that he was authorized to
indorse it. No similar negligence can be imputed toGolden Savings.

LibLex

We find the challenged decision to be basically correct. However, we will have to

amend it insofar as it directs the petitioner to credit Golden Savings with the full
amount of the treasury checks deposited to its account.
The total value of the 32 treasury warrants dishonored was P1,754,089.00, from
which Gomez was allowed to withdraw P1,167,500.00 before GoldenSavings was
notified of the dishonor. The amount he has withdrawn must be charged not
to Golden Savings but to Metrobank, which must bear the consequences of its
own

negligence.

But

the

balance of P586,589.00

should

be

debited

to Golden Savings, as obviously Gomez can no longer be permitted to withdraw

this amount from his deposit because of the dishonor of the warrants. Gomez has
in fact disappeared. To also credit the balance to Golden Savings would unduly
enrich it at the expense of Metrobank, let alone the fact that it has already been
informed of the dishonor of the treasury warrants.

LLpr

WHEREFORE, the challenged decision is AFFIRMED, with the modification that

Paragraph 3 of the dispositive portion of the judgment of the lower courtshall be
reworded as follows:
3. Debiting Savings Account No. 2498 in the sum of P586,589.00 only
and

thereafter

defendant Golden Savings & Loan Association, Inc.

allowing
to

withdraw

the

amount outstanding thereon, if any, after the debit.

SO ORDERED.
Narvasa, Gancayco, Grio-Aquino and Medialdea, JJ., concur.
|||

(Metropolitan Bank & Trust Co. v. Court of Appeals, G.R. No. 88866, February

18, 1991)

WELLINGTON REYES, complainant, vs. ATTY.

SALVADOR

M. GAA, respondent.
Jo Aurea L. Marcos for complainant.
The Solicitor General for respondent.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; TESTIMONY OF A WITNESS; AFFIRMATIVE
VERSUS NEGATIVE; RULE; APPLICATION IN CASE AT BAR. In the case at
bench, respondent was caught in flagrante delicto in the act of receiving the
marked money from complainant during the entrapment conducted by the NBI
agents, which resulted in his arrest and the subsequent filing of administrative
and criminal cases against him. In his defense, respondent merely denied the
charge of extortion and retorted that the marked money was planted by
complainant. It is settled that affirmative testimony is given greater weight than

negative testimony (Delos Reyes v. Aznar, 179 SCRA 653 [1989]) When the
integrity of a member of the bar is challenged, it is not enough that he denies the
charges against him; he must meet the issue and overcome the evidence against
him (Malcolm, Legal and Judicial Ethics 93 [1949]). He must show proof that he
still maintains that degree of morality and integrity which at all times is expected
of him (Bayasen v. Court of Appeals, 103 SCRA 197 [1981]; Vda de
Ramos v. Court of Appeals, 81 SCRA 3939 [1978]).
2. ADMINISTRATIVE LAW; LAWYERS AS PUBLIC OFFICIALS; MISCONDUCT;
DISCIPLINE REQUIRED; CASE AT BAR. Where the misconduct of a lawyer
as a government official is of such a character as to affect his qualification as a
lawyer or to show moral delinquency, then he may be disciplined as a member of
the bar on such grounds (Gonzales-Austria v. Abaya, 175 SCRA 634 [1989]). The
extortion committed by respondent constitutes misconduct as a public official,
which also constitutes a violation of his oath as a lawyer. The lawyer's oath
(Revised Rules of Court, Rule 138, Section 18; People v. De Luna, 102 Phil. 968
[1958]), imposes upon every lawyer the duty to delay no man for money or
malice. The lawyer's oath is a source of his obligations and its violation is a
ground for his suspension, disbarment or other disciplinary action (Agpalo, Legal
Ethics 66-67 [1983]).

DECISION

PER CURIAM :
p

This administrative complaint for disbarment charges respondent, a

former Assistant City Fiscal of Manila, with malpractice and willful violation of
his oath as an attorney.

llcd

I
On March 30, 1971, at around 9:00 A.M., complainant reported to the
National Bureau of Investigation (NBI) that he had been the victim of extortion

by respondent, an Assistant City Fiscal of Manila, who was investigating a

complaint for estafa filed by complainant's business rival. According to
complainant, he had given respondent P500.00 on March 1, 1971 and a total
of P500.00 on three other occasions. He said that another "payoff" was
scheduled at 11:00 A.M. that day in respondent's office at the City Hall.
An entrapment was set up by the NBI.
Complainant furnished the NBI agents several peso bills totalling
P150.00 for marking. The paper bills were sent to the Forensic and Chemistry
Division of the NBI and subsequently returned to complainant for use in the
entrapment.
When complainant went to respondent's office, he was told that the
latter would not return until around 2:30. P.M. So complainant and the NBI
agents went back at around 2:30 P.M. As there were other persons doing
business with respondent, complainant had to wait for thirty minutes. When
finally complainant was able to see respondent, the latter greeted him in
Tagalog "Ano ba ang sa iyo?" Complainant answered "Hindi tayo nagkita
kaninang umaga." To which respondent replied "Oo, kanina pa kita hinihintay."
Complainant then handed to respondent the marked money which he placed
inside his right pocket. The NBI agents then apprehended respondent and
brought him to the NBI Forensic and Chemistry Division for examination.
Respondent's hands were found positive of the yellow florescent powder
applied earlier to the marked money. Respondent was thereafter taken to the
Office of the Anti-Organized Crime Division of the NBI where he was
photographed, fingerprinted and record checked. Respondent declined to give
a sworn statement to explain his side of the case, invoking his right against
self-incrimination.
On the same date, the NBI recommended the prosecution of
respondent for violation of Section 3(b) of R.A. No. 3019.
On April 13, 1971, the NBI recommended to the Secretary of Justice the
filing of administrative charges and the institution of disbarment proceedings
against him.

On April 21, 1971, President Marcos suspended respondent from office

pending investigation and disposition of his administrative case (Case No. 74).
Aside from the criminal complaint and Administrative Case No. 74, two
other cases were earlier filed against respondent: namely, Administrative Case
No. 10 for Grave Misconduct filed by one Angel Alora on October 13, 1969,
wherein respondent was found guilty as charged and was recommended for
suspension; and Administrative Case No. 10-A for partiality filed by Fabiola
Fajardo on April 26, 1970, which was pending resolution.
In his answer to the complaint for disbarment, respondent asserted that
complainant surreptitiously planted the marked money in his pocket without
his knowledge and consent.
He further said that the criminal case (IS No. 71-6558) filed against him
by the NBI at the instance of complainant was still pending preliminary
investigation by the City Fiscal of Manila. In connection with the incident of
March 30, 1971, he said that he had filed a criminal complaint for incriminatory
machination, perjury and attempted corruption of a public official against
complainant with the City Fiscal of Manila.
In reply to the answer, complainant denied that the several cases
against respondent were motivated by revenge, malice or personal ill will. He
said that the investigating fiscal had recommended the dismissal of the
charges filed by respondent against him.
In a resolution dated December 23, 1971, this Court resolved to refer
the disbarment case to the Solicitor General for investigation, report and
recommendation. However, upon the adoption of Rule 139-B of the Revised
Rules of Court, the case was transferred to the IBP Board of Governors for
investigation and disposition.
On March 15, 1993, Commissioner Vicente Q. Roxas of the
Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP)
recommended that respondent be disbarred. Said recommendation was

approved by the IBP Board of Governors in its resolution dated March 26,
1994.
II
We agree with the recommendation of the IBP Board of Governors.
In the case at bench, respondent was caught in flagrante delicto in the
act of receiving the marked money from complainant during the entrapment
conducted by the NBI agents, which resulted in his arrest and the subsequent
filing of administrative and criminal cases against him. In his defense,
respondent merely denied the charge of extortion and retorted that the marked
money was planted by complainant.
It is settled that affirmative testimony is given greater weight than
negative testimony (Delos Reyes v. Aznar, 179 SCRA 653 [1989]). When the
integrity of a member of the bar is challenged, it is not enough that he denies
the charges against him; he must meet the issue and overcome the evidence
against him (Malcolm, Legal and Judicial Ethics 93 [1949]). He must show
proof that he still maintains that degree of morality and integrity which at all
times is expected of him (Bayasen v. Court of Appeals, 103 SCRA 197
[1981]; Vda. de Ramos v. Court of Appeals, 81 SCRA. 393 [1978]).

cdphil

Where the misconduct of a lawyer as a government official is of such a

character as to affect his qualification as a lawyer or to show moral
delinquency, then he may be disciplined as a member of the bar on such
grounds (Gonzales-Austria v. Abaya, 176 SCRA 634 [1989]).
The extortion committed by respondent constitutes misconduct as a
public official, which also constitutes a violation of his oath as a lawyer. The
lawyer's oath (Revised Rules of Court, Rule 138, Section 18; People v. De
Luna, 102 Phil. 968 (1958]), imposes upon every lawyer the duty to delay no
man for money or malice. The lawyer's oath is a source of his obligations and
its violation is a ground for his suspension, disbarment or other disciplinary
action (Agpalo, Legal Ethics 66-67 [1983]).

WHEREFORE, respondent is DISBARRED and his name is ordered

STRICKEN OFF from the Roll of Attorneys. Let a copy of this resolution be
furnished the Bar Confidant and the Integrated Bar of the Philippines and
spread on the personal records of respondent.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Romero, Quiason, Puno,
Vitug, Kapunan, Mendoza and Francisco, JJ., concur.
Bellosillo, J., is on leave.
Melo, J., took no part; was the Solicitor who investigated this case in 1972.
|||

(Reyes v. Gaa, A.M. No. 1048, July 14, 1995)

ISIDRA TING-DUMALI, complainant, vs.

ATTY.

ROLANDO

S. TORRES, respondent.

RESOLUTION

PER CURIAM :
p

In a Complaint-Affidavit 1 filed on 22 October 1999 with this Court, complainant

Isidra Ting-Dumali charges respondent Atty. Rolando S. Torres with presentation
of false testimony; participation in, consent to, and failure to advise against, the
forgery of complainant's signature in a purported Deed of Extrajudicial
Settlement; and gross misrepresentation in court for the purpose of profiting from
such forgery, thereby violating his oath as a lawyer and the canons of legal and
judicial ethics.
The complainant is one of the six children of the late spouses Julita Reynante
and Vicente Ting. Her siblings are Marcelina T. Rivera; Miriam T. Saria; Felicisima

T. Torres, who is married to herein respondent; Vicente Ting, Jr.; and Eliseo Ting.
Their parents died intestate and left several parcels of land, to wit:
a) One half of Lot 1586 of the San Francisco de Malabon Estate,
containing an area of 43,908 square meters more or less, and
covered at that time by TCT No. (T-6203) RT-19151 of the
Registry of Deeds of Cavite;
b) Lot 1603 of the San Francisco de Malabon Estate, containing an area
of 16,073 square meters, more or less, and covered at that time
by TCT No. (T-6425) RT-7688 of the Registry of Deeds of Cavite;
c) Lot 1605 of the San Francisco de Malabon Estate, containing an area
of 22,131 square meters, more or less and covered at that time by
TCT No. T-1869 of the Registry of Deeds of Cavite.

According to the complainant, the respondent took advantage of his relationship

with her and her brothers and used his profession to deprive them of what was
lawfully due them even if it involved the commission of an illegal, unlawful, or
immoral act. She attributes to the respondent the following acts or omissions:
1. The respondent participated in, consented to, and failed to advise
against, the perjury committed by his wife Felicisima and his sister-in-law
Miriam when they executed a Deed of Extrajudicial Settlement of Estate
dated 11 November 1986, wherein the two made it appear that they were
the sole heirs of the late spouses Julita Reynante and Vicente Ting,
knowing fully well that the same was false. He presented that document
to the Register of Deeds of Cavite for the transfer of the title over Lot No.
1586 in the names of his wife and Miriam. The lot was later sold to Antel
Holdings Inc. for P1,195,400. Payment was already made to, and
received by, Felicisima and Miriam.
2. The respondent participated in, consented to, and failed to advise
against, the forgery of complainant's signature in a purported Deed of
Extrajudicial Settlement dated 17 March 1995 involving Lot 1603 when
he knew that she was in Italy at that time working as an overseas

contract worker. He even presented the falsified document to the

Register of Deeds of Cavite to transfer the title over the property in favor
of his wife Felicisima and sister-in-law Marcelina. The forgery or
falsification was made to enable them to sell Lot 1603 to Antel Holdings,
Inc. Payment was received and misappropriated by Felicisima and
Marcelina.
3. In

LRC

Rec.

No.

5964

entitled In

Re: Petition

for

Judicial

Reconstitution of the Original Copy and Owner's Duplicate Copy of TCT

No. T-1869 Covering Lot No. 1605 of the Registry of Deeds for the
Province of Cavite, filed by complainant's sisters Marcelina and
Felicisima

on

24

October

1995,

the

respondent

made

gross

misrepresentation and offered false testimony to the effect that Marcelina

and Felicisima are the only children and legal heirs of the late spouses
Vicente Ting and Julita Reynante for the purpose of obtaining a new title
in their names. With the reconstituted title, and with the express
conformity of the respondent, Felicisima and Marcelina were able to sell
Lot 1605 to Antel Holdings, Inc., for $2,213,100 and profited from the
sale to the exclusion of their other siblings. Partial payment was even
received pending the reconstitution proceedings.
4. On 20 November 1996, the respondent made gross and false
misrepresentations for the purpose of profiting therefrom when he
requested the buyer through a certain Mrs. Ong to release the full
payment for Lot 1605 under the pretense that the order of reconstitution
would be released within a month when he knew that it would be
impossible because he presented evidence in the reconstitution case
only on 12 August 1997. To facilitate the release of the money, he even
used the stationery of the Philippine National Bank, of which he was an
employee.

In his Comment, 2 the respondent denies the allegations of the complaint and
asserts that he did not take advantage of his profession to deprive any of the coheirs of his wife of the estate left by his parents-in-law.

Insofar as Lot 1586 is concerned, the respondent affirms that Felicisima and
Miriam were not motivated by any desire to solely profit from the sale. Neither can
he be faulted by the execution of the Deed of Extrajudicial Settlement dated 17
March 1995 involving Lot 1603 because he had no part in the execution of the
document. All the while he believed in good faith that the Ting sisters had already
agreed on how to dispose of the said lot. If ever complainant's signature was
affixed on that document, it was done in good faith.
The respondent admits that he was the counsel of Marcelina Ting Rivera, et. al.,
in LRC Case No. 5964 for the reconstitution of TCT No. T-1869. The false
testimony of Marcelina in that case that she and Felicisima were the only children
of spouses Vicente Ting and Julita Reynante could not be faulted on him
because such was a clear oversight. Moreover, the sale of Lot 1605 to Antel
Holdings, Inc., was the decision of Marcelina and his wife. His conformity through
his signature was pro-forma because the property was a paraphernal property of
Marcelina and his wife. Anent his alleged gross and false misrepresentation that
the order of reconstitution would be released by the end of November 1996,
suffice it to say that the assurance was made by the Clerk of Court, Mr. Rosauro
Morabe. Besides, petitions for reconstitution are usually uncontested and granted
by courts.
Finally, the respondent believes that complainant intended to harass him in
bombarding him with numerous lawsuits, i.e., this administrative case; Civil Case
No. TM-855 for "Annulment of Documents, Titles, and Reconveyance plus
Damages"; and a criminal case for Estafa and Falsification of Public Documents.
In her reply, the complainant denies the presence of toka or verbal will allegedly
made by her mother and allegedly implemented by their eldest brother Eliseo in
view of the following circumstances: (1) her mother met a sudden death in 1967;
and partition of the properties in total disregard of their father was morally
reprehensible, since the latter was still alive; (2) when their mother died, four of
the siblings were still minors including respondent's wife herself; (3) on 5
February 2000, Eliseo wrote his siblings, in response to the previous letter of
Felicisima, Marcelina, and Miriam, denying the existence of a toka. She further

states that the respondent was not merely a passive onlooker but, as he
admitted, the administrator of the properties of the Tingspouses.
On 14 June 2000, this Court referred the case to the Integrated Bar of the
Philippines (IBP) for investigation, report, and recommendation or decision. 3
On 9 January 2003, after due hearing and consideration of the issues presented
by both parties, Investigating Commissioner Milagros V. San Juan of the
Commission on Bar Discipline of the IBP found the actuations of the respondent
to be violative of Rules 1.01 and 1.02 of Canon 1 and Rule 10.01 of Canon 10 of
the Code of Professional Responsibility. Thus she recommended that the
respondent be disbarred from the practice of law. 4
In its Resolution No. XV-2003.333 5 of 21 June 2003, the Board of Governors of
the IBP approved and adopted Commissioner San Juan's report, but reduced the
penalty to suspension from the practice of law for six years.
We fully agree with the Investigating Commissioner in her findings of facts and
conclusion of culpability. The respondent has sufficiently demonstrated that he is
morally and legally unfit to remain in the exclusive and honorable fraternity of the
legal profession. In his long years as a lawyer, he must have forgotten his sworn
pledge as a lawyer. It is time once again that the Court inculcate in the hearts of
all lawyers that pledge; thus:

DTcASE

LAWYER'S OATH
I, __________, do solemnly swear that I will maintain allegiance to the
Republic of the Philippines; I will support its Constitution and obey the
laws as well as the legal orders of the duly constituted authorities
therein; I will do no falsehood, nor consent to its commission; I will not
wittingly or willingly promote or sue any groundless, false or unlawful suit
nor give aid nor consent to the same; I will delay no man for money or
malice, and will conduct myself as a lawyer according to the best of my
knowledge and discretion with all good fidelity as well to the courts as to
my clients; and I impose upon myself this voluntary obligation without
any mental reservation or purpose of evasion.

SO HELP ME GOD.

This oath to which all lawyers have subscribed in solemn agreement to dedicate
themselves to the pursuit of justice is not a mere ceremony or formality for
practicing law to be forgotten afterwards; nor is it mere words, drift and hollow,
but a sacred trust that lawyers must uphold and keep inviolable at all times. By
swearing the lawyer's oath, they become guardians of truth and the rule of law, as
well as instruments in the fair and impartial dispensation of justice. 6 This oath is
firmly echoed and reflected in the Code of Professional Responsibility, which
provides:
CANON 1 A lawyer shall uphold the constitution, obey the laws of the
land and promote respect for law and for legal processes.

Rule 1.01 A lawyer shall not engage in unlawful, dishonest, immoral

or deceitful conduct.
Rule 1.02 A lawyer shall not counsel or abet activities aimed at
defiance of the law or at lessening confidence in the legal system.
xxx xxx xxx
CANON 7 A lawyer shall at all times uphold the integrity and dignity of
the legal profession, and support the activities of the Integrated Bar.
xxx xxx xxx
Rule 7.03 A lawyer shall not engage in conduct that adversely reflects
on his fitness to practice law, nor should he, whether in public or private
life, behave in a scandalous manner to the discredit of the legal
profession.
xxx xxx xxx
CANON 10 A lawyer owes candor, fairness and good faith to the
court.

Rule 10.01 A lawyer shall not do any falsehood, nor consent to the
doing of any in court; nor shall he mislead or allow the court to be misled
by any artifice.

All of these underscore the role of a lawyer as the vanguard of our legal system.
When the respondent took the oath as a member of the legal profession, he
made a solemn promise to so stand by his pledge. In this covenant, respondent
miserably failed.
The records show that Felicisima and Miriam stated in the Extrajudicial
Settlement of Estate dated 11 November 1986 that they are the children of Julita
Reynante and thus adjudicated only between them Lot No. 1586 to the exclusion
of their other siblings. 7 There was concealment of the fact that there were other
compulsory heirs to the estate of the deceased. Significantly, the respondent is
the brother-in-law of complainant. Being married to complainant's sister, he knew
of his wife's siblings. In fact, he declared that the complainant stayed with them
while she was in the Philippines. 8 Yet, the respondent presented that document
to the Register of Deeds of General Trias, Cavite, to effect the transfer of the title
of the lot in question in the name of his wife and his sister-in-law Miriam.
It also bears noting that the respondent was consulted 9 regarding the falsification
of complainant's signature in the Extrajudicial Settlement

10

dated 17 March 1995

involving Lot 1603, which contains a purported waiver by the complainant of her
right over the property. Marcelina admitted that she signed complainant's name in
that document. 11 Such act of counterfeiting the complainant's signature to make
it appear that the complainant had participated in the execution of that document
is tantamount to falsification of a public document. 12
Instead of advising Marcelina to secure a written special power of attorney and
against committing falsification, he presented

13

such document to the Registry of

Deeds to secure a new title for the lot in favor of Marcelina and his wife.

14

He

himself, therefore, may also be held liable for knowingly using a falsified
document to the damage of the complainant and her other co-heirs.

15

Notably,

he also admitted in an affidavit dated 22 May 1995 that he prepared the legal
documents for the transfer of Lot 1603. 16
Respondent did not advise his wife and his sisters-in-law from doing acts which
are contrary to law. He must have kept in mind the first and foremost duty of a
lawyer, which is to maintain allegiance to the Republic of the Philippines, uphold
the Constitution, and obey the laws of the land. The Code of Professional
Responsibility underscores the primacy of such duty by providing as its canon
that a lawyer shall uphold the Constitution, obey the laws of the land, and
promote respect for law and legal processes.

17

For a lawyer is the servant of the

law and belongs to a profession to which society has entrusted the administration
of law and the dispensation of justice.

18

As such, he should make himself more

an exemplar for others to emulate.

19

He should not, therefore, engage in

unlawful, dishonest, immoral, or deceitful conduct. 20 He makes himself unfit to

remain in the profession who commits any such unbecoming act or conduct. 21
Respondent's argument that the non-declaration by his wife and his sister-in-law
Marcelina of the other siblings in LRC Rec. No. 5964 for the reconstitution of title
involving Lot 1605 was a mere oversight does not deserve credence in view of
the following circumstances: First, the petition clearly names only Felicisima and
Marcelina as the petitioners when there were six siblings who were heirs of the
unpartitioned lot. 22 Second, during the hearing of said case when the respondent
asked Marcelina whether she has brothers and sisters other than Felicisima, the
latter said none. The transcript of that hearing reads:
ATTY. TORRES:
Q Madame Witness, are you the only child or daughter of the deceased
Sps. Vicente Ting, Jr. and Julita Reynante?
WITNESS:
A No, sir. We are two, Felicisima Torres and I.
Q Do you have other brothers and sisters?
A None, sir. 23

The respondent allowed Marcelina to commit a crime by giving false

testimony 24 in court, and he never corrected the same despite full knowledge of
the true facts and circumstances of the case.

25

Moreover, in knowingly offering in

evidence such false testimony, he himself may be punished as guilty of false

testimony. 26
Moreover, under Canon 10 of the Code of Professional Responsibility, a lawyer
owes candor, fairness, and good faith to the court. He shall "not do any
falsehood, nor consent to the doing of any in court; nor shall he mislead or allow
the court to be misled by any artifice." 27 This Rule was clearly and openly
violated by the respondent when he permitted Marcelina to falsely testify that she
had no siblings aside from Felicisima and when he offered such testimony in the
petition for reconstitution of the title involving Lot 1605.
The respondent must have forgotten that as an attorney he is an officer of the
court called upon to assist in the administration of justice. Like the court itself, he
is an instrument to advance its cause. For this reason, any act on his part that
obstructs and impedes the administration of justice constitutes misconduct and
justifies disciplinary action against him. 28
It may not be amiss to mention that to further support the reconstitution, he
offered in evidence an Affidavit of Loss, which was executed by Marcelina and
notarized by him. During the hearing of this administrative case, Marcelina
admitted that her statement in that affidavit that the title was in her possession
was false, as she was never in possession of the title

29

and would not, therefore,

know that the same was lost.

Moreover, in a letter dated 20 November 1996 addressed to a certain Mrs. Ong,
the respondent requested the release of 50% of the remaining balance for the
sale of Lot 1605, relaying to Antel Holdings, Inc., through Mrs. Ong that he was
assured by the Clerk of Court that the order directing the reconstitution of title for
Lot 1605 would be released within the month.

30

Respondent's information was

misleading because he presented evidence only on 12 August 1997, or almost a

year after he sent the letter.

31

Such act, therefore, shows lack of candor and

honesty on the part of the respondent.

Respondent's acts or omissions reveal his moral flaws and doubtless bring
intolerable dishonor to the legal profession. They constitute gross misconduct for
which he may be disbarred or suspended pursuant to Section 27, Rule 138 of the
Rules of Court, which provides:
Sec.

27. Disbarment

or

suspension

of

attorneys

by

Supreme

Court; grounds therefor. A member of the bar may be disbarred or

suspended from his office as attorney by the Supreme Court for any
deceit, malpractice, or other gross misconduct in such office, grossly
immoral conduct, or by reason of his conviction of a crime involving
moral turpitude, or for any violation of the oath which he is required to
take before the admission to practice, or for a willful disobedience of any
lawful order of a superior court, or for corruptly or willfully appearing as
an attorney for a party to a case without authority to do so. The practice
of soliciting cases at law for the purpose of gain, either personally or
through paid agents or brokers, constitutes malpractice.

In the determination of the imposable disciplinary sanction against an erring

lawyer, we take into account the primary purpose of disciplinary proceedings,
which is to protect the administration of justice by requiring that those who
exercise this important function shall be competent, honorable, and reliable men
in whom courts and clients may repose confidence.

32

While the assessment of

what sanction may be imposed is primarily addressed to our sound discretion, the
sanction should neither be arbitrary or despotic, nor motivated by personal
animosity or prejudice. Rather, it should ever be controlled by the imperative need
to scrupulously guard the purity and independence of the bar. 33
Thus, the supreme penalty of disbarment is meted out only in clear cases of
misconduct that seriously affect the standing and character of the lawyer as an
officer of the court and member of the bar. We will not hesitate to remove an
erring attorney from the esteemed brotherhood of lawyers where the evidence

calls for it. 34 Verily, given the peculiar factual circumstances prevailing in this
case, we find that respondent's gross misconduct calls for the severance of his
privilege to practice law for life, and we therefore adopt the penalty recommended
by the Investigating Commissioner.
IN VIEW OF ALL THE FOREGOING, we find respondent Atty. Rolando
S. Torres guilty of gross misconduct and violation of the lawyer's oath, as well as
Canons 1 and 10 of the Code of Professional Responsibility, thereby rendering
him unworthy of continuing membership in the legal profession. He is thus
ordered DISBARRED from the practice of law, and his name is ordered stricken
off the Roll of Attorneys, effective immediately.

Let copies of this Resolution be furnished the Office of the Bar Confidant, which
shall forthwith record it in the personal files of the respondent; all the courts of the
Philippines; the Integrated Bar of the Philippines, which shall disseminate copies
thereof to all its Chapters; and all administrative and quasi-judicial agencies of
the Republic of the Philippines.
SO ORDERED.
Davide, Jr., C .J ., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo,
Sr., Azcuna and Tinga, JJ ., concur.
Footnotes
(Ting-Dumali v. Torres, A.C. No. 5161, April 14, 2004)
|||

EN BANC
[A.C. No. 3360. January 30, 1990.]

PEOPLE OF

THE

PHILIPPINES, complainant, vs. ATTY.

FE

T. TUANDA, respondent.
SYLLABUS
1. LEGAL ETHICS; ATTORNEYS; GROUNDS FOR SUSPENSION FROM THE
PRACTICE OF LAW; CASE AT BAR. The Court affirms the suspension from
the practice of law imposed by the Court of Appeals upon respondent Tuanda.
The Court of Appeals correctly ruled that "the offense [of] which she is found
guilty involved moral turpitude." We should add that violation of B.P. Blg. 22 is a
serious criminal offense which deleteriously affects public interest and public
order. Respondent was thus correctly suspended from the practice of law
because she had been convicted of crimes involving moral turpitude. Sections 27
and 28 of Rule 138 of the Revised Rules of Court provide as follows: "Sec.
27. Attorneys removed or suspended by Supreme Court on what grounds. A
member of the bar may be removed or suspended from his office as attorney by
the Supreme Court of any deceit, malpractice, or other gross misconduct in such
office, grossly immoral conduct, or by reason of his conviction of a crime
involving moral turpitude, or for any violation of the oath which he is required to
take before admission to practice, or for a wilful disobedience of any lawful order
of a superior court, or for corruptly or wilfully appearing as an attorney for a party
to a case without authority so to do. The practice of soliciting cases at law for the
purpose of gain either personally or through paid agents or brokers, constitutes
malpractice." "Sec. 28. Suspension of Attorney by the Court of Appeals or a
Court of First Instance. The Court of Appeals or a Court of First Instance may
suspend an attorney from practice for any of the causes named in the last
preceding section, and after such suspension such attorney shall not practice his
profession until further action of the Supreme Court in the premises."
2. ID.; ID.; ID.; CONVICTION OF A CRIME INVOLVING MORAL TURPITUDE,
VALID GROUND THEREFOR; RATIONALE. The crimes of which respondent
was convicted also import deceit and violation of her attorney's oath and the

Code of Professional Responsibility under both of which she was bound to "obey
the laws of the land." Conviction of a crime involving moral turpitude might not (as
in the instant case, violation of B.P. Blg. 22 does not) relate to the exercise of the
profession of a lawyer; however, it certainly relates to and affects the good moral
character of a person convicted of such offense. InMelendrez v. Decena, this
Court stressed that: "the nature of the office of an attorney at law requires that
she shall be a person of good moral character.This qualification is not only a
condition precedent to an admission to the practice of law; its continued
possession is also essential for remaining in the practice of law."

RESOLUTION

PER CURIAM :
p

In a Motion to Lift Order of Suspension dated 12 July 1989, respondent Fe

T. Tuanda, a member of the Philippine Bar, asks this Court to lift the suspension
from the practice of law imposed upon her by a decision of the Court of Appeals
dated 17 October 1988 in C.A.-G.R. CR No. 05093.
On 17 December 1983, respondent received from one Herminia A. Marquez
several pieces of jewelry, with a total stated value of P36,000.00, for sale on a
commission basis, with the condition that the respondent would turn over the
sales proceeds and return the unsold items to Ms. Marquez on or before 14
February 1984. Sometime in February 1984, respondent, instead of returning the
unsold pieces of jewelry which then amounted to approximately P26,250.00,
issued three checks: (a) a check dated 16 February 1984 for the amount of
P5,400.00; (b) a check dated 23 February 1984 also for the amount of
P5,400.00; and (c) a check dated 25 February 1984 for the amount of
P15,450.00. Upon presentment for payment within ninety (90) days after their
issuance, all three (3) checks were dishonored by the drawee bank, Traders
Royal Bank, for insufficiency of funds. Notwithstanding receipt of the notice of
dishonor, respondent made no arrangements with the bank concerning the

honoring of checks which had bounced and made no effort to settle her
obligations to Ms. Marquez.

LLpr

Consequently, four (4) informations were filed against respondent with the
Regional Trial Court of Manila: (a) one for estafa, docketed as Criminal Case No.
85-38358; and (b) three (3) for violation of B.P. Blg. 22, docketed respectively as
Criminal Cases Nos. 85-38359, 85-38360 and 85-38361. In due time, after trial,
the trial court rendered a decision dated 25 August 1987 which:
(a) acquitted respondent of the charge of estafa; and
(b) convicted respondent of violation of B.P. Blg. 22 in all three (3)
cases, and sentenced respondent to pay a fine of P6,000.00, with
subsidiary imprisonment in case of insolvency and to indemnify
the complainant in the amount of P5,400.00 in Criminal Case No.
85-38359;.
(c) to pay a fine of P6,000.00, with subsidiary imprisonment in
case of insolvency and to indemnify the complainant in the
amount of P5,400.00, in Criminal Case No. 85-38360; and
(d) to pay a fine of P16,000.00, with subsidiary imprisonment in
case of insolvency, and to indemnify the complainant in the
amount of P15,450.00, in Criminal Case No. 85-38361, and to
pay the costs in all three (3) cases.

On appeal, the Court of Appeals in C.A.-G.R. CR No. 05093 affirmed in toto the
decision of the trial court but, in addition, suspended respondent Tuandafrom the
practice of law. The pertinent portion of the decision reads as follows:
"For reasons above stated and finding the evidence sufficient to sustain
the conviction, the judgment is hereby AFFIRMED subject to this
modification.
It appearing from the records that the accused Fe Tuanda is a member
of the Bar, and the offense for (sic) which she is found guilty involved
moral turpitude, she is hereby ordered suspended from the practice of

law and shall not practice her profession until further action from the
Supreme Court, in accordance with Sections 27 and 28 of Rule 138 of
the Rules of Court. A copy of this decision must be forwarded to the
Supreme Court as required by Section 29 of the same Rule.
SO ORDERED." 1

On 16 December 1988, respondent filed a Notice of Appeal with the Court of

Appeals. The Court of Appeals, in a Resolution dated 9 January 1989, noted
respondent's Notice of Appeal and advised her "to address her Notice of Appeal
to the Honorable Supreme Court, the proper forum." On 1 February 1989,
respondent filed with this Court a Notice of Appeal.
In a Resolution dated 31 May 1989, the Supreme Court noted without action
respondent's Notice of Appeal and declared that the Court of Appeals' decision of
17 October 1988 had become final and executory upon expiration of the period
for filing a petition for review on certiorari on 16 December 1988. In that
Resolution, the Court found that respondent had lost her right to appeal by
certiorari when she posted with this Court a Notice of Appeal instead of filing a
petition for review on certiorari under Section 1, Rule 45 of the Revised Rules of
Court within the reglementary period.
In the instant Motion to Lift Order of Suspension, respondent states:
"that suspension from the practice of law is indeed a harsh if not a
painful penalty aggravating the lower court's penalty of fine
considering that accused-appellant's action on the case during the
trial on the merits at the lower court has always been motivated
purely by sincere belief that she is innocent of the offenses charged
nor of the intention to cause damage to the herein plaintiffappellee."

We read the above statement as a claim by the respondent that, she had not
violated her oath as a member of the Philippine Bar upon the ground that
when she issued the checks which bounced, she did not intend to cause
damage to complainant Ms. Marquez.

llcd

The Court affirms the suspension from the practice of law imposed by the Court
of Appeals upon respondent Tuanda. The Court of Appeals correctly ruled that
"the offense [of] which she is found guilty involved moral turpitude." We should
add that violation of B.P. Blg. 22 is a serious criminal offense which deleteriously
affects public interest and public order. In Lozano v. Martinez, 2 the Court
explained the nature of the offense of violation of B.P. Blg. 22 in the following
terms:
"xxx xxx xxx
The gravamen of the offense punished by B.P. Blg. 22 is the
act of making and issuing a worthless check or a check that is
dishonored upon its presentation for payment. xxx The thrust of the
law is to prohibit under pain of penal sanctions, the making of
worthless checks and putting them in circulation. Because of its
deleterious effects on the public interest, the practice is proscribed
by the law. The law punishes the act not as an offense against
property but an offense against public order.
xxx xxx xxx
The effects of the issuance of a worthless check transcends
the private interests of the parties directly involved in the
transaction and touches the interests of the community at
large. The mischief it creates is not only a wrong to the payee or
holder, but also an injury to the public. The harmful practice of
putting valueless commercial papers in circulation, multiplied a
thousand fold, can very well pollute the channels of trade and
commerce, injure the banking system and eventually hurt the
welfare of society and the public interest." 3 (Emphasis supplied)

Respondent was thus correctly suspended from the practice of law because she
had been convicted of crimes involving moral turpitude. Sections 27 and 28 of
Rule 138 of the Revised Rules of Court provide as follows:

"Sec. 27. Attorneys removed or suspended by Supreme Court on what

grounds. A member of the bar may be removed or suspended from
his office as attorney by the Supreme Court of any deceit, malpractice, or
other gross misconduct in such office, grossly immoral conduct, or by
reason of his conviction of a crime involving moral turpitude, or for any
violation of the oath which he is required to take before admission to
practice, or for a wilful disobedience of any lawful order of a superior
court, or for corruptly or wilfully appearing as an attorney for a party to a
case without authority so to do. The practice of soliciting cases at law for
the purpose of gain either personally or through paid agents or brokers,
constitutes malpractice." (Emphasis supplied)

"Sec. 28. Suspension of Attorney by the Court of Appeals or a Court of

First Instance. The Court of Appeals or a Court of First Instance may
suspend an attorney from practice for any of the causes named in the
last preceding section, and after such suspension such attorney shall not
practice his profession until further action of the Supreme Court in the
premises." (Emphasis supplied)

We should add that the crimes of which respondent was convicted also import
deceit and violation of her attorney's oath and the Code of Professional
Responsibility under both of which she was bound to "obey the laws of the
land." Conviction of a crime involving moral turpitude might not (as in the
instant case, violation of B.P. Blg. 22 does not) relate to the exercise of the
profession of a lawyer; however, it certainly relates to and affects the good
moral character of a person convicted of such offense. In Melendrez v.
Decena, 4 this Court stressed that:
"the nature of the office of an attorney at law requires that she shall be a
person of good moral character. This qualification is not only a condition
precedent to an admission to the practice of law; its continued
possession is also essential for remaining in the practice of law." 5

ACCORDINGLY, the Court Resolved to DENY the Motion to Lift Order of

Suspension. Respondent shall remain suspended from the practice of law until
further orders from this Court. A copy of this Resolution shall be forwarded to the
Bar Confidant and to the Integrated Bar of the Philippines and spread on the
record of respondent.

prLL

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco,

Padilla, Bidin, Sarmiento, Cortes and Grio-Aquino, JJ., concur.
Gutierrez, Jr., Medialdea and Regalado, JJ., concur in the result.
|||

(People v. Tuanda, A.C. No. 3360 (Resolution), January 30, 1990)

RE: ELMO S. ABAD,

1978

Successful

Bar

Examinee.

ATTY.

PROCOPIO S. BELTRAN, JR., President of the Philippine Trial

Lawyers

Association,

Inc., complainant, vs. ELMO S. ABAD respondent.

SYLLABUS
1. LEGAL ETHICS; ADMISSION TO THE BAR; ESSENTIAL REQUISITES TO
BE COMPLIED WITH BEFORE BECOMING A MEMBER THEREOF.
Respondent Abad should know that the circumstances which he has narrated do
not constitute his admission to the Philippine Bar and the right to practice law
thereafter. He should know that two essential requisites for becoming a lawyer
still had to be performed, namely: his lawyer's oath to be administered by this
Court and his signature in the Roll of Attorneys (Rule 138, Secs. 17 and 19,
Rules of Court).
2. REMEDIAL LAW; ASSUMING TO BE AN ATTORNEY AND ACTING AS
SUCH WITHOUT AUTHORITY CONSTITUTES CONTEMPT OF COURT.
Charged by Atty. Procopio S. Beltran, Jr., president of the Philippine Trial Lawyers
Association, Inc., of practicing law without having been previously admitted to the

Philippine Bar, Mr. Elmo S. Abad could not deny and had to admit the practice.
The proven charge against Abad constitutes contempt of court [Rule 71, Sec.
3(e), Rules of Court].

DECISION

ABAD SANTOS, J :
p

Charged by Atty. Procopio S. Beltran, Jr., president of the Philippine Trial Lawyers
Association, Inc., of practicing law without having been previously admitted to the
Philippine Bar, Mr. Elmo S. Abad could not deny and had to admit the
practice. In exculpation he gives the following lame explanation:

LLjur

"1. On July 23, 1979, respondent conformably with the Resolution of the
Honorable Supreme Court En Banc dated July 10, 1979, . . . prior to his
taking the Oath of Office as a member of the bar, paid his Bar Admission
Fee in the amount of P175.00 as shown by Official Receipt No. 8128792,
. . . paid his Certification Fee in the amount of P5.00 as shown by Official
Receipt No. 8128793, . . . and also paid his Membership Dues for the
year 1979-80 to the Integrated Bar of the Philippines as shown by Official
Receipt No. 83740, . . ."
"2. On July 26, 1979, Atty. Romeo Mendoza, the then Clerk of Court of
the Honorable Supreme Court, included the respondent as among those
taking the Oath of Office as Member of the Bar as shown by a Letter of
Request dated July 23, 1979, . . .
"3. At around Eleven O'clock in the morning of July 26, 1979, while
waiting for my turn to take my Oath as a member of the Bar, I was made
to sign my Lawyer's Oath by one of the Clerk in the Office of the Bar
Confidant and while waiting there, Atty. Romeo Mendoza told me that
Chief Justice, the Honorable Enrique M. Fernando wants to talk to me
about the Reply of Mr. Jorge Uy (Deceased) to my Answer to his

Complaint. The Honorable Chief Justice told me that I have to answer

the Reply and for which reason the taking of my Lawyer's Oath was
further suspended. . .
"4. On July 31, 1979, I filed my Reply to Mr. Jorge Uy's Answer with a
Prayer that the Honorable Supreme Court determines my fitness to be a
member of the Bar;
"5. While waiting for the appropriate action which the Honorable
Supreme Court may take upon my Prayer to determine my fitness to be a
member of the Bar, I received a letter from the Integrated Bar of the
Philippines, Quezon City Chapter dated May 10, 1980 informing the
respondent of an Annual General Meeting together with my Statement of
Account for the year 1980-1981, . . .
"6. Believing that with my signing of the Lawyer's Oath on July 26, 1979
and my Reply to Mr. Jorge Uy's (Deceased) Answer, the Honorable
Supreme Court did not ordered for the striking of my name in the Roll of
Attorneys with the Integrated Bar of the Philippines and therefore a
Member in Good Standing, I paid my membership due and other
assessments to the Integrated Bar of the Philippines, Quezon City
Chapter, as shown by Official Receipt No. 110326 and Official Receipt
No. 0948, . . . Likewise respondent paid his Professional Tax Receipt as
shown by Official Receipt No. 058033 and Official Receipt No.
4601685, . . .
"7. On February 28, 1981, the Integrated Bar of the Philippines, Quezon
City Chapter also included the name of the respondent as a Qualified
Voter for the election of officers and directors for the year 1981-1982, . . .
"8. Respondent's belief and good faith was further enhanced by the fact
that on January 8, 1981, Complainant Jorge Uy in SBC-607 died and
herein respondent submitted a verified Notice and Motion with the
Honorable Supreme Court on April 27, 1981; notifying the Court of this

fact with a prayer that herein respondent be allowed to take his Oath as
Member of the Bar;
"9. Thereafter, respondent was again assessed by the Integrated Bar for
his 1981-1982 membership due and other assessment for which the
undersigned paid as shown by Official Receipt No. 132734 and Official
Receipt No. 3363, . . .
"10. Respondent likewise paid his Professional Tax Receipt for 1981 as
shown by Official Receipt No. 3195776, . . .
"11. Respondent likewise has a Certificate of Membership in the
Integrated Bar of the Philippines as well as a Certificate of
Membership in Good Standing with the Quezon City Chapter of the
Integrated Bar of the Philippines, . . ."

Respondent Abad should know that the circumstances which he has narrated do
not constitute his admission to the Philippine Bar and the right to practice law
thereafter. He should know that two essential requisites for becoming a lawyer
still had to be performed, namely: his lawyer's oath to be administered by this
Court and his signature in the Roll of Attorneys. (Rule 138, Secs. 17 and 19,
Rules of Court.)

prcd

The proven charge against respondent Abad constitutes contempt of court (Rule
71, Sec. 3(e), Rules of Court.)
WHEREFORE, Mr. Elmo S. Abad is hereby fined Five Hundred (P500.00) pesos
payable to this Court within ten (10) days from notice failing which he shall serve
twenty-five (25) days imprisonment.
SO ORDERED.
Fernando, C.J., Teehankee, Makasiar, Concepcion Jr., Guerrero, De Castro,
Melencio-Herrera, Plana, Escolin Vasquez, Relova and Gutierrez, Jr., JJ., concur.
Aquino, J., is on leave.

|||

(In re Abad v. Abad, B.M. No. 139, March 28, 1983)

DONNA

MARIE

S. AGUIRRE, complainant, vs.

EDWIN

L. RANA, respondent.
Percival D. Castillo for complainant.
Raul Tito A. Estrella for respondent.
SYNOPSIS
Complainant charged respondent for unauthorized practice of law, violation of
law, grave misconduct and grave misrepresentation. The Court referred the case
to the Office of the Bar Confidant ("OBC").
The Supreme Court agreed with the findings of the OBC that respondent
engaged in the unauthorized practice of law and does not deserve admission to
the Philippine Bar. Respondent was engaged in the practice of law when he
appeared in the proceedings before the Municipal Board of Election Canvassers
and filed various pleadings without license to do so. Respondent called himself
"counsel," knowing fully well that he was not a member of the Bar. Having held
himself out as "counsel" knowing that he had no authority to practice law,
respondent has shown moral unfitness to be a member of the Philippine Bar. The
Court however, ruled, that the two other charges of violation of law and grave
misconduct were not supported by evidence.

HCacTI

SYLLABUS
1. LEGAL ETHICS; ATTORNEYS; PRACTICE OF LAW; RIGHT TO PRACTICE
LAW IS NOT A NATURAL OR CONSTITUTIONAL RIGHT BUT IS A PRIVILEGE.
The right to practice law is not a natural or constitutional right but is a privilege.

It is limited to persons of good moral character with special qualifications duly

ascertained and certified. The exercise of this privilege presupposes possession
of integrity, legal knowledge, educational attainment, and even public trust since
a lawyer is an officer of the court. A bar candidate does not acquire the right to
practice law simply by passing the bar examinations. The practice of law is a
privilege that can be withheld even from one who has passed the bar
examinations, if the person seeking admission had practiced law without a
license.
2. ID.; ID.; ADMISSION TO THE BAR; REQUISITES THEREOF. Respondent
here passed the 2000 Bar Examinations and took the lawyer's oath. However, it is
the signing in the Roll of Attorneys that finally makes one a full-fledged lawyer.
The fact that respondent passed the bar examinations is immaterial. Passing the
bar is not the only qualification to become an attorney-at-law. Respondent should
know that two essential requisites for becoming a lawyer still had to be
performed, namely: his lawyer's oath to be administered by this Court and his
signature in the Roll of Attorneys.

TEDAHI

DECISION

CARPIO, J :
p

The Case
Before one is admitted to the Philippine Bar, he must possess the requisite moral
integrity for membership in the legal profession. Possession of moral integrity is
of greater importance than possession of legal learning. The practice of law is a
privilege bestowed only on the morally fit. A bar candidate who is morally unfit
cannot practice law even if he passes the bar examinations.
The Facts
Respondent Edwin L. Rana ("respondent") was among those who passed the
2000 Bar Examinations.

On 21 May 2001, one day before the scheduled mass oath-taking of successful
bar examinees as members of the Philippine Bar, complainant Donna
Marie Aguirre ("complainant") filed against respondent a Petition for Denial of
Admission to the Bar. Complainant charged respondent with unauthorized
practice of law, grave misconduct, violation of law, and grave misrepresentation.
The Court allowed respondent to take his oath as a member of the Bar during the
scheduled oath-taking on 22 May 2001 at the Philippine International Convention
Center. However, the Court ruled that respondent could not sign the Roll of
Attorneys pending the resolution of the charge against him. Thus, respondent
took the lawyer's oath on the scheduled date but has not signed the Roll of
Attorneys up to now.
Complainant charges respondent for unauthorized practice of law and grave
misconduct. Complainant alleges that respondent, while not yet a lawyer,
appeared as counsel for a candidate in the May 2001 elections before the
Municipal Board of Election Canvassers ("MBEC") of Mandaon, Masbate.
Complainant further alleges that respondent filed with the MBEC a pleading
dated 19 May 2001 entitled Formal Objection to the Inclusion in the Canvassing
of Votes in Some Precincts for the Office of Vice-Mayor. In this pleading,
respondent represented himself as "counsel for and in behalf of Vice Mayoralty
Candidate, George Bunan," and signed the pleading as counsel for George
Bunan ("Bunan").
On the charge of violation of law, complainant claims that respondent is a
municipal government employee, being a secretary of the Sangguniang Bayan of
Mandaon, Masbate. As such, respondent is not allowed by law to act as counsel
for a client in any court or administrative body.
On the charge of grave misconduct and misrepresentation, complainant accuses
respondent of acting as counsel for vice mayoralty candidate George Bunan
("Bunan") without the latter engaging respondent's services. Complainant claims
that respondent filed the pleading as a ploy to prevent the proclamation of the
winning vice mayoralty candidate.

On 22 May 2001, the Court issued a resolution allowing respondent to take the
lawyer's oath but disallowed him from signing the Roll of Attorneys until he is
cleared of the charges against him. In the same resolution, the Court required
respondent to comment on the complaint against him.
In his Comment, respondent admits that Bunan sought his "specific assistance"
to represent him before the MBEC. Respondent claims that "he decided to assist
and advice Bunan, not as a lawyer but as a person who knows the law."
Respondent admits signing the 19 May 2001 pleading that objected to the
inclusion of certain votes in the canvassing. He explains, however, that he did not
sign the pleading as a lawyer or represented himself as an "attorney" in the
pleading.
On his employment as secretary of the Sangguniang Bayan, respondent claims
that he submitted his resignation on 11 May 2001 which was allegedly accepted
on the same date. He submitted a copy of the Certification of Receipt of
Revocable Resignation dated 28 May 2001 signed by Vice-Mayor Napoleon
Relox. Respondent further claims that the complaint is politically motivated
considering that complainant is the daughter of Silvestre Aguirre, the losing
candidate for mayor of Mandaon, Masbate. Respondent prays that the complaint
be dismissed for lack of merit and that he be allowed to sign the Roll of Attorneys.
On 22 June 2001, complainant filed her Reply to respondent's Comment and
refuted the claim of respondent that his appearance before the MBEC was only to
extend specific assistance to Bunan. Complainant alleges that on 19 May 2001
Emily Estipona-Hao ("Estipona-Hao") filed a petition for proclamation as the
winning candidate for mayor. Respondent signed as counsel for Estipona-Hao in
this petition. When respondent appeared as counsel before the MBEC,
complainant questioned his appearance on two grounds: (1) respondent had not
taken his oath as a lawyer; and (2) he was an employee of the government.
Respondent filed a Reply (Re: Reply to Respondent's Comment) reiterating his
claim that the instant administrative case is "motivated mainly by political
vendetta."

On 17 July 2001, the Court referred the case to the Office of the Bar Confidant
("OBC") for evaluation, report and recommendation.
OBC's Report and Recommendation
The OBC found that respondent indeed appeared before the MBEC as counsel
for Bunan in the May 2001 elections. The minutes of the MBEC proceedings
show that respondent actively participated in the proceedings. The OBC likewise
found that respondent appeared in the MBEC proceedings even before he took
the lawyer's oath on 22 May 2001. The OBC believes that respondent's
misconduct casts a serious doubt on his moral fitness to be a member of the Bar.
The OBC also believes that respondent's unauthorized practice of law is a
ground to deny his admission to the practice of law. The OBC therefore
recommends that respondent be denied admission to the Philippine Bar.
On the other charges, OBC stated that complainant failed to cite a law which
respondent allegedly violated when he appeared as counsel for Bunan while he
was a government employee. Respondent resigned as secretary and his
resignation was accepted. Likewise, respondent was authorized by Bunan to
represent him before the MBEC.
The Court's Ruling
We agree with the findings and conclusions of the OBC that respondent engaged
in the unauthorized practice of law and thus does not deserve admission to the
Philippine Bar.
Respondent took his oath as lawyer on 22 May 2001. However, the records show
that respondent appeared as counsel for Bunan prior to 22 May 2001, before
respondent took the lawyer's oath. In the pleading entitled Formal Objection to
the Inclusion in the Canvassing of Votes in Some Precincts for the Office of ViceMayor dated 19 May 2001, respondent signed as "counsel for George Bunan." In
the first paragraph of the same pleading respondent stated that he was
the "(U)ndersigned Counsel for, and in behalf of Vice Mayoralty Candidate,
GEORGE T. BUNAN." Bunan himself wrote the MBEC on 14 May 2001 that he

had "authorized Atty. Edwin L. Rana as his counsel to represent him" before the
MBEC and similar bodies.
On 14 May 2001, mayoralty candidate Emily Estipona-Hao also "retained"
respondent as her counsel. On the same date, 14 May 2001, Erly D. Hao
informed the MBEC that "Atty. Edwin L. Rana has been authorized by REFORMA
LM-PPC as the legal counsel of the party and the candidate of the said party."
Respondent himself wrote the MBEC on 14 May 2001 that he was entering
his "appearance as counsel for Mayoralty Candidate Emily Estipona-Hao and for
the REFORMA LM-PPC." On 19 May 2001, respondent signed as counsel for
Estipona-Hao in the petition filed before the MBEC praying for the proclamation
of Estipona-Hao as the winning candidate for mayor of Mandaon, Masbate.

All these happened even before respondent took the lawyer's oath. Clearly,
respondent engaged in the practice of law without being a member of the
Philippine Bar.
In Philippine Lawyers Association v. Agrava, 1 the Court elucidated that:
The practice of law is not limited to the conduct of cases or litigation in
court; it embraces the preparation of pleadings and other papers incident
to actions and special proceedings, the management of such actions
and proceedings on behalf of clients before judges and courts, and in
addition, conveyancing. In general, all advice to clients, and all action
taken for them in matters connected with the law, incorporation services,
assessment and condemnation services contemplating an appearance
before a judicial body, the foreclosure of a mortgage, enforcement of a
creditor's claim in bankruptcy and insolvency proceedings, and
conducting proceedings in attachment, and in matters of estate and
guardianship have been held to constitute law practice, as do the
preparation and drafting of legal instruments, where the work done
involves the determination by the trained legal mind of the legal effect of
facts and conditions. (5 Am. Jur. p. 262, 263). (Italics supplied) . . .

In Cayetano v. Monsod, 2 the Court held that "practice of law" means any activity,
in or out of court, which requires the application of law, legal procedure,
knowledge, training and experience. To engage in the practice of law is to
perform acts which are usually performed by members of the legal profession.
Generally, to practice law is to render any kind of service which requires the use
of legal knowledge or skill.
Verily, respondent was engaged in the practice of law when he appeared in the
proceedings before the MBEC and filed various pleadings, without license to do
so. Evidence clearly supports the charge of unauthorized practice of law.
Respondent called himself "counsel" knowing fully well that he was not a member
of the Bar. Having held himself out as "counsel" knowing that he had no authority
to practice law, respondent has shown moral unfitness to be a member of the
Philippine Bar. 3
The right to practice law is not a natural or constitutional right but is a privilege. It
is limited to persons of good moral character with special qualifications duly
ascertained and certified. The exercise of this privilege presupposes possession
of integrity, legal knowledge, educational attainment, and even public trust 4 since
a lawyer is an officer of the court. A bar candidate does not acquire the right to
practice law simply by passing the bar examinations. The practice of law is a
privilege that can be withheld even from one who has passed the bar
examinations, if the person seeking admission had practiced law without a
license. 5
The regulation of the practice of law is unquestionably strict. In Beltran,
Jr. v. Abad, 6 a candidate passed the bar examinations but had not taken his oath
and signed the Roll of Attorneys. He was held in contempt of court for practicing
law even before his admission to the Bar. Under Section 3 (e) of Rule 71 of the
Rules of Court, a person who engages in the unauthorized practice of law is
liable for indirect contempt of court. 7
True, respondent here passed the 2000 Bar Examinations and took the lawyer's
oath. However, it is the signing in the Roll of Attorneys that finally makes one a

full-fledged lawyer. The fact that respondent passed the bar examinations is
immaterial. Passing the bar is not the only qualification to become an attorney-atlaw. 8 Respondent should know that two essential requisites for becoming a
lawyer still had to be performed, namely: his lawyer's oath to be administered by
this Court and his signature in the Roll of Attorneys. 9
On the charge of violation of law, complainant contends that the law does not
allow respondent to act as counsel for a private client in any court or
administrative body since respondent is the secretary of the Sangguniang Bayan.
Respondent tendered his resignation as secretary of the Sangguniang Bayan
prior to the acts complained of as constituting unauthorized practice of law. In his
letter dated 11 May 2001 addressed to Napoleon Relox, vice mayor and presiding
officer of the Sangguniang Bayan, respondent stated that he was resigning
"effective upon your acceptance." 10 Vice-Mayor Relox accepted respondent's
resignation effective 11 May 2001. 11 Thus, the evidence does not support the
charge that respondent acted as counsel for a client while serving as secretary of
the Sangguniang Bayan.
On the charge of grave misconduct and misrepresentation, evidence shows that
Bunan indeed authorized respondent to represent him as his counsel before the
MBEC and similar bodies. While there was no misrepresentation, respondent
nonetheless had no authority to practice law.
WHEREFORE, respondent Edwin L. Rana is DENIED admission to the
Philippine Bar.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing YnaresSantiago, Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio Morales, Callejo,
Sr. and Azcuna, JJ., concur.
|||

(Aguirre v. Rana, B.M. No. 1036, June 10, 2003)

In the matter of the IBP Membership Dues Delinquency

of Atty. MARCIAL A. EDILLION (IBP Administrative Case
No. MDD-1).

SYNOPSIS
Atty. Marcial A. Edillon was disbarred on August 3, 1978 for his refusal to pay
membership fees due the Integrated Bar of the Philippines. Since then, he
has sought reinstatement, invoking his state of health, his advanced age and
the welfare of former clients who still rely on him for counsel.
The Court, considering the change of his attitude and the lapse of
two years since he was barred from practicing his profession, ordered his
reinstatement making certain that he pays his dues and accepts the
Court's competence to regulate the legal profession and integrate the bar.
SYLLABUS
1. LEGAL ETHICS; ATTORNEYS; ORGANIZATION OF THE INTEGRATED BAR OF
THE PHILIPPINES LEGALLY UNOBJECTIONABLE. The integration of the
Philippine Bar raises no constitutional question and is therefore legally
unobjectionable, and within the context of contemporary conditions in the
Philippines, has become an imperative means to raise the standards of the
legal profession, improve the administration of justice, and enable the Bar to
discharge its public responsibility fully and effectively.
2. ID.; ID.; ID.; EFFECT OF A MEMBER'S NON-PAYMENT OF REQUIRED FEES.
The IBP Board of Governors has the authority to recommend to the Supreme
Court the removal of a delinquent member's name from the Roll of Attorneys
as found in Rule of Court: "Effect of non-payment of dues. Subject to the
provisions of Section 12 of this Rule, default in the payment of annual dues
for six months shall warrant suspension of membership in the Integrated Bar,
and default in such payment for one year shall be ground for the removal of

the same of the delinquent member from the Roll of Attorneys." (Section 10,
Rule of Court 139-A).
3. ID.; ID.; DISBARMENT; REINSTATEMENT ORDERED IN THE CASE AT BAR.
The penalty of disbarment imposed on Atty. Edillon for his obstinate refusal
to pay his membership dues was more than justified. Since then, however,
there were other communications to the Court where a different attitude on
his part was discernible. The tone of defiance was gone and circumstances of
a mitigating character invoked the state of his health and his advanced
age. He likewise spoke of the welfare of former clients who still rely on him
for counsel, their confidence apparently undiminished. The Court, in the light
of the above, felt reinstatement could be ordered after it made certain that
there was full acceptance on his part of the competence of the Tribunal in the
exercise of its plenary power to regulate the legal profession and can
integrate the bar and that the dues were duly paid.
4. ID.; ID.; ID.; EXERCISE OF THE POWER TO DISCIPLINE. As in the case of
the inherent power to punish for contempt and paraphrasing the dictum of
Justice Malcolm in Villavicencio v. Lukban, 39 Phil. 778 (1919), the power to
discipline, especially if amounting to disbarment, should be exercised on the
preservative and not on the vindictive principle.
5. ID.; ID.; MEMBERSHIP IN THE BAR, A PRIVILEGE. Membership in the bar
is a privilege burdened with conditions. Failure to abide by any of them
entails the loss of such privilege if the gravity thereof warrants such drastic
move. Thereafter a sufficient time having elapsed and after actuations
evidencing that there was due contrition on the part of the transgressor, he
may once again be considered for the restoration of such a privilege.

DECISION

FERNANDO, J p:

The full and plenary discretion in the exercise of its competence to

reinstate a disbarred member of the bar admits of no doubt. All the
relevant factors bearing on the specific case, public interest, the integrity
of the profession and the welfare of the recreant who had purged himself
of his guilt are given their due weight. Respondent Marcial A. Edillon was
disbarred on August 3, 1978, 1 the vote being unanimous with the late
Chief Justice Castro as ponente. From June 5, 1979, he had repeatedly
pleaded that he be reinstated. The minute resolution dated October 23,
1980, granted such prayer. It was there made clear that it "is without
prejudice to issuing an extended opinion." 2
Before doing so, a recital of the background facts that led to the
disbarment of respondent may not be amiss. As set forth in the resolution
penned by the late Chief Justice Castro: "On November 29, 1975, the
Integrated Bar of the Philippines (IBP for short Board of Governors
unanimously adopted Resolution No. 75-65 in Administrative Case No.
MDD-1 (In the Matter of the Membership Dues Delinquency of Atty. Marcial
A. Edillon) recommending to the Court the removal of the name of the
respondent from its Roll of Attorneys for 'stubborn refusal to pay his
membership

dues'

to

the

IBP

since

the

latter's

constitution

notwithstanding due notice. On January 21, 1976, the IBP, through its then
President Liliano B. Neri, submitted the said resolution to the Court for
consideration and approval, pursuant to paragraph 2, Section 24, Article
III of the By-Laws of the IBP, which reads: '. . . Should the delinquency
further continue until the following June 29, the Board shall promptly
inquire into the cause or causes of the continued delinquency and take
whatever action it shall deem appropriate, including a recommendation to
the Supreme Court for the removal of the delinquent member's name
from the Roll of Attorneys. Notice of the action taken shall be sent by
registered mail to the member and to the Secretary of the Chapter
concerned.' On January 27, 1976, the Court required the respondent to
comment on the resolution and letter adverted to above he submitted his
comment on February 23, 1976, reiterating his refusal to pay the

membership fees due from him. On March 2, 1976, the Court required the
IBP President and the IBP Board of Governors to reply to Edillon's
comment: On March 24, 1976, they submitted a joint reply. Thereafter, the
case was set for hearing on June 3, 1976. After the hearing, the parties
were required to submit memoranda in amplification of their oral
arguments. The matter was thenceforth submitted for resolution." 3
Reference was then made to the authority of the IBP Board of
Governors to recommend to the Supreme Court the removal of a
delinquent member's name from the Roll of Attorneys as found in Rules of
Court: "Effect of non-payment of dues. Subject to the provisions of
Section 12 of this Rule, default in the payment of annual dues for six
months shall warrant suspension of membership in the Integrated Bar,
and default in such payment for one year shall be a ground for the
removal of the name of the delinquent member from the Roll of
Attorneys." 4
The

submission

of

respondent Edillion as

summarized

in

the

aforesaid resolution "is that the above provisions constitute an invasion of

his constitutional rights in the sense that he is being compelled, as a precondition to maintaining his status as a lawyer in good standing, to be a
member of the IBP and to pay the corresponding dues, and that as a
consequence of this compelled financial support of the said organization
to which he is admittedly personally antagonistic, he is being deprived of
the rights to liberty and property guaranteed to him by the Constitution.
Hence, the respondent concludes, the above provisions of the Court Rule
and of the IBP By-Laws are void and of no legal force and effect." 5 It was
pointed out in the resolution that such issues were "raised on a previous
case before the Court, entitled 'Administrative Case No. 526, In the Matter
of the Petition for the Integration of the Bar of the Philippines, Roman
Ozaeta, et al., Petitioners.' The Court exhaustively considered all these
matters in that case in its Resolution ordaining the integration of the Bar
of the Philippines, promulgated on January 9, 1973," 6 The unanimous

conclusion reached by the Court was that the integration of the Philippine
Bar

raises

no

constitutional

question

and

is

therefore

legally

unobjectionable, "and, within the context of contemporary conditions in

the Philippines, has become an imperative means to raise the standards
of the legal profession, improve the administration of justice, and enable
the Bar to discharge its public responsibility fully and effectively." 7
As mentioned at the outset, the vote was unanimous. From the time
the decision was rendered, there were various pleadings filed by
respondent for reinstatement starting with a motion for reconsideration
dated August 19, 1978. Characterized as it was by persistence in his
adamantine refusal to admit the full competence of the Court on the
matter, it was not unexpected that it would be denied So it turned
out. 8 It was the consensus that he continued to be oblivious to certain
basic juridical concepts, the appreciation of which does not even require
great depth of intellect. Since respondent could not be said to be that
deficient in legal knowledge and since his pleadings in other cases coming
before this Tribunal were quite literate, even if rather generously sprinkled
with invective for which he had been duly taken to task, there was the
impression that his recalcitrance arose from plain and sheer obstinacy.
Necessarily, the extreme penalty of disbarment visited on him was more
than justified. llcd
Since then, however, there were other communications to this Court
where a different attitude on his part was discernible. 9 The tone of
defiance was gone and circumstances of a mitigating character invoked
the state of his health and his advanced age. He likewise spoke of the
welfare of former clients who still rely on him for counsel, their confidence
apparently undiminished. For he had in his career been a valiant, if at
times unreasonable, defender of the causes entrusted to him.
This Court, in the light of the above, felt that reinstatement could be
ordered and so it did in the resolution of October 23, 1980. It made
certain that there was full acceptance on his part of the competence of

this Tribunal in the exercise of its plenary power to regulate the legal
profession and can integrate the bar and that the dues were duly paid.
Moreover, the fact that more than two years had elapsed during which he
was barred from exercising his profession was likewise taken into account.
It may likewise be said that as in the case of the inherent power to punish
for contempt and paraphrasing the dictum of Justice Malcolm in
Villavicencio v. Lukban, 10 the power to discipline, especially if amounting
to disbarment, should be exercised on the preservative and not on the
vindictive principle. 11

One last word. It has been pertinently observed that there is no

irretrievable finality as far as admission to the bar is concerned. So it is
likewise as to loss of membership. What must ever be borne in mind is
that membership in the bar, to follow Cardozo, is a privilege burdened
with conditions. Failure to abide by any of them entails the loss of such
privilege if the gravity thereof warrants such drastic move. Thereafter a
sufficient time having elapsed and after actuations evidencing that there
was due contrition on the part of the transgressor, he may once again be
considered for the restoration of such a privilege. Hence, our resolution of
October 23, 1980. LLphil
The Court restores to membership to the bar Marcial A. Edillon.
Teehankee, Barredo, Makasiar, Concepcion Jr., Fernandez, Guerrero,
Abad Santo
||| (In Re: Edillion, AC-1928, December 19, 1980)

LAWYERS DUTIES TO SOCIETY

JORGE MONTECILLO and QUIRICO DEL MAR, petitioners, vs.

FRANCISCO M. GICA, MAGNO S. GATMAITAN, JOSE N.
LEUTERIO, and RAMON G. GAVIOLA, Justices of the Court of
Appeals, respondents. In Re Quirico del Mar, For Disciplinary
action as member of the Philippine Bar, respondent.

DECISION

ESGUERRA, J :
p

Petitioner Atty. Quirico del Mar of Cebu City in G. R. No. L-36800, and as
respondent in contempt proceedings both in the Court of Appeals and in this
Court, virtually focused the limelight on himself and relegated to insignificance
the limelight on himself and relegated to insignificance the principal issue raised
in the petition for certiorari to review the entitled "Francisco M. Gica vs. Hon.
Santiago O. Taada, et al" which was denied due course by this Court's
resolution dated May 14, 1973, for lack of merit.
Although the petition for certiorari has been denied, it becomes imperatively
necessary to elucidate upon the antecedents of this case even if Our only
justification in so doing is to seek a reason or motive for the acts of contempt
perpetrated by respondent Quirico del Mar that might serve to lighten the
enormity of his wrongdoing as a member of the Bar.
As a result of an alleged slander committed by Jorge Montecillo on Francisco
M. Gica (the former allegedly calling the latter "stupid" or a "fool"), Mr. Gicafiled a
criminal complaint for oral defamation against Montecillo (Criminal Case No. R28782 in Branch VII of the Cebu City Court) and a case for damages arising from
the same incident (Civil Case No. R-13075 in Branch VI of the Cebu City
Court). Montecillo was acquitted in Criminal Case No. R-28782, and in Civil Case
No. R-13075, the Cebu City Court found that Montecillo did not call Gica "stupid".
Finding the counter-claim of Montecillo meritorious, the City Court rendered

judgment against Gica for him to pay Montecillo five hundred pesos as moral
damages, two hundred pesos as compensatory damages and three hundred
pesos as attorney's fees, plus costs.
Francisco Gica appealed from the decision of the City Court of Cebu in Civil
Case No. R-13075 to the Court of First Instance of Cebu presided by Hon.
Santiago O. Taada, but the Court of First Instance upheld the decision of the
City Court. The case was then elevated to the Court of Appeals by petition for
review by petitioner Francisco M. Gica and it was docketed therein as CA-G. R.
No. 46504-R.
The Fourth Division of the Court of Appeals in a decision penned by the Hon.
Magno S. Gatmaitan and concurred in by Associate Justices Jose N. Leuterio
and Ramon G. Gaviola, Jr. (promulgated on Sept. 27, 1972), reversed the
decision of the Court of First Instance of Cebu; ruled in favor of petitioner Gicaon
the ground that the preponderance of evidence favored petitioner Francisco
M. Gica on the principle that positive must prevail over the negative evidence,
and that "some words must have come from Montecillo's lips that were insulting
to Gica". The appellate court concluded that its decision is a vindication
of Gica and, instead, awarded him five hundred pesos as damages.
It is from this point that trouble began for respondent Atty. Quirico del Mar when,
as counsel for Montecillo, he moved for a reconsideration of the Appellate Court's
decision with a veiled threat by mentioning the provisions of the Revised Penal
Code on "Knowingly rendering unjust judgment" and "judgment rendered through
negligence", and the innuendo that the Court of Appeals allowed itself to be
deceived. When the Appellate Court denied the motion for reconsideration in its
Resolution of October 24, 1972, it observed that the terminology of the motion
insinuated that the Appellate Court rendered an unjust judgment, that it abetted a
falsification and it permitted itself to be deceived. It admonished Atty. del Mar to
remember that threats and abusive language cannot compel any court of justice
to grant reconsideration. Respondent del Mar persisted and in his second motion
for reconsideration, filed without leave of court, made another threat by stating
that "with almost all penal violations placed under the jurisdiction of the President

of the Philippines, particularly Articles 171, 204 and 205 of the Revised Penal
Code, as Commander in Chief of the AFP, by virtue of the proclamation of martial
law, the next appeal that will be interposed, will be to His Excellency, the
President of the Philippines."
The Appellate Court in its resolution of Nov. 27, 1972, noticed that
notwithstanding its admonition in its resolution of Oct. 24, 1972, for Atty. del Mar
to refrain from abusive language and threats, he reiterated his threats, and that
the Appellate Court, impelled to assert its authority, ordered respondent del Mar
to explain within 10 days (and to appear on January 10, 1973) why he should not
be punished for contempt of court.
On December 5, 1972, respondent del Mar made a written explanation wherein
he said that the Appellate Court could not be threatened and he was not making
any threat but only informing the Appellate Court of the course of action he would
follow. On the same date, respondent sent a letter to the Justices of the 4th
Division of the Court of Appeals informing them that he sent a letter to the
President of the Philippines, furnishing them a copy thereof, and requesting the
Justices to take into consideration the contents of said letter during the hearing of
the case scheduled for January 10, 1973. Not content with that move, on
December 8, 1972, respondent sent another letter to the same Justices of the
Court of Appeals wherein he reminded them of a civil case he instituted against
Justices of the Supreme Court for damages in the amount of P200,000 for a
decision rendered not in accordance with law and justice, stating that he would
not like to do it again but would do so if provoked. We pause here to observe that
respondent del Mar seems to be of that frame of mind whereby he considers as
in accordance with law and justice whatever he believes to be right in his own
opinion and as contrary to law and justice whatever does not accord with his
views. In other words, he would like to assume the role of this Court, personally
and individually, in the interpretation and construction of the laws, evaluation of
evidence and determination of what is in accordance with law and justice.
The documented incidents as narrated in the Appellate Court's Resolution of
March 5, 1973, cannot more eloquently depict the very manifest and repeated

threats of respondent del Mar to bludgeon the Justices of the Fourth Division into
reconsidering its decision which happened to be adverse to respondent's client.
Respondent del Mar, instead of presenting lucid and forceful arguments on the
merits of his plea for a reconsideration to convince the Justices of the Fourth
Division of the alleged error in their decision, resorted to innuendos and veiled
threats, even casting downright aspersion on the Justices concerned by
insinuating that for their decision they could be criminally and civilly liable for
knowingly rendering unjust judgment, or doing it through ignorance.
We quote with approval this portion of the Appellate Court's Resolution (March 5,
1973):
"A just man can never be threatened, p. 145, rollo, is not at all true; any
man, just or unjust, can be threatened; if he is unjust, he will succumb, if
he is just, he will not, but the offense is committed, whether the threats
do or do not succeed. As to his (respondent del Mar's) reference to the
New Society, p. 150, in his letter to his Excellency, complaining against
those justices, let it be said that precisely it was under the Former
Society that there had been so much disrespect for the constituted
authorities, there was abuse, worse than abuse, there was arrogant
abuse, of the so-called civil liberties, against the authorities, including the
courts, not excluding even the President; it is this anarchy that is the
program to cure in the New."

This Resolution of the Appellate Court of March 5, 1973, fittingly concluded that
"counsel del Mar is found guilty of contempt and condemned to pay a fine of
P200.00 and ordered suspended from the practice of law and pursuant to Sec. 9
of Rule 139, let certified copies of these papers be elevated to the Honorable
Supreme Court". We upheld the Court of Appeals and gave full force and effect
to this order of suspension from the practice of law when in Our resolution dated
Nov. 19, 1973, the Judicial Consultant of this Court was directed to circularize all
courts about the order of the Court of Appeals suspending Atty. Quirico del Mar
from the practice of law.

Not satisfied with the wrong that he had already done against Associate Justices
Magno S. Gatmaitan, Jose N. Leuterio and Ramon Gaviola, Jr., respondent del
Mar sued the three Justices for damages in Civil Case No. R-13277 of the Court
of First Instance of Cebu, trying to hold them liable for their decision in CA-G. R.
No. 46504-R; that the case for damages (R-13277) was terminated by
compromise agreement after Mr. del Mar himself moved for the dismissal of his
complaint, apologized to the Court of Appeals and the Justices concerned, and
agreed to pay nominal moral damages in favor of the defendants-justices. This is
the undeniable indication that respondent del Mar did not only threaten the three
Justices of the Appellate Court but he actually carried out his threat, although he
did not succeed in making them change their minds in the case they decided in
accordance with the exercise of their judicial discretion emanating from pure
conviction.
To add insult to injury, respondent del Mar had the temerity to file his motion on
October 10, 1973, before Us, asking that his suspension from the practice of law
imposed by the Court of Appeals be ignored because of the amicable settlement
reached in Civil Case No. R-13277 of the Court of First Instance of Cebu which
was the action for damages filed against the three Justices of the Appellate
Court.

Respondent del Mar's ire at the Appellate Court, fanned by the wind of
frustration, turned against Us when We denied on May 14, 1973, his petition for
review on certiorari of the decision of the Appellate Court, G. R. No. L-36800, for
on May 25, 1973, he filed his motion for reconsideration and wrote a letter
addressed to the Clerk of this Court requesting the names of the Justices of this
Court who supported the resolution denying his petition, together with the names
of the Justices favoring his motion for reconsideration. This motion for
reconsideration We denied for lack of merit in Our resolution dated June 15,
1973. He, then, filed a manifestation dated July 1, 1973, before Us, stating
brazenly, among other things, "I can at this time reveal to you that, had your Clerk
of Court furnished me with certified true copies of the last two Resolutions of the

Supreme Court confirming the decision of the Court of Appeals in the case
entitled Francisco M. Gica vs. Jorge Montecillo, I would have filed against the
Justices supporting the same, civil and criminal suits as I did to the Justices of
the Court of Appeals who, rewarding the abhorent falsification committed by
Mr. Gica, reversed for him the decisions of the City Court and the Court of First
Instance of Cebu, not with a view to obtaining a favorable judgment therein
but for the purpose of exposing to the people the corroding evils extant in our
Government, so that they may well know them and work for their extermination"
(Emphasis supplied. In one breath and in a language certainly not complimentary
to the Appellate Court and to Us, respondent del Mar again made his veiled
threat of retribution aimed at the Appellate Court and at Us for Our judicial acts in
CA-G. R. No. 46504-R and G. R. No. L-36800.
Our immediate reaction to this manifestation, dictated by the impulse of placing
on a pedestal beyond suspicion the integrity and honor of this Court and that of
any of our other courts of justice, was to require by Resolution of July 16, 1973,
respondent del Mar to show cause why disciplinary action should not be taken
against him for the contemptuous statements contained in his manifestation.
At this juncture, We pause to reexamine the act of the Appellate Court in CA-G.
R. No. 46504-R and our own in G. R. No. L-36800 to determine what error we
might have committed to generate such a vengeful wrath of respondent del Mar
which drove him to make his contemptuous statements.
The crucial issue in the case of oral defamation filed by Francisco
M. Gica against Jorge Montecillo is as to what was the statement really uttered
byMontecillo on the occasion in question "binuang man gud na" (That act is
senseless or done without thinking) or "buang man gud na siya" (He is foolish or
stupid). If the statement uttered was the former, Montecillo should be exonerated;
if the latter, he would be liable. The Appellate Court on evaluating the evidence
ruled that the preponderance thereof favored Gica, "on the principle that the
positive evidence must prevail over the negative" and, therefore, what was really
uttered by Montecillo on that occasion was "buang man gud na siya" (He is
foolish or stupid), thus making him liable for oral defamation. When We denied in

G. R. No. L-36800 the petition for review on certiorari of the Appellate Court's
decision in CA-G. R. No. 46504-R, We did so because We could find no reason
for disturbing the Appellate Court's finding and conclusion on the aforementioned
lone question of fact which would warrant overturning its decision.
On July 13, 1973, Our resolution of May 14, 1973, denying the petition for review
on certiorari of the decision of the Appellate Court in CA-G. R. No. 46504-R,
became final and executory and the Court of Appeals was so informed.
To Our resolution of July 16, 1973, requiring respondent del Mar to show cause
why he should not be disciplined for his statements contained in his manifestation
of July 1, 1973, he submitted an explanation dated August 1, 1973, wherein he
stated that ". . . , he is attaching hereto the criminal case he filed with the
President of the Philippines (copy marked as Annex "A") and the civil case he
instituted in the Court of First Instance of Cebu (copy marked as Annex "B")
against Justices Magno S. Gatmaitan, Jose N. Leuterio and Ramon G. Gaviola,
Jr., which embody the corroding evils he complained of as extant in the
Government needing correction. He would hove followed suit were it not for the
fact that he is firmly convinced that human efforts in this direction will be
fruitless. As manifested, he, therefore, decided to retire from a life of militancy to
a life of seclusion, leaving to God the filling-up of human deficiencies" (Emphasis
supplied)
This so-called explanation is more, in its tenor, of a defiant justification of his
contemptuous statements contained in the manifestation of July 1, 1973. It
contents reveal a continued veiled threat against the Justices of this Court who
voted to deny del Mar's petition for review on certiorari of the decision of the
Court of Appeals in CA-G. R. No. 46504-R.
Our resolution of September 4, 1913, required respondent Atty. Quirico del Mar to
appear personally at the hearing of his explanation on November 5, 1973. On
September 26, 1973, respondent filed an additional explanation with this Court,
wherein he stated, among other things: "Graft, corruption and injustice are
rampant in and outside of the Government. It is this state of things that convinced

me that all human efforts to correct and/or reform the said evils will be fruitless
and, as stated in my manifestation to you, I have already decided to retire from a
life of militancy to a life of seclusion, leaving to God the filling-up of human
deficiencies."
Again We noticed that the tenor of this additional explanation is a toned-down
justification (as compared to his explanation of August 1, 1973) of his previous
contemptuous statements without even a hint of apology or regret. Respondent is
utilizing what exists in his mind as state of graft, corruption and injustice allegedly
rampant in and outside of the government as justification for his contemptuous
statements. In other words, he already assumed by his own contemptuous
utterances that because there is an alleged existence of rampant corruption,
graft, and injustice in and out of the government, We, by Our act in G. R. No. L36800, are among the corrupt, the grafters and those allegedly committing
injustice. We are at a complete loss to follow respondent del Mar's logic and We
certainly should, with understanding condescension, commiserate in the pitiable
state of mind of a brother in the legal profession who seems to have his
reasoning and sense of proportion blurred or warped by an all-consuming
obsession emanating from a one-track mind that only his views are absolutely
correct and those of others are all wrong.
When this Court in the resolution dated November 19, 1973, directed the Judicial
Consultant to circularize to all courts concerning the order of the Court of
Appeals suspending Atty. Quirico del Mar from the practice of law, respondent del
Mar filed a motion for reconsideration on December 12, 1973, requesting Us to
reconsider said directive. In Our resolution dated December 17, 1973,
respondent del Mar, after he had been interpellated by the Court, was given a
period of five days to submit a memorandum in support of his explanation. In
view of respondent's manifestation that there was no need for further
investigation of the facts involved, in accordance with Section 29 of Rule 138, We
resolved that the matter be deemed submitted for decision.
In the memorandum entitled "Explanation" dated December 20, 1973,
respondent del Mar stated that he suffered repeated strokes of high blood

pressure which rendered him dizzy and unstable mentally and physically; that his
sight is blurred and his reasoning is faulty; he easily forgets things and cannot
readily correlate them; that for any and all mistakes he might have committed he
asked for forgiveness; he reiterated that "blunders" were committed by the Court
of Appeals in its decision and that the Justices thereof knowingly rendered the
same in violation of Article 204 of the Penal Code; he persisted in his view that
the Court of Appeals committed an error in its decision; justified his act of
invoking Article 204 of the Penal Code in trying to make the Appellate Justices
liable; that he was high in his academic and scholastic standing during his school
days; that "with all the confusion prevailing nowadays, the undersigned has
decided for reasons of sickness and old age to retire from the practice of law. He
hopes and expects that, with the approval thereof by the Supreme Court, he
could have himself released from the obligation he has contracted with his clients
as regards all his pending cases."
It is Our observation that the tenor of this explanation although pleading mental
and physical ailment as a mitigation of the contemptuous acts, is still that of
arrogant justification for respondent's previous statements. We quote:
"The undersigned was asked if he had not filed against the Justices of
the Supreme Court a case for damages against them. He answered in
the affirmative, but the case was dismissed by Judge Villasor, of the
Court of First Instance of Cebu, because of an American ruling that a
justice of the Supreme Court of the Philippines cannot he civilly held
liable. The ruling cited was rendered during the American regime in the
Philippines which was still subject to the jurisdiction of the American
laws. But the Philippines is now independent and Article 204 of the
Penal Code still remains incorporated therein for observance and
fulfillment. Up to now, there is not yet any definite ruling of the Supreme
Court thereon".

While still persistently justifying his contemptuous statements and at the same
time pleading that his physical and mental ailment be considered so that We may
forgive respondent del Mar, he shrewdly stated at the end of his explanation that

he has decided for reasons of sickness and old age to retire from the practice of
law, in practical anticipation of whatever penalty We may decide to impose on him
and thus making it appear that he has voluntarily done so with honor and in
complete evasion of whatever this Court may decide to do in this case.

With full realization that a practicing lawyer and officer of the court facing
contempt proceedings cannot just be allowed to voluntarily retire from the
practice of law, an act which would negate the inherent power of the court to
punish him for contempt in defense of its integrity and honor, We resolved, by
resolution of January 10, 1974, to deny said prayer of Atty. del Mar without
prejudice to his making arrangement directly with his clients.
To aged brethren of the bar it may appear belated to remind them that second
only to the duty of maintaining allegiance to the Republic of the Philippines and to
support the Constitution and obey the laws of the Philippines, is the duty of all
attorneys to observe and maintain the respect due to the courts of justice and
judicial officers (Sec. 20 (b) Rule 138, Rules of Court). But We do remind them of
said duty to emphasize to their younger brethren its paramount importance. A
lawyer must always remember that be is an officer of the court exercising a high
privilege and serving in the noble mission of administering justice.
It is the duty of the lawyer to maintain towards the courts a respectful attitude
(People vs. Carillo, 77 Phil. 572). As an officer of the court, it is his duty to uphold
the dignity and authority of the court to which he owes fidelity, according to the
oath he has taken. Respect for the courts guarantees the stability of our
democratic institutions which, without such respect, would be resting on a very
shaky foundation. (In re Sotto 82 Phil. 595).
As We stated before:
"We concede that a lawyer may think highly of his intellectual
endowment. That is his privilege. And, he may suffer frustration at what
he feels is others' lack of it. This is his misfortune. Some such frame of
mind, however, should not be allowed to harden into a belief that he may

attack a court's decision in words calculated to jettison the time-honored

aphorism that courts are the temples of right. He should give due
allowance to the fact that judges are but men; and men are
encompassed by error, fettered by fallibility.
. . . To be sure, lawyers may come up with various methods, perhaps
much more effective, in calling the Court's attention to the issues
involved. The language vehicle does not run short of expressions,
emphatic but respectful, convincing but not derogatory, illuminating but
not offensive" (Rheem of the Philippines vs. Ferrer G. R. No. L-22979,
June 26, 1967; 20 SCRA 441, 444-445)

Criminal contempt has been defined as a conduct that is directed against the
dignity and authority of the court or a judge acting judicially. It is an act
obstructing the administration of justice which tends to bring the court into
disrepute or disrespect (17 C.J.S. 7)
We have held that statements contained in a motion to disqualify a judge,
imputing to the latter conspiracy or connivance with the prosecutors or concocting
a plan with a view to securing the conviction of the accused, and implicating said
judge in a supposed attempt to extort money from the accused on a promise or
assurance of the latter's acquittal, all without basis, were highly derogatory and
serve nothing but to discredit the judge presiding the court in an attempt to
secure his disqualification. Statements of that nature have no place in a court
pleading and if uttered by a member of the bar, constitute a serious disrespect.
We said:
"As an officer of the court, it is his sworn and moral duty to help build and
not destroy unnecessarily the high esteem and regard towards the court
so essential to the proper administration of justice" (Emphasis supplied).
(People vs. Carillo, 43 O.G. No. 12, p. 5021; De Joya et al vs. C.F.I. of
Rizal and Rilloraza 52 O. G. 6150)

As already stated, the decision of the Court of Appeals in CA-G. R. No. 46504-R
was based on its evaluation of the evidence on only one specific issue. We in

turn denied in G. R. No. L-36800 the petition for review on certiorari of the
decision because We found no reason for disturbing the appellate court's finding
and conclusion. In both instances, both the Court of Appeals and this Court
exercised judicial discretion in a case under their respective jurisdiction. The
intemperate and imprudent act of respondent del Mar in resorting to veiled
threats to make both Courts reconsider their respective stand in the decision and
the resolution that spelled disaster for his client cannot be anything but pure
contumely for said tribunals.
It is manifest that respondent del Mar has scant respect for the two highest
Courts of the land when on the flimsy ground of alleged error in deciding a case,
he proceeded to challenge the integrity of both Courts by claiming that they
knowingly rendered unjust judgment. In short, his allegation is that they acted
with intent and malice, if not with gross ignorance of the law, in disposing of the
case of his client.
We note with wonder and amazement the brazen effrontery of respondent in
assuming that his personal knowledge of the law and his concept of justice are
superior to that of both the Supreme Court and the Court of Appeals. His
pretense cannot but tend to erode the people's faith in the integrity of the courts
of justice and in the administration of justice. He repeatedly invoked his supposed
quest for law and justice as justification for his contemptuous statements without
realizing that, in seeking both abstract elusive terms, he is merely pursuing his
own personal concept of law and justice. He seems not to comprehend that what
to him may be lawful or just may not be so in the minds of others. He could not
accept that what to him may appear to be right or correct may be wrong or
erroneous from the viewpoint of another. We understand that respondent's mind
delves into the absolute without considering the universal law of change. It is with
deep concern that We view such a state of mind of a practicing lawyer since what
We expect as a paramount qualification for those in the practice of law is
broadmindedness and tolerance, coupled with keen perception and a sound
sense of proportion in evaluating events and circumstances.

For a lawyer in the twilight of his life, with supposed physical and mental ailments
at that, who dares to challenge the integrity and honor of both the Supreme Court
and Court of Appeals, We have nothing but commiseration and sympathy for his
choosing to close the book of his long years of law practice not by voluntary
retirement with honor but in disciplinary action with ignominy and dishonor. To
those who are in the practice of law and those who in the future will choose to
enter this profession, We wish to point to this case as a reminder for them to
imprint in their hearts and minds that an attorney owes it to himself to respect the
courts of justice and its officers as a fealty for the stability of our democratic
institutions.
WHEREFORE, the resolution of the Court of Appeals in CA-G. R. No. 46504-R,
dated March 5, 1973, suspending Atty. Quirico del Mar from the practice of law,
as implemented by Our resolution of November 19, 1973, is hereby affirmed.
Respondent Atty. Quirico del Mar, for his misconduct towards the Supreme Court,
shall be, as he is hereby, suspended from the practice of law until further orders
of this Court, such suspension to take effect immediately. (In re Almacen, No. L27654, Feb. 18, 1970, 31 SCRA, p. 562.).
The Judicial Consultant of this Court is directed to circularize all courts and the
Integrated Bar of the Philippines regarding the indefinite suspension of Atty.
Quirico del Mar from the practice of law.
SO ORDERED.
Makalintal, C.J., Castro, Teehankee, Barredo, Makasiar, Antonio, Fernandez,
Muoz Palma and Aquino, JJ., concur.
Fernando, J., did not take part.

|||

(Montecillo v. Gica, G.R. No. L-36800, October 21, 1974)

IN RE:

DISBARMENT

PROCEEDINGS

AGAINST

ATTY.

DIOSDADO Q. GUTIERREZ, respondent.

Victorino A. Savellano for complainant.
Nestor M. Andrada for respondent.
SYLLABUS
1. ATTORNEYS-AT-LAW; DISBARMENT; CONVICTION OF CRIME INVOLVING
MORAL TURPITUDE. Under section 5, Rule 127 of the Rules of Court, a
member of the bar may be removed or suspended from his office as attorney by
reason of his conviction of a crime involving moral turpitude. Murder is such a
crime.
2. ID.; ID.; ID.; "MORAL TURPITUDE" CONSTRUED. The term "moral
turpitude" includes everything which is done contrary to justice, honesty, modesty
or good morals. In re Basa, 41 Phil. 275. As used in disbarment status, it means
an act of baseness, vileness, or depravity in the private and social duties which a
man owes to his fellow men or to society in general, contrary to the accepted rule
of right and duty between man and man. State ex rel. Conklin vs. Buckingham,
84 P. 2nd 49; 5 Am. Jur. Sec. 279, pp. 428-429.
3. ID.; ID.; ID.; EFFECT OF PARDON. The rule that pardon operates to wipe
out the conviction and is a bar to any proceeding for the disbarment of the
attorney after the pardon has been granted applies only where the pardon is
absolute, but not where, as in this case, the pardon granted is conditional and
merely remitted the unexecuted portion of the penalty. In such a case, the
attorney must be judged upon the fact of his conviction for the crime he has
committed.
4. ID.; REQUISITES FOR THE PRACTICE OF LAW. The practice of law is a
privilege accorded only to those who measure up to certain rigid standards of
mental and moral fitness. For the admission of a candidate to the bar the Rules of

Court not only prescribe a test of academic preparation but require satisfactory
testimonials of good moral character. These standards are neither dispensed with
nor lowered after admission; the lawyer must continue to adhere to them or else
incur the risk of suspension or removal.

DECISION

MAKALINTAL, J :
p

Respondent Diosdado Q. Gutierrez is a member of the Philippine Bar, admitted to

it on October 5, 1945. In criminal case No. R-793 of the Court of First Instance of
Oriental Mindoro he was convicted of the murder of Filemon Samaco, former
municipal mayor of Calapan, and together with his co-conspirators was
sentenced to the penalty of death. Upon review by this Court the judgment of
conviction was affirmed on June 30, 1956 (G. R. No. L-7101), but the penalty was
changed to reclusin perpetua. After serving a portion of the sentence
respondent was granted a conditional pardon by the President on August 19,
1958. The unexecuted portion of the prison term was remitted "on condition that
he shall not again violate any of the penal laws of the Philippines."
On October 9, 1958 the widow of the deceased Filemon Samaco, victim in the
murder case, filed a verified complaint before this Court praying that respondent
be removed from the roll of lawyers pursuant to Rule 127, section 5. Respondent
presented his answer in due time, admitting the facts alleged by complainant
regarding his previous conviction but pleading the conditional pardon in defense,
on the authority of the decision of this Court inthe case of In re Lontok, 43 Phil.
293.
Under section 5 of Rule 127 a member of the bar may be removed or suspended
from his office as attorney by the Supreme Court by reason of his conviction of a
crime involving moral turpitude. Murder is, without doubt, such a crime. The term
"moral turpitude" includes everything which is done contrary to justice, honesty,

modesty

or

good

morals. In re Carlos

S.

Basa,

41

Phil.

275.

As

used in disbarment statutes, it means an act of baseness, vileness, or

depravity in the private and social duties which a man owes to his fellowmen or to
society in general, contrary to the accepted rule of right and duty between man
and man. State ex rel. Conklin vs. Buckingham, 84 P. 2nd 49; 5 Am. Jur. Sec.
279, pp. 428-429.
The only question to be resolved is whether or not the conditional pardon
extended to respondent places him beyond the scope of the rule on disbarment
aforecited. Reliance is placed by him squarely on the Lontok case. The
respondent therein was convicted of bigamy and thereafter pardoned by the
Governor-General. In a subsequent proceeding for his disbarment on the ground
of such conviction, this Court decided in his favor and held: "When proceedings
to strike on attorney's name from the rolls are founded on, and depend alone, on
a statute making the fact of a conviction for a felony ground for disbarment, it has
been held that a pardon operates to wipe out the conviction and is a bar to any
proceeding for the disbarment of the attorney after the pardon has been granted."
It is our view that the ruling does not govern the question now before
us. In making it the Court proceeded on the assumption that the pardon granted
to respondent Lontok was absolute. This is implicit in the ratio decidendi of the
case, particularly in the citations to support it, namely, In re Emmons, 29 Cal.
App. 121; Scott vs. State 6 Tex. Civ. App. 343; and Ex parte Garland, 4 Wall. 380.
Thus in Scott vs. State the court said:
"We are of the opinion that after he received an unconditional pardon the
record of the felony conviction could no longer be used as a basis for the
proceeding

provided

for in article

226.

This

record,

when

offered in evidence, was met with an unconditional pardon, and could not
therefore, properly be said to afford "proof of a conviction of any felony."
Having been thus cancelled, all its force as a felony conviction was taken
away. A pardon falling short of this would not be pardon, according to the
judicial construction which that act of executive grace was received. Ex

parte Garland, 4 Wall, 344; Knote vs. U.S. 95 U.S. 149, and cases there
cited; Young vs. Young, 61 Tex. 191."

And the portion of the decision in Ex parte Garland quoted with approval in the
Lontok case is as follows:
"'A pardon reaches both the punishment prescribed for the offense and
the guilt of the offender; and when the pardon is full, it releases the
punishment and blots out of existence the guilt, so that in the eyes of the
law the offender is as innocent as if he had never committed the offense.
If granted before conviction, it prevents any of the penalties and
disabilities, consequent upon conviction, from attaching; if granted after
conviction, it removes the penalties and disabilities, and restores him to
all his civil rights; it makes him, as it were, a new man, and gives him a
new credit and capacity.' "

The pardon granted to respondent here is not absolute but conditional, and
merely remitted the unexecuted portion of his term. It does not reach the offense
itself, unlike that in Ex parte Garland, which was "a full pardon and amnesty for
all offenses by him committed in connection with the rebellion (civil war) against
the government of the United States."
The

foregoing

considerations

render In re Lontok

inapplicable

here.

Respondent Gutierrez must be judged upon the fact of his conviction for murder
without regard to the pardon he invokes in defense. The crime was qualified by
treachery and aggravated by its having been committed in band, by taking
advantage of his official position (respondent being municipal mayor at the time)
and with the use of a motor vehicle. People vs. DiosdadoGutierrez, supra. The
degree of moral turpitude involved is such as to justify his being purged from the
profession.
The practice of law is a privilege accorded only to those who measure up to
certain rigid standards of mental and moral fitness. For the admission of a
candidate to the bar the Rules of Court not only prescribe a test of academic
preparation but require satisfactory testimonials of good moral character. These

standards are neither dispensed with nor lowered after admission; the lawyer
must continue to adhere to them or else incur the risk of suspension or removal.
As stated in Ex parte Wall, 107 U.S. 263, 27 Law ed., 552, 556; "Of all classes
and professions, the lawyer is most sacredly bound to uphold the laws. He is their
sworn servant; and for him, of all men in the world, to repudiate and override the
laws, to trample them under foot and to ignore the very bands of society, argues
recreancy to his position and office and sets a pernicious example to the
insubordinate and dangerous elements of the body politic."
WHEREFORE, pursuant to Rule 127, Section 5, and considering the nature of
the crime for which respondent Diosdado Q. Gutierrez has been convicted, he is
ordered disbarred and his name stricken from the roll of lawyers.
Bengzon, C. J., Labrador, Concepcion, Barrera, Paredes, Dizon and Regala, JJ.,
concur.
Padilla, J., took no part.

|||

(In re Gutierrez, A.C. No. L-363, July 31, 1962)

FELICIDAD

L. ORONCE and

ROSITA

L.

FLAMINIANO, petitioners, vs. HON. COURT OF APPEALS and

PRICILIANO

B.

GONZALES

DEVELOPMENT

CORPORATION, respondents.
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; JURISDICTION; INFERIOR COURTS
ARE CONDITIONALLY VESTED WITH ADJUDICATORY POWER ON ISSUE OF
TITLE OR OWNERSHIP IN EJECTMENT CASES. Inferior courts are now
"conditionally vested with adjudicatory power over the issue of title or ownership

raised by the parties in an ejectment suit." These courts shall resolve the
question of ownership raised as an incident in an ejectment case where a
determination thereof is necessary for a proper and complete adjudication of the
issue of possession.

cdasia

2. ID.; ID.; COMPLAINT; DOCUMENTS ATTACHED, THE DUE EXECUTION

AND GENUINENESS OF WHICH ARE NOT DENIED UNDER OATH
CONSIDERED AS PART THEREOF; CASE AT BAR. MTC Branch 41
apparently did not examine the terms of the deed of sale. Instead, it erroneously
held that the issue of whether or not the document was in fact an equitable
mortgage "should not be properly raised in this case." Had it examined the terms
of the deed of sale, which, after all is considered part of the allegations of the
complaint having been annexed thereto, that court would have found that, even
on its face, the document was actually one of equitable mortgage and not of sale.
The inferior court appears to have forgotten that all documents attached to a
complaint, the due execution and genuineness of which are not denied under
oath by the defendant, must be considered as part of the complaint without need
of introducing evidence thereon. A closer look into the allegations of the
complaint would therefore show that petitioners failed to make out a case for
unlawful detainer. By the allegations in the complaint, private respondent as a
mortgagor had the right to posses the property. A mortgage is a real right
constituted to secure an obligation upon real property or rights therein to satisfy
with the proceeds of the sale thereof such obligation when the same becomes
due and has not been paid or fulfilled. The mortgagor generally retains
possession of the mortgaged property because by mortgaging a piece of
property, a debtor merely subjects it to a lien but ownership thereof is not parted
with. In case of the debtor's nonpayment of the debt secured by the mortgage,
the only right of the mortgagee is to foreclose the mortgage and have the
encumbered property sold to satisfy the outstanding indebtedness. The
mortgagor's default does not operate to vest in the mortgagee the ownership of
the encumbered property, for any such effect is against public policy. Even if the
property is sold at a foreclosure sale, only upon expiration of the redemption

period, without the judgment debtor having made use of his right of redemption,
does ownership of the land sold become consolidated in the purchaser.
3. CIVIL LAW; CONTRACTS; EQUITABLE MORTGAGE; CONSONANT WITH
THE RULE THAT THE LAW FAVORS THE LEAST TRANSMISSION OF
PROPERTY RIGHTS. Article 1604 of the Civil Code provides that the
provisions of Article 1602 "shall also apply to a contract purporting to be an
absolute sale." The presence of even one of the circumstances in Article 1602 is
sufficient basis to declare a contract as one of equitable mortgage. The explicit
provision of Article 1602 that "any" of those circumstances would suffice to
construe a contract of sale to be one of equitable mortgage is in consonance with
the rule that the law favors the least transmission of property rights.
4. ID.; ID.; CONTRACT OF SALE; NOT THE INTENTION OF THE PARTIES IN
CASE AT BAR. The denomination of the contract as a deed of sale is not
binding as to its nature. The decisive factor in evaluating such an agreement is
the intention of the parties, as shown, not necessarily by the terminology used in
the contract, but by their conduct, words, actions and deeds prior to, during and
immediately after executing the agreement. Private respondent's possession over
the property was not denied by petitioners as in fact it was the basis for their
complaint for unlawful detainer.
5. REMEDIAL

LAW;

CIVIL

PROCEDURE;

MULTIPLICITY

OF

SUITS;

TOLERABLE UNDER THE CIRCUMSTANCES IN THE CASE AT BAR.

Private respondent's action for reformation of instrument was in fact a step in the
right direction. However, its failure to pursue that action did not imply that private
respondent had no other remedy under the law as regards the issue of ownership
over the Gilmore property. There are other legal remedies that either party could
have availed of. Some of these remedies such as an action for quieting of title,
have been held to coexist with actions for unlawful detainer. There is a policy
against multiplicity of suits but under the circumstances, only the institution of
proper proceedings could settle the controversy between the parties in a
definitive manner.

6. ID.;

SPECIAL

CIVIL

ACTION;

UNLAWFUL

DETAINER;

ISSUE

OF

OWNERSHIP BECAME A PREJUDICIAL QUESTION IN THE CASE AT BAR.

Although the Court of Appeals resolved the appeal under the misconception that
the action for reformation of instrument was still viable, it correctly held that the
controversy between the parties was beyond the ordinary issues in an ejectment
case. Because of the opposing claims of the parties as to the true agreement
between them, the issue of ownership was in a sense a prejudicial question that
needed determination before the ejectment case should have been filed To
reiterate, a decision reached in the ejectment case in favor of any of the parties
would have nonetheless spawned litigation on the issue of ownership. At any
rate, proceedings would have been facilitated had the inferior courts made even a
provisional ruling on such issue.
7. ID.; ID.; CONTEMPT OF COURT; CONDUCT OF PETITIONER IN DEFYING
THE WRIT OF PRELIMINARY INJUNCTION CONSTITUTED INDIRECT
CONTEMPT. The conduct of petitioner Flaminiano in taking possession over
the property as alleged by private respondent through Tadeo Gonzales is
deplorably high-handed. On an erroneous assumption that she had been legally
vested with ownership of the property, she took steps prior to the present
proceedings by illegally taking control and possession of the same property in
litigation. Her act of entering the property in defiance of the writ of preliminary
injunction issued by the Court of Appeals constituted indirect contempt under
Section 3. Rule 71 of the Rules of Court that should be dealt with accordingly.
8. LEGAL ETHICS; ATTORNEYS; PROHIBITED FROM COUNSELLING OR
ABETTING ACTIVITIES AIMED AT DEFIANCE OF THE LAW OR AT
LESSENING THE CONFIDENCE IN THE LEGAL SYSTEM. Be that as it may,
what is disturbing to the Court is the conduct of her husband, Eduardo
Flaminiano, a lawyer whose actuations as an officer of the court should be
beyond reproach. His contumacious acts of entering the Gilmore property without
the consent of its occupants and in contravention of the existing writ of
preliminary injunction issued by the Court of Appeals and making utterances
showing disrespect for the law and this Court, are certainly unbecoming of a

member of the Philippine Bar. To be sure, he asserted in his comment on the

motion for contempt that petitioners "peacefully" took over the property.
Nonetheless, such "peaceful" take-over cannot justify defiance of the writ of
preliminary injunction that he knew was still in force. Notably, he did not comment
on nor categorically deny that he committed the contumacious acts alleged by
private respondent. Through his acts, Atty. Flaminiano has flouted his duties as a
member of the legal profession. Under the Code of Professional Responsibility,
he is prohibited from counseling or abetting "activities aimed at defiance of the
law or at lessening confidence in the legal system."

HTcDEa

DECISION

ROMERO, J :
p

The issue of whether or not a Metropolitan or Municipal Trial Court may resolve
the issue of ownership of the property involved in an unlawful detainer case has
been discussed by this Court in a number of cases, the more recent of which is
that of Hilario v. Court of Appeals. 1 Jurisprudence on the matter has in fact been
reflected in the 1997 Rules of Civil Procedure under Rule 70, to wit:

cda

"SEC. 16. Resolving defense of ownership. When the defendant

raises the defense of ownership in his pleadings and the question of
possession cannot be resolved without deciding the issue of ownership,
the issue of ownership shall be resolved only to determine the issue of
possession. (4a)"

These developments in the law notwithstanding, there remains some

misconceptions on the issue of jurisdiction of inferior courts in ejectment
cases where ownership is raised as a defense that the Court deems proper to
clarify in this petition.
Private respondent Priciliano B. Gonzales Development Corporation was the
registered owner of a parcel of land with an area of 2,000 square meters. The

land with improvements, covered by Transfer Certificate of Title No. RT-54556

(383917), is situated at No. 52 Gilmore Street, New Manila, Quezon City.
In June 1988, private respondent obtained a four million peso (P4,000,000.00)
loan from the China Banking Corporation. To guarantee payment of the loan,
private respondent mortgaged the Gilmore property and all its improvements to
said bank. Due to irregular payment of amortization, interests and penalties on
the loan accumulated through the years.
On April 13, 1992, private respondent, through its president, Antonio B.
Gonzales, signed and executed a Deed of Sale with Assumption of Mortgage
covering the Gilmore property and its improvements, in favor of petitioners Rosita
Flaminiano and Felicidad L. Oronce. 2 The deed, which states that the sale was in
consideration of the sum of P5,400,000.00, 3 provided inter alia that
". . . the VENDOR (PBGDC) also guarantees the right of the VENDEES
(petitioners) to the possession of the property subject of this contract
without the need of judicial action; and possession of said premises shall
be delivered to the VENDEES by the VENDOR at the expiration of one
(1) year from the date of the signing and execution of this Deed of Sale
with Assumption of Mortgage."

On the other hand, petitioners bound themselves to pay private respondent's

indebtedness with China Banking Corporation.
In fulfillment of the terms and conditions embodied in the Deed of Sale with
Assumption of Mortgage, petitioners paid private respondent's indebtedness with
the bank. However, private respondent reneged on its obligation to deliver
possession of the premises to petitioners upon the expiration of the one-year
period from April 13, 1992. Almost six months later since the execution of the
instrument or on October 2, 1992, petitioners caused the registration of the Deed
of Sale with Assumption of Mortgage with the Register of Deeds. Simultaneously,
they obtained a new title, TCT No. 67990, consistent with the fact that they are
the new owners of the property. 4 Sometime in July 1993, they paid the real

estate taxes on the property for which they were issued Tax Declarations Nos. C061-02815 and C-061-02816. 5
On November 12, 1993, petitioners sent private respondent a demand letter
asking it to vacate the premises. Said letter, just like three other consecutive
notices sent through the Quezon City post office, was unclaimed. Hence, on April
11, 1994, petitioners filed before the Metropolitan Trial Court of Quezon City, a
complaint for unlawful detainer against private respondent. The complaint,
docketed as Civil Case No. 8638 was raffled to Branch 41. Petitioners alleged
that by virtue of the Deed of Sale with Assumption of Mortgage, they acquired
from private respondent the Gilmore property and its improvements, for which
reason they were issued TCT No. 67990. However, they added, in violation of the
terms of that document, specifically Sec. 3 (c) thereof, private respondent refused
to surrender possession of the premises. Consequently, they demanded that
private respondent vacate the premises through notices sent by registered mail
that were, however, returned to them unclaimed.
In its answer to the complaint, private respondent raised the issue of ownership
over the property. It impugned petitioners' right to eject, alleging that petitioners
had no cause of action against it because it was merely a mortgagee of the
property. It argued that when the parties executed the Deed of Sale with
Assumption of Mortgage, its real intention was to forge an equitable mortgage
and not a sale. It pointed out three circumstances indicative of an equitable
mortgage, namely: inadequacy of the purchase price, continued possession by
private respondent of the premises, and petitioners' retention of a portion of the
purchase price.
During the preliminary conference on the case, the parties agreed to stipulate on
the following: (a) the existence and due execution of the Deed of Sale with
Assumption of Mortgage, and (b) the issue of whether or not the premises in
litis are being unlawfully detained by private respondent. 6
On March 24, 1995, the MTC 7 decided the case in favor of petitioners. It ruled
that petitioners are the owners of the Gilmore property on account of the

following pieces of evidence: (a) TCT No. 67990; (b) petitioners' payment to the
China Banking Corporation of P8,500,000.00, the amount of the mortgage
entered into between private respondent and said bank; (c) payment of real
estate taxes for 1993, and (d) Tax Declaration No. 02816 in petitioners' names.
The MTC further held that private respondent's possession of the premises was
merely tolerated by petitioners and because it refused to vacate the premises
despite demand to do so, then its possession of the same premises had become
illegal. Thus, the MTC decreed as follows:
"WHEREFORE, premises considered, judgment is hereby rendered
ordering defendant and all persons claiming rights under it to vacate the
premises-in-litis located at No. 52 Gilmore St., New Manila, Quezon City,
and to peacefully surrender possession thereof to the plaintiffs; to pay
plaintiffs the sum of P20,000.00 a month as compensation for the unjust
occupation of the same from April 11, 1994 (the date of filing of this
case) until defendant fully vacates the said premises; to pay plaintiffs the
amount of P20,000.00 as and for attorney's fees plus costs of suit.
Counterclaim is dismissed for lack of merit.
SO ORDERED." 8

On April 25, 1995, private respondent interposed an appeal to the Regional Trial
Court, Branch 219, of Quezon City that docketed it as Civil Case No. Q-9523697. Private respondent stressed in its appeal that it was not unlawfully
withholding possession of the premises from petitioners because the latter's
basis for evicting it was the Deed of Sale with Assumption of Mortgage that did
not reflect the true intention of the parties to enter into an equitable mortgage.
Clearly in pursuance of that allegation, private respondent filed a motion
questioning the jurisdiction of the RTC to entertain its appeal. On the other hand,
petitioners filed a motion for the immediate execution of the appealed decision.
The RTC granted the motion on September 21, 1995 and the corresponding writ
of execution was issued on September 25, 1995. The following day, the sheriff

served upon private respondent the writ of execution and a notice to vacate the
premises within five (5) days from receipt thereof.
Meanwhile, during the pendency of its appeal, private respondent filed an action
for reformation of instrument with the RTC. It was docketed as Civil Case No. Q95-24927 and assigned to Branch 227.
In a resolution dated December 7, 1995, RTC Branch 219 asserted jurisdiction
over the appeal. It ruled that the issue of whether or not an action for reformation
of a deed of sale and an unlawful detainer case can proceed independently of
each other has been resolved by this Court in Judith v.Abragan. 9 In said case,
this Court held that the fact that defendants had previously filed a separate action
for the reformation of a deed of absolute sale into one of pacto de retro sale or
equitable mortgage in the same Court of First Instance is not a valid reason to
frustrate the summary remedy of ejectment afforded by law to the plaintiff.
On December 12, 1995, private respondent filed in the Court of Appeals a
petition for certiorari with prayer for a temporary restraining order and writ of
preliminary injunction against petitioners and RTC Branch 219. It assailed the
September 21, 1995 order granting the issuance of a writ of execution pending
appeal, the writ of execution and the notice to vacate served upon private
respondent (CA-G.R. SP-39227).
On December 13, 1995, RTC Branch 219 10 rendered the decision affirming in
toto that of the Metropolitan Trial Court. Stating that in ejectment proceedings, the
only issue for resolution is who is entitled to physical or material possession of
the premises involved, RTC Branch 219 held that
". . . the plaintiffs (petitioners herein) are vendees of the defendant
(PBGDC) by virtue of a deed of sale where the extent of its right to
continue holding possession was stipulated. In the agreement, the
existence and due execution of which the defendant had admitted
(Order, December 16, 1994, Rollo, p. 111), it was clearly stated that the
defendant shall deliver the possession of the subject premises to the
plaintiffs at the expiration of one (1) year from the execution thereof, April

12, 1992. The defendant failed to do so. From then on, it could be said
that the defendant has been unlawfully withholding possession of the
premises from the plaintiffs.
In any case, this ruling on the matter of possession de facto is without
prejudice to the action for reformation. This is because 'the judgment
rendered in an action for forcible entry or detainer shall be effective with
respect to the possession only and in no wise bind the title or effect the
ownership of the land or building nor shall it be held conclusive of the
facts therein found in a case between the same parties upon a different
cause of action not involving possession' (Ang Ping v. Regional Trial
Court, 154 SCRA 153; Section 7, Rule 70, Rules of Court)."

11

On that same date, December 13, 1995, the Court of Appeals issued a
temporary restraining order enjoining RTC Branch 219 from enforcing the writ of
execution and the notice to vacate the premises and on January 15, 1996, the
same court granted private respondent's application for a writ of preliminary
injunction enjoining the implementation of both the writ of execution pending
appeal and the decision of RTC Branch 219.
Around six months later or on July 2, 1996, RTC Branch 227

12

issued an order

declaring private respondent non-suited for failure to appear at the pre-trial and,
therefore, dismissing the action for reformation of instrument in Civil Case No. Q95-24927. Private respondent, not having sought reconsideration of said order,
the same court issued a resolution on August 15, 1996 directing the entry of
judgment in the case. 13 The Clerk of Court accordingly issued the final entry of
judgment thereon. 14
In the meantime, on July 24, 1996, the Court of Appeals rendered the herein
questioned Decision. 15 It set aside the December 13, 1995 decision of RTC
Branch 219 and declared as null and void for want of jurisdiction, the March 24,
1995 decision of the Metropolitan Trial Court of Quezon City, Branch 41. It made
permanent the writ of preliminary injunction enjoining petitioners from

implementing the decision of RTC Branch 219, the writ of execution and the
notice to vacate. In so holding, the Court of Appeals said:
"It is quite evident that, upon the pleadings, the dispute between the
parties extended beyond the ordinary issues in ejectment cases. The
resolution of the dispute hinged on the question of ownership and for that
reason was not cognizable by the MTC. (See: General Insurance and
Surety Corporation v. Castelo, 13 SCRA 652 [1965])
Respondent judge was not unaware of the pendency of the action for
reformation. However, despite such knowledge, he proceeded to discuss
the merits of the appeal and rendered judgment in favor of respondents
on the basis of the deed of sale with assumption of mortgage which was
precisely the subject of the action for reformation pending before another
branch of the court. Prudence dictated that respondent judge should
have refused to be drawn into a discussion as to the merits of the
respective contentions of the parties and deferred to the action of the
court before whom the issue was directly raised for resolution."

On whether or not private respondent was in estoppel from questioning the

jurisdiction of the MTC since it voluntarily submitted thereto the question of the
validity of its title to the property, the Court of Appeals said:
"This is not so. As earlier pointed out, petitioner (private respondent
here) had, in its answer to the complaint for unlawful detainer, promptly
raised the issue of jurisdiction by alleging that what was entered into by
the parties was just an equitable mortgage and not a sale. Assuming the
truth of this allegation, it is fairly evident that respondents would not have
had a cause of action for ejectment. In other words, petitioner, since the
start of the case, presented a serious challenge to the MTC's jurisdiction
but, unfortunately, the court ignored such challenge and proceeded to
decide the case simply on the basis of possession.

'The operation of the principle of estoppel on the question of

jurisdiction seemingly depends upon whether the lower court
actually had jurisdiction or not, if it had no jurisdiction, but the
case was tried and decided upon the theory that it had
jurisdiction, the parties are not barred, on appeal, from assailing
such jurisdiction, for the same must exist as a matter of law, and
may not be conferred by consent of the parties or by estoppel (5
C.J.S., 861-863).' (La Naval Drug Corporation v. Court of Appeals,
236 SCRA 78 [1994]).
Contrary to respondents' pretense, the filing by petitioner of an action for
the reformation of contract may not really be an afterthought. As we
understand it, petitioner, to support its allegation that the contract was a
mere equitable mortgage, cites the fact that the price was inadequate; it
remained in possession of the premises; it has retained a part of the
purchase price; and, in any case, the real intention of the parties was
that the transaction shall secure the payment by petitioner of its loan,
adverting to Article 1602 of the Civil Code. Under Article 1604 of the
same code, it is provided that the presence of only one circumstance
defined in Article 1602, such as those cited above, is sufficient for a
contract of sale with right to repurchase to be presumed an equitable
mortgage. Without in any way preempting the decision of the court in the
action for reformation, it is our considered view that, under the factual
milieu, the action was initiated for the proper determination of the rights
of the parties under the contract, and not just an afterthought.
No derogatory inference can arise from petitioner's admission of
the existence of the deed of sale with assumption of mortgage. The
admission does not necessarily dilute its claim that the same does not
express the true intent of the parties.
Verily, since the case at bench involves a controverted right, the parties
are required to preserve the status quo and await the decision of the
proper court on the true nature of the contract. It is but just that the

person who has first acquired possession should remain in possession

pending decision on said case, and the parties cannot be permitted
meanwhile to engage in petty warfare over possession of property which
is the subject of dispute. To permit this will be highly dangerous to
individual security and disturbing to the social order. (Manlapaz v. Court
of Appeals, 191 SCRA 795 [1990])."

16

Hence, the present petition for review on certiorari where petitioners raise the
following assigned errors allegedly committed by respondent Court of Appeals:
I.
THE DECISION OF THE RESPONDENT COURT OF APPEALS IS
CONTRARY TO THE PROVISIONS OF SEC. 33 (2) OF THE
JUDICIARY

REORGANIZATION

ACT

OF

1980

CONFERRING

EXCLUSIVE ORIGINAL JURISDICTION ON THE METROPOLITAN

TRIAL COURT IN EJECTMENT CASES AND VESTING IT WITH
AUTHORITY, INDEED MANDATORILY, TO RESOLVE ISSUES OF
OWNERSHIP TO DETERMINE ISSUES OF POSSESSION.
II.
THE DECISION OF THE RESPONDENT COURT IS CONTRARY
TO CURRENT AND PREVAILING DOCTRINE AS ENUNCIATED IN
WILMON AUTO SUPPLY CORP. VS. COURT OF APPEALS, 208 SCRA
108; SY VS. COURT OF APPEALS, 200 SCRA 117; AND ASSET
PRIVATIZATION TRUST VS. COURT OF APPEALS, 229 SCRA 627.
III.
THE FILING OF THE REFORMATION CASE CONFIRMS THE
JURISDICTION OF THE METROPOLITAN TRIAL COURT OVER THE
EJECTMENT CASE; THE DISMISSAL OF THE REFORMATION CASE
CONFIRMS THE FACT THAT IT WAS FILED MERELY AS A PLOY TO
DELAY DISPOSITION OF EJECTMENT PROCEEDINGS, AND BARES
NOT JUST THE ERROR BUT THE UTTER INEQUITY OF THE

RESPONDENT COURT'S DECISION ANNULLING THE EJECTMENT

DECREE AND SETTING ASIDE THE REGIONAL TRIAL COURT
DECISION OF AFFIRMANCE.

Petitioners argue that the precedent laid down in Ching v. Malaya 17 relied upon
by the Court of Appeals, was based on the old law, Republic Act No.
296(Judiciary Act of 1948), as amended, which vested in the city courts original
jurisdiction over forcible entry and unlawful detainer proceedings and the
corresponding power to receive evidence upon the question of ownership for the
only purpose of determining the character and extent of possession.

18They

claim

that since the original complaint for unlawful detainer was filed on April 13, 1992,
then the applicable law should have been Section 33 (2) of the Judiciary
Reorganization Act of 1980 (Batas Pambansa Blg. 129). That law vests in the city
courts exclusive original jurisdiction over forcible entry and unlawful detainer
cases and the corresponding power to receive evidence upon questions of
ownership and to resolve the issue of ownership to determine the issue of
possession. 19
The history of the law vesting Municipal and Metropolitan Trial Courts with
jurisdiction over ejectment cases has invariably revolved upon the assumption
that the question of ownership may be considered only if necessary for the
determination of the issue as to who of the parties shall have the right to possess
the property in litigation. 20 Thus, under the Judiciary Act of 1948, as amended,
Section 88 vested municipal and city courts with authority to "receive evidence
upon the question of title therein, whatever may be the value of the property,
solely for the purpose of determining the character and extent of possession and
damages for detention." Section 3 of Republic Act No. 5967 that was enacted on
June 21, 1969, provided that city courts shall have concurrent jurisdiction with
Courts of First Instance over "ejection cases where the question of ownership is
brought in issue in the pleadings" and that the issue of ownership shall be
"resolved in conjunction with the issue of possession." Expounding on that
provision of law, in Pelaez v. Reyes, 21 this Court said:

". . . We are of the considered opinion that the evident import of Section
3 above is to precisely grant to the city courts concurrent original
jurisdiction with the courts of first instance over the cases enumerated
therein, which include 'ejection cases where the question of ownership is
brought in issue in the pleadings.' To sustain petitioner's contention
about the meaning of the last phrase of paragraph (c) of said section
regarding the resolution of the issue of ownership in conjunction with the
issue of possession' is to disregard the very language of the main part of
the section which denotes unmistakably a conferment upon the city
courts of concurrent jurisdiction with the courts of first instance over
ejection cases in which ownership is brought in issue in the pleadings. It
is to Us quite clear that the fact that the issue of ownership is to be
resolved 'in conjunction with the issue of possession' simply means that
both the issues of possession and ownership are to be resolved by the
city courts. And the jurisdiction is concurrent with the Courts of First
Instance precisely because usually questions of title are supposed to be
resolved by superior courts. In other words, this grant of special
jurisdiction to city courts is to be distinguished from the power ordinarily
accorded to municipal courts to receive evidence of title only for the
purpose of determining the extent of the possession in dispute."

Upon the approval on August 14, 1981 of Batas Pambansa Blg. 129 or the
Judiciary Reorganization Act of 1980, however, the power of inferior courts,
including city courts, to resolve the issue of ownership in forcible entry ad
unlawful detainer cases was modified. Resolution of the issue of ownership
became subject to the qualification that it shall be only for the purpose of
determining the issue of possession. In effect, therefore, the city courts lost the
jurisdiction to determine the issue of ownership per se that was theretofore
concurrent with the then Courts of Fist Instance. Thus, Section 33 of B.P. Blg.
129 provides that Metropolitan Trial Courts, Municipal Trial Courts and Municipal
Circuit Trial Courts shall exercise:

"Exclusive original jurisdiction over cases of forcible entry and unlawful

detainer: Provided, That when in such cases, the defendant raises the
question of ownership in his pleadings and the question of possession
cannot be resolved without deciding the issue of ownership, the issue of
ownership shall be resolved only to determine the issue of possession."

Accordingly, the Interim Rules and Guidelines in the implementation of Batas

Pambansa Blg. 129 provides as follows:
"10. Jurisdiction in ejectment cases. Metropolitan trial courts,
municipal trial courts, and municipal circuit trial courts, without
distinction, may try cases of forcible entry and detainer even if the
question of ownership is raised in the pleadings and the question of
possession could not be resolved without deciding the issue of
ownership, but the question of ownership shall be resolved only to
determine the issue of possession."

Explaining these provisions of law, in Sps. Refugia v. Court of Appeals, 22 the

Court said:
"These issuances changed the former rule under Republic Act No.
296 which merely allowed inferior courts to receive evidence upon the
question

of

title

solely

for

the

purpose

of

determining

the extent and character of possession and damages for detention,

which thereby resulted in previous rulings of this Court to the effect that if
it appears during the trial that the principal issue relates to the ownership
of the property in dispute and any question of possession which may be
involved necessarily depends upon the result of the inquiry into the title,
then the jurisdiction of the municipal or city courts is lost and the action
should be dismissed. With the enactment of Batas Pambansa Blg. 129,
the inferior courts now retain jurisdiction over an ejectment case even if
the question of possession cannot be resolved without passing upon the
issue of ownership, with the express qualification that such issue of
ownership shall be resolved only for the purpose of determining the
issue of possession. In other words, the fact that the issues of ownership

and possession de facto are intricately interwoven will not cause the
dismissal of the case for forcible entry and unlawful detainer on
jurisdictional grounds."

Another development in the law has emphasized the fact that inferior courts shall
not lose jurisdiction over ejectment cases solely because the issue of ownership
is interwoven with the issue of possession. Under the 1983 Rules on Summary
Procedure, as amended by a resolution of this Court that took effect on
November 15, 1991, all forcible entry and unlawful detainer cases shall be tried
pursuant to the Revised Rules on Summary Procedure, regardless of whether or
not the issue of ownership of the subject property is alleged by a party.

23

In other

words, even if there is a need to resolve the issue of ownership, such fact will not
deprive the inferior courts of jurisdiction over ejectment cases

24

that shall be tried

summarily.
When the jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts was expanded, thereby amending Batas Pambansa
Blg. 129, by virtue of Republic Act No. 7691 that took effect on April 15, 1994, the
jurisdiction of said courts over ejectment cases was retained. Thus, in Hilario
v. Court of Appeals this Court said:

cdphil

". . . As the law now stands, inferior courts retain jurisdiction over
ejectment cases even if the question of possession cannot be resolved
without passing upon the issue of ownership; but this is subject to the
same caveat that the issue posed as to ownership could be resolved by
the court for the sole purpose of determining the issue of possession.
Thus, an adjudication made therein regarding the issue of ownership
should be regarded as merely provisional and, therefore, would not bar
or prejudice an action between the same parties involving title to the
land. The foregoing doctrine is a necessary consequence of the nature
of forcible entry and unlawful detainer cases where the only issue to be

settled is the physical or material possession over the real property, that
is, possession de facto and not possession de jure."

In other words, inferior courts are now "conditionally vested with adjudicatory
power over the issue of title or ownership raised by the parties in an ejectment
suit." 25 These courts shall resolve the question of ownership raised as an
incident in an ejectment case where a determination thereof is necessary for a
proper and complete adjudication of the issue of possession. Considering the
difficulties that are usually encountered by inferior courts as regards the extent of
their power in determining the issue of ownership, in Sps. Refugia v. Court of
Appeals, the Court set out guidelines to be observed in the implementation of the
law which, as stated at the outset, has recently been restated in the 1997 Rules
of Civil Procedure. The guidelines pertinent to this case state:
"1. The primal rule is that the principal issue must be that of possession,
and that ownership is merely ancillary thereto, in which case the issue of
ownership may be resolved but only for the purpose of determining the
issue of possession. Thus, . . ., the legal provision under consideration
applies only where the inferior court believes and the preponderance of
evidence shows that a resolution of the issue of possession is dependent
upon the resolution of the question of ownership.
2. It must sufficiently appear from the allegations in the complaint that
what the plaintiff really and primarily seeks is the restoration of
possession. Consequently, where the allegations of the complaint as
well as the reliefs prayed for clearly establish a case for the recovery of
ownership, and not merely one for the recovery of possession de facto,
or where the averments plead the claim of material possession as a
mere elemental attribute of such claim for ownership, or where the issue
of ownership is the principal question to be resolved, the action is not
one for forcible entry but one for title to real property.
xxx xxx xxx

5. Where the question of who has the prior possession hinges on the
question of who the real owner of the disputed portion is, the inferior
court may resolve the issue of ownership and make a declaration as to
who among the contending parties is the real owner. In the same
vein, where the resolution of the issue of possession hinges on a
determination of the validity and interpretation of the document of title or
any other contract on which the claim of possession is premised, the
inferior court may likewise pass upon these issues. This is because, and
it must be so understood, that any such pronouncement made affecting
ownership

of the

disputed

portion

is to

be

regarded

merely

as provisional, hence, does not bar nor prejudice an action between the
same parties involving title to the land. Moreover, Section 7, Rule 70 of
the Rules of Court expressly provides that the judgment rendered in an
action for forcible entry or unlawful detainer shall be effective with
respect to the possession only and in no wise bind the title or affect the
ownership of the land or building."

26 (Emphasis

supplied.)

In the case at bar, petitioners clearly intended recovery of possession over the
Gilmore property. They alleged in their complaint for unlawful detainer that their
claim for possession is buttressed by the execution of the Deed of Sale with
Assumption of Mortgage, a copy of which was attached as Annex "A" to the
complaint and by the issuance of TCT No. 67990 that evidenced the transfer of
ownership over the property. 27 Because metropolitan trial courts are authorized
to look into the ownership of the property in controversy in ejectment cases, it
behooved MTC Branch 41 to examine the bases for petitioners' claim of
ownership that entailed interpretation of the Deed of Sale with Assumption of
Mortgage.
However, while it quoted paragraph (c) of the Deed of Sale with Assumption of
Mortgage that embodies the agreement of the parties that possession of the
Gilmore property and its improvements shall remain with the vendor that was
obliged to transfer possession only after the expiration of one year, 28MTC Branch
41 apparently did not examine the terms of the deed of sale. Instead, it

erroneously held that the issue of whether or not the document was in fact an
equitable mortgage "should not be properly raised in this case." Had it examined
the terms of the deed of sale, which, after all is considered part of the allegations
of the complaint having been annexed thereto, that court would have found that,
even on its face, the document was actually one of equitable mortgage and not of
sale. The inferior court appears to have forgotten that all documents attached to a
complaint, the due execution and genuineness of which are not denied under
oath by the defendant, must be considered as part of the complaint without need
of introducing evidence thereon. 29
Article 1602 of the Civil Code provides that a contract shall be presumed to be an
equitable mortgage by the presence of any of the following:
"(1) When the price of a sale with right to repurchase is unusually
inadequate;
(2) When the vendor remains in possession as lessee or otherwise;
(3) When upon or after the expiration of the right to repurchase another
instrument extending the period of redemption or granting a new period
is executed;
(4) When the purchaser retains for himself a part of the purchase price;
(5) When the vendor binds himself to pay the taxes on the thing sold;
(6) In any other case where it may be fairly inferred that the real intention
of the parties is that the transaction shall secure the payment of a debt
or the performance of any other obligation."

Article 1604 of the same Code provides that the provisions of Article 1602 "shall
also apply to a contract purporting to be an absolute sale." The presence of even
one of the circumstances in Article 1602 is sufficient basis to declare a contract
as one of equitable mortgage.

30

The explicit provision of Article 1602 that "any"

of those circumstances would suffice to construe a contract of sale to be one of

equitable mortgage is in consonance with the rule that the law favors the least
transmission of property rights.

The Deed of Sale with Assumption of Mortgage covering the 2,000-square-meter

lot located at No. 52 Gilmore Street, New Manila, Quezon City provides as
follows:
"3. That the total consideration for the sale of the above-described
property by the VENDOR to the VENDEES is FOURTEEN MILLION
(P14,000,000.00) PESOS, in Philippine currency, payable as follows:
a) The VENDOR shall be paid by the VENDEE the sum of FIVE
MILLION FOUR HUNDRED THOUSAND (P5,400,000.00) PESOS upon
the signing and execution of this Deed of Sale With Assumption of
Mortgage after computation of the mortgage obligation of the VENDOR
with

CHINA

BANKING

CORPORATION

in

the

amount

of

___________________ which the VENDEES agree to assume as part

of the consideration of this sale. The VENDEES hereby assume the
mortgage obligation of the VENDOR with the CHINA BANKING
CORPORATION in the total amount of ___________________.
b) The VENDOR hereby undertakes and agrees with the VENDEES that
the first-named party shall warrant and defend the title of said real
property hereby conveyed in favor of the VENDEES, their heirs,
successors or assigns, against all just claims of all persons or entities;
that the VENDOR also guarantees the right of the VENDEES to the
possession of the property subject of this contract without the need of
judicial action; and furthermore, the VENDOR binds itself to execute any
additional documents to complete the title of the VENDEES to the
above-described property so that it may be registered in the name of the
VENDEES in accordance with the provisions of the Land Registration
Act.
c) It is hereby expressly agreed and understood by and between the
VENDOR and the VENDEES that the house and other improvements
found in the premises are included in this sale and that possession of
said premises shall be delivered to the VENDEES by the VENDOR at

the expiration of one (1) year from the date of the signing and execution
of this Deed of Sale with Assumption of Mortgage.

d) It is furthermore expressly provided and agreed by and between the

VENDOR and the VENDEES that the capital gains tax shall be paid by
the VENDOR while any and all fees and expenses incident to the
registration and transfer of the title to the aforementioned property shall
be defrayed and borne by the VENDEES.
e) Attached to this Deed of Sale with Assumption of Mortgage as Annex
'A' thereof is the Certificate of ROSANA FLORES, Corporate Secretary
of PRICILIANO B. DEVELOPMENT CORPORATION, a corporation duly
organized and existing under Philippine Laws who certified that at a
special meeting of the Board of Directors of said corporation held on
December 3, 1991 at which meeting a quorum was present, the following
resolution was adopted and passed, to wit:
'RESOLVED, AS IT IS HEREBY RESOLVED, that the company,
PRICILIANO B. GONZALES DEVELOPMENT is (sic) hereby
authorized the President, Mr. Antonio B. Gonzales to enter into
and/or negotiate for the sale of a property described as Transfer
Certificate of Title No. 383917 with an area of TWO THOUSAND
(2,000) SQUARE METERS under the Registry of Deeds of
Quezon City;
'RESOLVED FURTHER, that Mr. ANTONIO B. GONZALES, is
hereby authorized to sign, execute any and all documents relative
thereto.'
That aforesaid resolution is in full force and effect.
(sgd.)
ROSANA FLORES
Corporate Secretary

(SGD.)
f) Full title and possession over the above-described property shall vest
upon the VENDEES upon the full compliance by them with all the terms
and conditions herein set forth." 31 (Emphasis supplied.)

That under the agreement the private respondent as vendor shall remain in
possession of the property for only one year, did not detract from the fact that
possession of the property, an indicium of ownership, was retained by private
respondent as the alleged vendor. That period of time may be deemed as
actually the time allotted to private respondent for fulfilling its part of the
agreement by paying its indebtedness to petitioners. This may be gleaned from
paragraph (f) that states that "full title and possession" of the property "shall vest
upon the VENDEES upon the full compliance by them with all the terms and
conditions herein set forth.
Paragraph (f) of the contract also evidences the fact that the agreed "purchase
price" of fourteen million pesos (P14,000,000.00) was not handed over by
petitioners to private respondent upon the execution of the agreement. Only
P5,400,000.00 was given by petitioners to private respondent, as the balance
thereof was to be dependent upon the private respondent's satisfaction of its
mortgage obligation to China Banking Corporation. Notably, the MTC found that
petitioners gave private respondent the amount of P8,500,000.00 that should be
paid to the bank to cover the latter's obligation, thereby leaving the amount of
P100,000.00 (P5,400,000.00 + P8,500,000.00 = P13,900,000.00) of the
"purchase price" still unpaid and in the hands of petitioners, the alleged
"vendees."
Hence, two of the circumstances enumerated in Article 1602 are manifest in the
Deed of Sale with Assumption of Mortgage, namely: (a) the vendor would remain
in possession of the property (no. 2), and (b) the vendees retained a part of the
purchase price (no. 4). On its face, therefore, the document subject of
controversy, is actually a contract of equitable mortgage.

The denomination of the contract as a deed of sale is not binding as to its nature.
The decisive factor in evaluating such an agreement is the intention of the
parties, as shown, not necessarily by the terminology used in the contract, but by
their conduct, words, actions and deeds prior to, during and immediately after
executing the agreement. 32 Private respondent's possession over the property
was not denied by petitioners as in fact it was the basis for their complaint for
unlawful detainer.
Neither does the issuance of a new transfer certificate of title in petitioners' favor
import conclusive evidence of ownership or that the agreement between the
parties was one of sale. 33 In Macapinlac v. Gutierrez Repide, this Court said:
". . . it must be borne in mind that the equitable doctrine . . . to the effect
that any conveyance intended as security for a debt will be held in effect
to be a mortgage, whether so actually expressed in the instrument or
not, operates regardless of the form of the agreement chosen by the
contracting parties as the repository of their will. Equity looks through the
form and considers the substance; and no kind of engagement can be
adopted which will enable the parties to escape from the equitable
doctrine to which reference is made. In other words, a conveyance of
land, accompanied by registration in the name of the transferee and the
issuance of a new certificate, is no more secured from the operation of
the equitable doctrine than the most informal conveyance that could be
devised." 34

A closer look into the allegations of the complaint would therefore show that
petitioners failed to make out a case for unlawful detainer. By the allegations in
the complaint, private respondent as a mortgagor had the right to posses the
property. A mortgage is a real right constituted to secure an obligation upon real
property or rights therein to satisfy with the proceeds of the sale thereof such
obligation when the same becomes due and has not been paid or fulfilled.
mortgagor generally retains possession of the mortgaged property

35 The

36 because

by

mortgaging a piece of property, a debtor merely subjects it to a lien but

ownership thereof is not parted with.

37 In

case of the debtor's nonpayment of the

debt secured by the mortgage, the only right of the mortgagee is to foreclose the
mortgage and have the encumbered property sold to satisfy the outstanding
indebtedness. The mortgagor's default does not operate to vest in the mortgagee
the ownership of the encumbered property, for any such effect is against public
policy. 38 Even if the property is sold at a foreclosure sale, only upon expiration of
the redemption period, without the judgment debtor having made use of his right
of redemption, does ownership of the land sold become consolidated in the
purchaser. 39
Petitioners' tenuous claim for possession of the Gilmore property was
emasculated further by private respondent's answer to their complaint. The latter
claimed ownership of the property, alleging that the agreement was one of
mortgage and not of sale. Private respondent alleged therein that in March 1993
(sic), it borrowed money from petitioner Felicidad Oronce alone to redeem the
subject property from China Banking Corporation. She agreed to lend it the
amount on condition that the Gilmore property should be mortgaged to her to
guarantee payment of the loan. However, petitioner Flaminiano took the money
from petitioner Oronce and paid the mortgage obligation of private respondent to
the China Banking Corporation while claiming that 50% of the amount was hers.
Petitioner Flaminiano's husband, Atty. Eduardo Flaminiano, forthwith prepared
the Deed of Sale with Assumption of Mortgage and, without private respondent's
knowledge, had it registered for which reason a new certificate of title was issued
to petitioners. In claiming that the agreement was one of mortgage, private
respondent alleged in its answer, inter alia, that the actual total value of the
property was thirty million pesos (P30,000,000.00); that while it had possession
of the property, petitioners did not then attempt to repossess the same,
notwithstanding the lapse of one year from the execution of the document; that
petitioners did not pay the real estate taxes even after the transfer of title in their
favor, and that petitioners did not deliver to private respondent the alleged
purchase price.
Considering these claims of private respondent, MTC Branch 41 should have
passed upon the issues raised on the ownership of the Gilmore property for the

purpose of determining who had the right to possess the same. As it turned out, it
simply accepted the allegations of petitioners without examining the supporting
documents. Had it closely analyzed the documents, it would have concluded that
petitioners could not have validly ousted private respondent from the property
since the basis for its claim of ownership, the Deed of Sale with Assumption of
Mortgage, was actually a document evidencing an equitable mortgage. It would
have accordingly dismissed the complaint for lack of cause of action.
In fine, had the MTC exercised its bounden duty to study the complaint, it would
have dismissed the same for lack of cause of action upon a provisional ruling on
the issue of ownership based on the allegations and annexes of the complaint.
Or, exercising caution in handling the case, considering petitioners' bare
allegations of ownership, it should have required the filing of an answer to the
complaint and, having been alerted by the adverse claim of ownership over the
same property, summarily looked into the issue of ownership over the property.
As this Court declared in Hilario v. Court of Appeals:
"It is underscored, however, that the allegations in the complaint for
ejectment should sufficiently make out a case for forcible entry or
unlawful detainer, as the case may be; otherwise, jurisdiction would not
vest in the inferior court. Jurisdiction over the subject matter is, after all,
determined by the nature of the action as alleged or pleaded in the
complaint. Thus, even where the defendant alleges ownership or title to
the property in his or her answer, the inferior court will not be divested of
its jurisdiction. A contrary rule would pave the way for the defendant to
trifle with the ejectment suit, which is summary in nature, as he could
easily defeat the same through the simple expedient of asserting
ownership." 40

As discussed above, even a perusal of the complaint without going over the
claims of private respondent in his answer would have sufficed to arrive at a
provisional determination of the issue of ownership. The importance of such
provisional ruling on the issue of ownership is demanded by the fact that, in the
event that the claim of the plaintiff in an ejectment case is controverted as in this

case, any ruling on the right of possession would be shaky, meaningless and
fraught with unsettling consequences on the property rights of the parties. After
all, the right of possession must stand on a firm claim of ownership. Had the MTC
made a provisional ruling on the issue of ownership, the parties would have
availed of other remedies in law early on to thresh out their conflicting claims.

Private respondent's action for reformation of instrument was in fact a step in the
right direction. However, its failure to pursue that action

41 did

not imply that

private respondent had no other remedy under the law as regards the issue of
ownership over the Gilmore property. There are other legal remedies that either
party could have availed of. Some of these remedies, such as an action for
quieting of title, have been held to coexist with actions for unlawful
detainer. 42 There is a policy against multiplicity of suits but under the
circumstances, only the institution of proper proceedings could settle the
controversy between the parties in a definitive manner.
Hence, although the Court of Appeals resolved the appeal under the
misconception that the action for reformation of instrument was still viable, it
correctly held that the controversy between the parties was beyond the ordinary
issues in an ejectment case. Because of the opposing claims of the parties as to
the true agreement between them, the issue of ownership was in a sense a
prejudicial question that needed determination before the ejectment case should
have been filed. To reiterate, a decision reached in the ejectment case in favor of
any of the parties would have nonetheless spawned litigation on the issue of
ownership. At any rate, proceedings would have been facilitated had the inferior
courts made even a provisional ruling on such issue.
The contentious circumstances surrounding the case were demonstrated by an
occurrence during the pendency of this petition that cries out for the resolution of
the issue of ownership over the Gilmore property.
After the parties had filed their respective memoranda before this Court, private
respondent filed an urgent motion to cite petitioner Rosita L. Flaminiano and her

husband, Atty. Eduardo B. Flaminiano, in contempt of court.

43

The motion was

founded on an affidavit of Dr. Tadeo Gonzales who resided at the contested

property, deriving his right to do so from private respondent corporation that is
owned by his family. Gonzales alleged that on September 20, 1997, petitioner
Flaminiano and her husband entered the property through craftiness and
intimidation. At around 5:30 p.m. on that day, two (2) men knocked at the gate.
When the houseboy, Luis R. Fernandez, opened the gate for pedestrians
tentatively, the two men told him that they would like to visit Gonzales' mother
who was ailing.
Once inside, the two men identified themselves as policemen and opened the
gate for twenty (20) men, two (2) trucks and an L-300 van to enter. When
Gonzales went outside the house, he saw thirty (30) to forty (40) men and two (2)
trucks entering the driveway. The person he asked regarding the presence of
those people inside the property turned out to be the brother of petitioner
Flaminiano. That person said, "Kami ang may-ari dito, Matagal na kaming
nagtitiis, kayo ang dapat sa labas." After Gonzales had told him that the property
was still under litigation before this Court, the man said, "Walang Supreme Court
Supreme Court." When Gonzales asked petitioner Flaminiano, who was inside
the premises, to order the people to leave, she said, "Papapasukin namin ito
dahil sa amin ito. Maglalagay ako ng tao diyan sa loob, sa harap, sa likod. Wala
ng pakiusap." When a power generator was brought inside the property and
Gonzales pleaded that it be taken out because the noise it would create would
disturb his ailing mother, Emiliana Gonzales, petitioner Flaminiano said, "Walang
awa-awa sa akin." Atty. Flaminiano butted in and, referring to Gonzales' mother,
said, "Ialis mo na, matanda na pala." When Gonzales prevented the switching on
of some lights in the house due to faulty wiring, Atty. Flaminiano suggested,
"Bakit hindi mo ipasunog ito? May insurance pa kayo 5 million, madali lang
yan. Short circuit." Since the Flaminianos and their crew were not about to leave
the property, Gonzales called up his brother, Atty. Antonio Gonzales, and
informed him of what happened. However, instead of confining themselves in the
driveway, the Flaminianos and their group entered the terrace, bringing in food.

prLL

Gonzales was all the while concerned about his 81-year-old mother who had just
been discharged from the hospital. However, the Flaminianos stayed until the
next day, September 22, 1997, using the kitchen, furniture and other fixtures in
the house. Gonzales took pictures of Flaminiano and his companions. When Atty.
Flaminiano arrived, he confronted Gonzales and told him, "Hindi ako natatakot
kahit kanino ka pa mag-report, kahit pa sa Supreme Court, gusto ko nga magreklamo kayo para matapos ang kaso. Sa September 25, may shooting dito,
gagawin ko ang gusto ko dito." 44
The affidavits of Renato C. Mola, driver of Atty. Antonio Gonzales, and that of
Luis R. Fernandez, houseboy of Dr. Tadeo Gonzales, as well as the xerox copy of
the sworn statement dated September 21, 1997 of Pria B. Gonzales before the
Philippine National Police in Camp Crame where she filed a complaint against
Atty. Flaminiano for the illegal entry into their house, support the affidavit of Dr.
Gonzales.
In its supplemental motion 45 to cite petitioner Flaminiano and her husband, Atty.
Flaminiano, in contempt of court, private respondent alleged that the Flaminianos
committed additional contumacious acts in preventing another member of the
family, Mrs. Cipriana Gonzales, from entering the property. In her affidavit, Mrs.
Gonzales said that the Flaminianos and their people used "the whole house,
except the bedrooms, for their filming activities." 46
Thereafter, private respondent filed an urgent motion for the issuance of a
temporary restraining order and/or writ of preliminary injunction with this Court to
enjoin petitioners, Atty. Flaminiano and their representatives and agents from
preventing private respondent, its agents and representatives from entering the
property and to cease and desist from occupying the property or from committing
further acts of dispossession of the property.

47

On October 13, 1997, this Court

issued the temporary restraining order prayed for. 48 In the motion it filed on
October 21, 1997, 49 private respondent informed the Court that the TRO could
not be served upon petitioners immediately because, Atty. Flaminiano, their
counsel of record, had changed address without informing the Court. It was
served upon said counsel only on October 15, 1997. However, instead of

complying with this Court's order, petitioners continued occupying the property.
On October 16, 1997, after receiving a copy of the TRO, petitioners put up a
huge billboard in front of the property stating that it is the national headquarters
of the People's Alliance for National Reconciliation and Unity for Peace and
Progress (PANRUPP).
In their comment on the motion for contempt, petitioners noticeably did not
controvert the facts set forth by private respondent in said motion. Instead, it
reasserted its claim of ownership over the property as evidenced by TCT No.
67990. They alleged that they had mortgaged the property to the Far East Bank
and Trust Company in the amount of thirty million pesos (P30,000,000.00) for
which they are paying a monthly interest of around P675,000.00 "without enjoying
the material possession of the subject property which has been unlawfully and
unjustly detained by private respondent for the last four (4) years as it was used
as the residence of the members of the family of its President ANTONIO B.
GONZALES without the said private respondent paying rentals thereon for the
period from January 1995 up to October 5, 1997 when the said property was
voluntarily vacated by the members of the President (sic) of respondent
corporation, ANTONIO B. GONZALES, who has since then been a fugitive from
justice having been convicted by final judgment of the crime of estafa through
falsification of public document and has succeeded in evading his sentence."
They averred that Tadeo Gonzales erroneously claimed that the rights of
ownership and possession over the property are still under litigation because "the
issue of ownership is no longer involved in this litigation when the complaint for
reformation of instrument with annulment of sale and title filed by private
respondent" was dismissed with finality by reason of non-suit. Hence, they
claimed that they "now stand to be the unquestionable registered and lawful
owners of the property subject of controversy" and that the July 24, 1996
Decision of the Court of Appeals "has already lost its virtuality and legal efficacy
with the occurrence of a 'supervening event' which is a superior cause
superseding the basis of the judgment" in CA-G.R. No. 39227 of respondent
court.

They informed the Court that they are now leasing the property to PANRUPP
from October 1, 1997 to September 30, 1998. They alleged, however, that the
property is in a "deplorable state of decay and deterioration" that they saw the
need "to act swiftly and decisively to prevent further destruction" of the property
where they "invested millions of pesos of their life-time savings to acquire the
same." Hence, they sought the assistance of barangay officials in Barangay
Mariana, New Manila who helped them effect "the peaceful entry into the
property of the petitioners without the use of strategy, force and intimidation
contrary to what was alleged" in the motion for contempt. They "peacefully took
over" possession of the property on September 20, 1997 but allowed the
immediate members of the family of private respondent's president to stay on.
The family finally agreed to vacate the premises on October 5, 1997 "upon the
offer of the petitioners to shoulder partially the expenses for the hospitalization of
the ailing mother at the St. Luke General Hospital where she was brought by an
ambulance accompanied by a doctor" at petitioners' expense.
Petitioners questioned the issuance by this Court of the TRO on October 13,
1997, asserting that when it was issued, there were "no more acts to restrain the
illegal occupants of the subject property (as they) had already peacefully vacated
the premises on October 5, 1997 or more than a week after the said TRO was
issued by the Third Division" of this Court. They prayed that the motion for
contempt be denied for lack of merit and that the TRO issued be lifted and set
aside "for the act or acts sought to be restrained have already been done and
have become a fait accompli before the issuance of the TEMPORARY
RESTRAINING ORDER on October 13, 1997." 50

As earlier discussed, petitioners' claim that the dismissal of the action for
reformation of instrument for non-suit had written finis to the issue of ownership
over the Gilmore property is totally unfounded in law. Petitioners should be
reminded that the instant petition stemmed from an unlawful detainer case, the
issue of which is merely possession of the property in question. The issue of
ownership has not been definitively resolved for the provisional determination of

that issue that should have been done by the MTC at the earliest possible time,
would only be for the purpose of determining who has the superior right to
possess the property. Inasmuch as this Court has resolved that the rightful
possessor should have been private respondent and its representatives and
agents, the TRO issued by this Court on October 13, 1997 should not be lifted.
That the TRO was issued days before private respondent left the property is
immaterial. What is in question here is lawful possession of the property, not
possession on the basis of self-proclaimed ownership of the property. For their
part, petitioners should cease and desist from further exercising possession of
the same property which possession, in the first place, does not legally belong to
them.
The conduct of petitioner Flaminiano in taking possession over the property as
alleged by private respondent through Tadeo Gonzales is deplorably highhanded. On an erroneous assumption that she had been legally vested with
ownership of the property, she took steps prior to the present proceedings by
illegally taking control and possession of the same property in litigation. Her act
of entering the property in defiance of the writ of preliminary injunction issued by
the Court of Appeals constituted indirect contempt under Section 3, Rule 71 of
the Rules of Court that should be dealt with accordingly.
Be that as it may, what is disturbing to the Court is the conduct of her husband,
Eduardo Flaminiano, a lawyer 51 whose actuations as an officer of the court
should be beyond reproach. His contumacious acts of entering the Gilmore
property without the consent of its occupants and in contravention of the existing
writ or preliminary injunction issued by the Court of Appeals and making
utterances showing disrespect for the law and this Court, are certainly
unbecoming of a member of the Philippine Bar. To be sure, he asserted in his
comment on the motion for contempt that petitioners "peacefully" took over the
property. Nonetheless, such "peaceful" take-over cannot justify defiance of the
writ of preliminary injunction that he knew was still in force. Notably, he did not
comment on nor categorically deny that he committed the contumacious acts
alleged by private respondent. Through his acts, Atty. Flaminiano has flouted his

duties as a member of the legal profession. Under the Code of Professional

Responsibility, he is prohibited from counseling or abetting "activities aimed at
defiance of the law or at lessening confidence in the legal system." 52
WHEREFORE, the instant petition for review on certiorari is hereby DENIED and
the questioned Decision of the Court of Appeals AFFIRMED without prejudice to
the filing by either party of an action regarding the ownership of the property
involved. The temporary restraining order issued on October 13, 1997 is hereby
made permanent. Petitioners and their agents are directed to turn over
possession of the property to private respondent.
Petitioner Rosita Flaminiano is hereby held guilty of contempt of court for
disobeying the writ of injunction issued by the Court of Appeals and accordingly
fined P20,000.00 therefor. Her counsel and husband, Atty. Eduardo B.
Flaminiano, is ordered to pay a fine of P25,000.00 for committing contumacious
acts unbecoming of a member of the Philippine Bar with a stern warning that a
repetition of the same acts shall be dealt with more severely. Let a copy of this
Decision be attached to his record at the Office of the Bar Confidant.

cdll

This Decision is immediately executory. Costs against petitioners.

SO ORDERED.
|||

(Oronce v. Court of Appeals, G.R. No. 125766, October 19, 1998)

JON DE YSASI III, petitioner, vs. NATIONAL

LABOR

RELATIONS COMMISSION (FOURTH DIVISION), CEBU CITY,

and JON DE YSASI,respondents.

DECISION

REGALADO, J :
p

The adage that blood is thicker than water obviously stood for naught in this
case, notwithstanding the vinculum of paternity and filiation between the parties.
It would indeed have been the better part of reason if herein petitioner and private
respondent had reconciled their differences in an extrajudicial atmosphere of
familial amity and with the grace of reciprocal concessions. Father and son opted
instead for judicial intervention despite the inevitable acrimony and negative
publicity. Albeit with distaste, the Court cannot proceed elsewise but to resolve
their dispute with the same reasoned detachment accorded any judicial
proceeding before it.

LexLib

The records of this case reveal that petitioner was employed by his father, herein
private respondent, as farm administrator of Hacienda Manucao in Hinigaran,
Negros Occidental sometime in April, 1980. Prior thereto, he was successively
employed as sales manager of Triumph International (Phil.), Inc. and later as
operations manager of Top Form Manufacturing (Phil.), Inc. His employment as
farm administrator was on a fixed salary, with other allowances covering housing,
food, light, power, telephone, gasoline, medical and dental expenses.
As farm administrator, petitioner was responsible for the supervision of daily
activities and operations of the sugarcane farm such as land preparation,
planting, weeding, fertilizing, harvesting, dealing with third persons in all matters
relating to the hacienda and attending to such other tasks as may be assigned to
him by private respondent. For this purpose, he lived on the farm, occupying the
upper floor of the house there.
Following his marriage on June 6, 1982, petitioner moved to Bacolod City with his
wife and commuted to work daily. He suffered various ailments and was
hospitalized on two separate occasions in June and August, 1982. In November,
1982, he underwent fistulectomy, or the surgical removal of the fistula, a deep
sinuous ulcer. During his recuperation which lasted over four months, he was
under the care of Dr. Patricio Tan. In June, 1983, he was confined for acute
gastroenteritis and, thereafter, for infectious hepatitis from December, 1983 to
January, 1984.

During the entire periods of petitioner's illnesses, private respondent took care of
his medical expenses and petitioner continued to receive compensation.
However, in April, 1984, without due notice, private respondent ceased to pay the
latter's salary. Petitioner made oral and written demands for an explanation for
the sudden withholding of his salary from Atty. Apolonio Sumbingco, private
respondent's auditor and legal adviser, as well as for the remittance of his salary.
Both demands, however, were not acted upon.
Petitioner then filed an action with the National Labor Relations Commission
(NLRC, for brevity), Regional Arbitration Branch No. VI, Bacolod City, on October
17, 1984, docketed therein as RAB Case No. 0452-84, against private
respondent for illegal dismissal with prayer for reinstatement without loss of
seniority rights and payment of full back wages, thirteenth month pay for 1983,
consequential, moral and exemplary damages, as well as attorney's fees.
On July 31, 1991, said complaint for illegal dismissal was dismissed by
the NLRC, 1 holding that petitioner abandoned his work and that the termination
of his employment was for a valid cause, but ordering private respondent to pay
petitioner the amount of P5,000.00 as penalty for his failure to serve notice of
said termination of employment to the Department of Labor and Employment as
required by Batas Pambansa Blg. 130 and consonant with this Court's ruling
in Wenphil Corporation vs. National Labor Relations Commission, et al. 2 On
appeal to the Fourth Division of the NLRC, Cebu City, said decision was
affirmed in toto. 3
His motion for reconsideration 4 of said decision having been denied for lack of
merit, 5 petitioner filed this petition presenting the following issues for resolution:
(1) whether or not the petitioner was illegally dismissed; (2) whether or not he is
entitled to reinstatement, payment of back wages, thirteenth month pay and other
benefits; and (3) whether or not he is entitled to payment of moral and exemplary
damages and attorney's fees because of illegal dismissal. The discussion of
these issues will necessarily subsume the corollary questions presented by
private respondent, such as the exact date when petitioner ceased to function as
farm administrator, the character of the pecuniary amounts received by petitioner

from private respondent, that is, whether the same are in the nature of salaries or
pensions, and whether or not there was abandonment by petitioner of his
functions as farm administrator.
In his manifestation dated September 14, 1992, the Solicitor General
recommended a modification of the decision of herein public respondent
sustaining the findings and conclusions of the Executive Labor Arbiter in RAB
Case No. 0452-84, 6 for which reason the NLRC was required to submit its own
comment on the petition. In compliance with the Court's resolution of November
16, 1992, 7 NLRC filed its comment on February 12, 1992 largely reiterating its
earlier position in support of the findings of the Executive Labor Arbiter. 8
Before proceeding with a discussion of the issues, the observation of the labor
arbiter is worth noting:
"This case is truly unique. What makes this case unique is the fact that
because of the special relationship of the parties and the nature of the
action involved, this case could very well go down (in) the annals of the
Commission as perhaps the first of its kind. For this case is an action
filed by an only son, his father's namesake, the only child and therefore
the only heir against his own father. 9

Additionally, the Solicitor General remarked:

". . . After an exhaustive reading of the records, two (2) observations
were noted that may justify why this labor case deserves special
considerations. First, most of the complaints that petitioner and private
respondent had with each other, were personal matters affecting father
and son relationship. And secondly, if any of the complaints pertain to
their work, they allow their personal relationship to come in the way.

10

I. Petitioner maintains that his dismissal from employment was illegal because of
want of just cause therefor and non-observance of the requirements of due
process. He also charges the NLRC with grave abuse of discretion in relying
upon the findings of the executive labor arbiter who decided the case but did not
conduct the hearings thereof.

cdphil

Private respondent, in refutation, avers that there was abandonment by petitioner

of his functions as farm administrator, thereby arming private respondent with a
ground to terminate his employment at Hacienda Manucao. It is also contended
that it is wrong for petitioner to question the factual findings of the executive labor
arbiter and the NLRC as only questions of law may be appealed for resolution by
this Court. Furthermore, in seeking the dismissal of the instant petition, private
respondent faults herein petitioner for failure to refer to the corresponding pages
of the transcripts of stenographic notes, erroneously citing Sections 15(d) and
16(d), Rule 44 (should be Section 16[c] and [d], Rule 46 and Section 1[g], Rule
50) of the Rules of Court, which provide that want of page references to the
records is a ground for dismissal of an appeal.
Prefatorily, we take advertence of the provisions of Article 221 of the Labor Code
that technical rules of evidence prevailing in courts of law and equity shall not be
controlling, and that every and all reasonable means to speedily and objectively
ascertain the facts in each case shall be availed of, without regard to
technicalities of law or procedure in the interest of due process.
It is settled that it is not procedurally objectionable for the decision in a case to be
rendered by a judge, or a labor arbiter for that matter, other than the one who
conducted the hearing. The fact that the judge who heard the case was not the
judge who penned the decision does not impair the validity of the
judgment, 11 provided that he draws up his decision and resolution with due care
and makes certain that they truly and accurately reflect conclusions and final
dispositions on the bases of the facts of and evidence submitted in the case. 12
Thus, the mere fact that the case was initially assigned to Labor Arbiter Ricardo
T. Octavio, who conducted the hearings therein from December 5, 1984 to July
11, 1985, and was later transferred to Executive Labor Arbiter Oscar S. Uy, who
eventually decided the case, presents no procedural infirmity, especially
considering that there is a presumption of regularity in the performance of a
public officer's functions, 13 which petitioner has not successfully rebutted.

We are constrained to heed the underlying policy in the Labor Code relaxing the
application of technical rules of procedure in labor cases in the interest of due
process, ever mindful of the long-standing legal precept that rules of procedure
must be interpreted to help secure, not defeat, justice. For this reason, we cannot
indulge private respondent in his tendency to nitpick on trivial technicalities to
boost his arguments. The strength of one's position cannot be hinged on mere
procedural niceties but on solid bases in law and jurisprudence.
The fundamental guarantees of security of tenure and due process dictate that no
worker shall be dismissed except for just and authorized cause provided by law
and after due process. 14 Article 282 of the Labor Code enumerates the causes
for which an employer may validly terminate an employment, to wit: (a) serious
misconduct or willful disobedience by the employee of the lawful orders of his
employer or representative in connection with his work; (b) gross and habitual
neglect by the employee of his duties; (c) fraud or willful breach by the employee
of the trust reposed in him by his employer or duly authorized representative; (d)
commission of a crime or offense by the employee against the person of his
employer or any immediate member of his family or his duly authorized
representative; and (e) other causes analogous to the foregoing.

prcd

The employer may also terminate the services of any employee due to the
installation of labor saving devices, redundancy, retrenchment to prevent losses
or the closing or cessation of operation of the establishment or undertaking,
unless the closing is for the purpose of circumventing the pertinent provisions of
the Labor Code, by serving a written notice on the workers and the Department
of Labor and Employment at least one (1) month before the intended date
thereof, with due entitlement to the corresponding separation pay rates provided
by law. 15 Suffering from a disease by reason whereof the continued employment
of the employee is prohibited by law or is prejudicial to his and his co-employee's
health, is also a ground for termination of his services provided he receives the
prescribed separation pay. 16 On the other hand, it is well-settled that

abandonment by an employee of his work authorizes the employer to effect the

former's dismissal from employment. 17
After a careful review of the records of this case, we find that public respondent
gravely erred in affirming the decision of the executive labor arbiter holding that
petitioner abandoned his employment and was not illegally dismissed from such
employment. For want of substantial bases, in fact or in law, we cannot give the
stamp of finality and conclusiveness normally accorded to the factual findings of
an administrative agency, such as herein public respondent NLRC, 18 as even
decisions of administrative agencies which are declared "final" by law are not
exempt from judicial review when so warranted. 19
The following perceptive disquisitions of the Solicitor General on this point
deserve acceptance:
"It is submitted that the absences of petitioner in his work from October
1982 to December 1982, cannot be construed as abandonment of work
because he has a justifiable excuse. Petitioner was suffering from
perennial abscess in the peri-anal around the anus and fistula under the
medical attention of Dr. Patricio Tan of Riverside Medical Center, Inc.,
Bacolod City (Tsn, Vol. III, Dr. Tan, February 19, 1986 at 20-44).
"This fact (was) duly communicated to private respondent by medical
bills sent to Hacienda Manucao (Tsn, Vol. III, Dr. Tan, January 22, 1987
at 49-50).
"During the period of his illness and recovery, petitioner stayed in
Bacolod City upon the instruction(s) of private respondent to recuperate
thereat and to handle only administrative matters of the hacienda in that
city. As a manager, petitioner is not really obliged to live and stay 24
hours a day inside Hacienda Manucao.
xxx xxx xxx
After evaluating the evidence within the context of the special
circumstances involved and basic human experience, petitioner's illness

and strained family relation with respondent Jon de Ysasi II may be

considered as justifiable reason for petitioner Jon de Ysasi III's absence
from work during the period of October 1982 to December 1982. In any
event, such absence does not warrant outright dismissal without notice
and hearing.
xxx xxx xxx
"The elements of abandonment as a ground for dismissal of an
employee are as follows:
(1) failure to report for work or absence without valid or justifiable
reason; and (2) clear intention to sever the employer-employee tie
(Samson Alcantara, Reviewer in Labor and Social Legislation,
1989 edition, p. 133).
"This Honorable Court, in several cases, illustrates what constitute
abandonment. In Dagupan Bus Company v. NLRC (191 SCRA 328), the
Court rules that for abandonment to arise, there must be a concurrence
of the intention to abandon and some overt act from which it may be
inferred that the employee has no more interest to work. Similarly,
in Nueva Ecija I Electric Cooperative, Inc. v. NLRC (184 SCRA 25), for
abandonment to constitute a valid cause for termination of employment,
there must be a deliberate, unjustified refusal of the employee to resume
his employment. . . . Mere absence is not sufficient; it must be
accompanied by overt acts unerringly pointing to the fact that the
employee simply does not want to work anymore.
"There are significant indications in this case, that there is no
abandonment. First, petitioner's absence and his decision to leave his
residence inside Hacienda Manucao, is justified by his illness and
strained family relations. Second he has some medical certificates to
show his frail health. Third, once able to work, petitioner wrote a letter
(Annex 'J') informing private respondent of his intention to assume again
his employment. Last, but not the least, he at once instituted a complaint

for illegal dismissal when he realized he was unjustly dismissed. All

these are indications that petitioner had no intention to abandon his
employment. 20

The record show that the parties herein do not dispute the fact of petitioner's
confinement in the hospital for his various afflictions which required medical
treatment. Neither can it be denied that private respondent was well aware of
petitioner's state of health as the former admittedly shouldered part of the
medical and hospital bills and even advised the latter to stay in Bacolod City until
he was fit to work again. The disagreement as to whether or not petitioner's
ailments were so serious as to necessitate hospitalization and corresponding
periods for recuperation is beside the point. The fact remains that on account of
said illnesses, the details of which were amply substantiated by the attending
physician, 21 and as the records are bereft of any suggestion of malingering on
the part of petitioner, there was justifiable cause for petitioner's absence from
work. We repeat, it is clear, deliberate and unjustified refusal to resume
employment and not mere absence that is required to constitute abandonment as
a valid ground for termination of employment. 22
With his position as farm administrator of Hacienda Manucao, petitioner
unmistakably may be classified as a managerial employee 23 to whom the law
grants an amount of discretion in the discharge of his duties. This is why when
petitioner stated that "I assigned myself where I want to go,"

24

he was simply

being candid about what he could do within the sphere of his authority. His duties
as farm administrator did not strictly require him to keep regular hours or to be at
the office premises at all times, or to be subjected to specific control from his
employer in every aspect of his work. What is essential only is that he runs the
farm as efficiently and effectively as possible and, while petitioner may definitely
not qualify as a model employee, in this regard he proved to be quite successful,
as there was at least a showing of increased production during the time that
petitioner was in charge of farm operations.
If, as private respondent contends, he had no control over petitioner during the
years 1983 to 1984, this is because that was the period when petitioner was

recuperating from illness and on account of which his attendance and direct
involvement in farm operations were irregular and minimal, hence the supervision
and control exercisable by private respondent as employer was necessarily
limited. It goes without saying that the control contemplated refers only to matters
relating to his functions as farm administrator and could not extend to petitioner's
personal affairs and activities.
While it was taken for granted that for purposes of discharging his duties as farm
administrator, petitioner would be staying at the house in the farm, there really
was no explicit contractual stipulation (as there was no formal employment
contract to begin with) requiring him to stay therein for the duration of his
employment or that any transfer of residence would justify the termination of his
employment. That petitioner changed his residence should not be taken against
him, as this is undeniably among his basic rights, nor can such fact of transfer of
residence per se be a valid ground to terminate an employer-employee
relationship.

cdrep

Private respondent, in his pleadings, asserted that as he was yet uncertain of his
son's intention of returning to work after his confinement in the hospital, he kept
petitioner on the payroll, reported him as an employee of the hacienda for social
security purposes, and paid his salaries and benefits with the mandated
deductions therefrom until the end of December, 1982. It was only in January,
1983 when he became convinced that petitioner would no longer return to work
that he considered the latter to have abandoned his work and, for this reason, no
longer listed him as an employee. According to private respondent, whatever
amount of money was given to petitioner from that time until April, 1984 was in
the nature of a pension or an allowance or mere gratuitous doles from a father to
a son, and not salaries as, in fact, none of the usual deductions were made
therefrom. It was only in April, 1984 that private respondent completely stopped
giving said pension or allowance when he was angered by what he heard
petitioner had been saying about sending him to jail.
Private respondent capitalizes on the testimony of one Manolo Gomez taken on
oral deposition regarding petitioner's alleged statement to him, "(h)e quemado los

(p)ue(n)tes de Manucao" ("I have burned my bridges with Manucao") as

expressive of petitioner's intention to abandon his job. In addition to insinuations
of sinister motives on the part of petitioner in working at the farm and thereafter
abandoning the job upon accomplishment of his objectives, private respondent
takes the novel position that the agreement to support his son after the latter
abandoned the administration of the farm legally converts the initial abandonment
to implied voluntary resignation. 25
As earlier mentioned, petitioner ripostes that private respondent undoubtedly
knew about petitioner's illness and even paid for his hospital and other medical
bills. The assertion regarding abandonment of work, petitioner argues, is further
belied by his continued performance of various services related to the operations
of the farm from May to the last quarter of 1983, his persistent inquiries from his
father's accountant and legal adviser about the reason why his pension or
allowance was discontinued since April, 1984, and his indication of having
recovered and his willingness and capability to resume his work at the farm as
expressed in a letter dated September 14, 1984.

26

With these, petitioner

contends that it is immaterial how the monthly pecuniary amounts are

designated, whether as salary, pension or allowance, with or without deductions,
as he was entitled thereto in view of his continued service as farm
administrator. 27

To stress what was earlier mentioned, in order that a finding of abandonment

may justly be made there must be a concurrence of two elements, viz.: (1) the
failure to report for work or absence without valid or justifiable reason, and (2) a
clear intention to sever the employer-employee relationship, with the second
element as the more determinative factor and being manifested by some overt
acts. Such intent we find dismally wanting in this case.
It will be recalled that private respondent himself admitted being unsure of his
son's plans of returning to work. The absence of petitioner from work since mid1982, prolonged though it may have been, was not without valid causes of which

private respondent had full knowledge. As to what convinced or led him to believe
that petitioner was no longer returning to work, private respondent neither
explains nor substantiates by any reasonable basis how he arrived at such a
conclusion.
Moreover, private respondent's claim of abandonment cannot be given credence
as even after January, 1983, when private respondent supposedly "became
convinced" that petitioner would no longer work at the farm, the latter continued
to perform services directly required by his position as farm administrator. These
are duly and correspondingly evidenced by such acts as picking up some farm
machinery/equipment from G.A. Machineries, Inc., 28claiming and paying for
additional farm equipment and machinery shipped by said firm from Manila to
Bacolod through Zip Forwarders, 29 getting the payment of the additional cash
advances for molasses for crop year 1983-1984 from Agrotex Commodities,
Inc., 30 and remitting to private respondent through Atty. Sumbingco the sums
collected along with receipts for medicine and oil. 31
It will be observed that all of these chores, which petitioner took care of, relate to
the normal activities and operations of the farm. True, it is a father's prerogative
to request or even command his child to run errands for him. In the present case,
however, considering the nature of these transactions, as well as the property
values and monetary sums involved, it is unlikely that private respondent would
leave the matter to just anyone. Prudence dictates that these matters be handled
by someone who can be trusted or at least be held accountable therefor, and who
is familiar with the terms, specifications and other details relative thereto, such as
an employee. If indeed petitioner had abandoned his job or was considered to
have done so by private respondent, it would be awkward, or even out of place, to
expect or to oblige petitioner to concern himself with matters relating to or
expected of him with respect to what would then be his past and terminated
employment. It is hard to imagine what further authority an employer can have
over a dismissed employee so as to compel him to continue to perform workrelated tasks:

It is also significant that the special power of attorney

32

executed by private

respondent on June 26, 1980 in favor of petitioner, specifically stating

xxx xxx xxx
"That I, JON de YSASI, Filipino, of legal age, married, and a resident of
Hda. Manucao, hereinafter called and referred to as PRINCIPAL, am a
sugarcane planter, BISCOM Mill District, and a duly accredited plantermember of the BINALBAGAN-ISABELA PLANTERS' ASSOCIATION,
INC.;
That as such planter-member of BIPA, I have check/checks with BIPA
representing payment for all checks and papers to which I am entitled to
(sic) as such planter-member;
That I have named, appointed and constituted as by these presents I
HEREBY NAME, APPOINT AND CONSTITUTE as my true and lawful
ATTORNEY-IN-FACT
JON de YSASI III
whose specimen signature is hereunder affixed, TO GET FOR ME and in
my name, place and stead, my check/checks aforementioned, said
ATTORNEY-IN-FACT being herein given the power and authority to sign
for me and in my name, place and stead, the receipt or receipts or
payroll for the said check/checks. PROVIDED, HOWEVER, that my said
ATTORNEY-IN-FACT cannot cash the said check/checks, but to turn the
same over to me for my proper disposition.
That I HEREBY RATIFY AND CONFIRM the acts of my Attorney-in-Fact
in getting the said check/checks and signing the receipts therefor.
That I further request that my said check/checks be made a 'CROSSED
CHECK'."
xxx xxx xxx

remained in force even after petitioner's employment was supposed to have

been terminated by reason of abandonment. Furthermore, petitioner's
numerous requests for an explanation regarding the stoppage of his salaries
and benefits, 33 the issuance of withholding tax reports, 34 as well as
correspondence reporting his full recovery and readiness to go back to
work, 35 and, specifically, his filing of the complaint for illegal dismissal are
hardly the acts of one who has abandoned his work.
We are likewise not impressed by the deposition of Manolo Gomez, as witness
for private respondent, ascribing statements to petitioner supposedly indicative of
the latter's intention to abandon his work. We perceive the irregularity in the
taking of such deposition without the presence of petitioner's counsel, and the
failure of private respondent to serve reasonably advance notice of its taking to
said counsel, thereby foreclosing his opportunity to cross-examine the deponent.
Private respondent also failed to serve notice thereof on the Regional Arbitration
Branch No. VI of the NLRC, as certified to by Administrative Assistant Celestina
G. Ovejera of said office. 36 Fair play dictates that at such an important stage of
the proceedings, which involves the taking of testimony, both parties must be
afforded equal opportunity to examine and cross-examine a witness.
As to the monthly monetary amounts given to petitioner, whether denominated as
salary, pension, allowance or ex gratia handout, there is no question as to
petitioner's entitlement thereto inasmuch as he continued to perform services in
his capacity as farm administrator. The change in description of said amounts
contained in the pay slips or in the receipts prepared by private respondent
cannot be deemed to be determinative of petitioner's employment status in view
of the peculiar circumstances above set out. Besides, if such amounts were truly
in the nature of allowances given by a parent out of concern for his child's
welfare, it is rather unusual that receipts therefor 37 should be necessary and
required as if they were ordinary business expenditures.
Neither can we subscribe to private respondent's theory that petitioner's alleged
abandonment was converted into an implied voluntary resignation on account of
the father's agreement to support his son after the latter abandoned his work. As

we have determined that no abandonment took place in this case, the monthly
sums received by petitioner, regardless of designation, were in consideration for
services rendered emanating from an employer-employee relationship and were
not of a character that can qualify them as mere civil support given out of
parental duty and solicitude. We are also hard put to imagine how abandonment
can be impliedly converted into a voluntary resignation without any positive act on
the part of the employee conveying a desire to terminate his employment. The
very concept of resignation as a ground for termination by the employee of his
employment 38does not square with the elements constitutive of abandonment.
On procedural considerations, petitioner posits that there was a violation by
private respondent of the due process requirements under the Labor Code for
want of notice and hearing. 39 Private respondent, in opposition, argues that
Section 2, Rule XIV, Book V of the Omnibus Rules Implementing the Labor Code
applies only to cases where the employer seeks to terminate the services of an
employee on any of the grounds enumerated under Article 282 of the Labor
Code, but not to the situation obtaining in this case where private respondent did
not dismiss petitioner on any ground since it was petitioner who allegedly
abandoned his employment. 40
The due process requirements of notice and hearing applicable to labor cases
are set out in Rule XIV, Book V of the Omnibus Rules Implementing the Labor
Code in this wise:
"Sec. 2. Notice of Dismissal. Any employer who seeks to dismiss a
worker shall furnish him a written notice stating the particular acts or
omission(s) constituting the grounds for his dismissal. In cases of
abandonment of work, notice shall be served at the worker's last known
address.
xxx xxx xxx
"Sec. 5. Answer and hearing. The worker may answer the allegations
as stated against him in the notice of dismissal within a reasonable
period from receipt of such notice. The employer shall afford the worker

ample opportunity to be heard and to defend himself with the assistance

of his representative, if he so desires.
"Sec. 6. Decision to dismiss. The employer shall immediately notify a
worker in writing of a decision to dismiss him stating clearly the reasons
therefor.
"Sec. 7. Right to contest dismissal. Any decision taken by the
employer shall be without prejudice to the right of the worker to contest
the validity or legality of his dismissal by filing a complaint with the
Regional Branch of the Commission.
xxx xxx xxx
"Sec. 11. Report of Dismissal. The employer shall submit a monthly
report to the Regional Office having jurisdiction over the place of work at
all dismissals effected by him during the month, specifying therein the
names of the dismissed workers, the reasons for their dismissal, the
dates of commencement and termination of employment, the positions
last held by them and such other information as may be required by the
Ministry for policy guidance and statistical purposes."

cdrep

Private respondent's argument is without merit as there can be no question that

petitioner was denied his right to due process since he was never given any
notice about his impending dismissal and the grounds therefor, much less a
chance to be heard. Even as private respondent controverts the applicability of
the mandatory twin requirements of procedural due process in this particular
case, he in effect admits that no notice was served by him on petitioner. This fact
is corroborated by the certification issued on September 5, 1984 by the Regional
Director for Region VI of the Department of Labor that no notice of termination of
the employment of petitioner was submitted thereto. 41
Granting arguendo that there was abandonment in this case, it nonetheless
cannot be denied that notice still had to be served upon the employee sought to

be dismissed, as the second sentence of Section 2 of the pertinent implementing

rules explicitly requires service thereof at the employee's last known address, by
way of substantial compliance. While it is conceded that it is the employer's
prerogative to terminate an employee, especially when there is just cause
therefor, the requirements of due process cannot be lightly taken. The law does
not countenance the arbitrary exercise of such a power or prerogative when it has
the effect of undermining the fundamental guarantee of security of tenure in favor
of the employee. 42
On the executive labor arbiter's misplaced reliance on the Wenphil case, the
Solicitor General rejoins as follows:
"The Labor Arbiter held thus:
'While we are in full agreement with the respondent as to his defense of
implied resignation and/or abandonment, records somehow showed that
he failed to notify the Department of Labor and Employment for his sons'
(sic)/complainants' (sic) aba(n)donment as required by BP 130. And for
this failure, the other requisite for a valid termination by an employer was
not complied with. This however, would not work to invalidate the
otherwise (sic) existence of a valid cause for dismissal. The validity of
the cause of dismissal must be upheld at all times provided however that
sanctions must be imposed on the respondent for his failure to observe
the notice on due process requirement. (Wenphil Corp. v. NLRC, G.R.
No. 80587). (Decision Labor Arbiter, at 11-12, Annex 'C' Petition), . . .'
"This is thus a very different case from Wenphil Corporation
v. NLRC, 170 SCRA 69. In Wenphil, the rule applied to the facts is:
once an employee is dismissed for just cause, he must not be rewarded
re-employment and backwages for failure of his employer to observe
procedural due process. The public policy behind this is that, it may
encourage the employee to do even worse and render a mockery of the
rules of discipline required to be observed. However, the employer must
be penalized for his infraction of due process. In the present case,

however, not only was petitioner dismissed without due process, but his
dismissal is without just cause. Petitioner did not abandon his
employment because he has a justifiable excuse."

43

II. Petitioner avers that the executive labor arbiter erred in disregarding the
mandatory provisions of Article 279 of the Labor Code which entitles an illegally
dismissed employee to reinstatement and back wages and, instead, affirmed the
imposition of the penalty of P5,000.00 on private respondent for violation of the
due process requirements. Private respondent, for his part, maintains that there
was error in imposing the fine because that penalty contemplates the failure to
submit the employer's report on dismissed employees to the DOLE regional
office, as required under Section 5 (now, Section 11), Rule XIV of the
implementing rules, and not the failure to serve notice upon the employee sought
to be dismissed by the employer.
Both the Constitution and the Labor Code enunciate in no uncertain terms the
right of every worker to security of tenure.

44

To give teeth to this constitutional

and statutory mandates, the Labor Code spells out the relief available to an
employee in case of its denial:
"Art. 279. Security of Tenure. In cases of regular employment, the
employer shall not terminate the services of an employee except for a
just cause or when authorized by this Title. An employee who is unjustly
dismissed from work shall be entitled to reinstatement without loss of
seniority rights and other privileges and to his full backwages, inclusive
of allowances, and to his other benefits of their monetary equivalent
computed from the time his compensation was withheld from him up to
the time of actual reinstatement."

LLjur

Clearly, therefore, an employee is entitled to reinstatement with full back wages in

the absence of just cause for dismissal.

45

The Court, however, on numerous

occasions has tempered the rigid application of said provision of the Labor Code,
recognizing that in some cases certain events may have transpired as would
militate against the practicability of granting the relief thereunder provided, and
declares that where there are strained relations between the employer and the

employee, payment of back wages and severance pay may be awarded instead
of reinstatement, 46 and more particularly when managerial employees are
concerned. 47 Thus, where reinstatement is no longer possible, it is therefore
appropriate that the dismissed employee be given his fair and just share of what
the law accords him. 48
We note with favor and give our imprimatur to the Solicitor General's ratiocination,
to wit:
"As a general rule, an employee who is unjustly dismissed from work
shall be entitled to reinstatement without loss of seniority rights and to
his backwages computed from the time his compensation was withheld
up to the time of his reinstatement. (Morales vs. NLRC, 188 SCRA 295).
But inPacific Cement Company, Inc. vs. NLRC, 173 SCRA 192, this
Honorable Court held that when it comes to reinstatement, differences
should be made between managers and the ordinary workingmen. The
Court concluded that a company which no longer trusts its managers
cannot operate freely in a competitive and profitable manner.
The NLRC should know the difference between managers and ordinary
workingmen. It cannot imprudently order the reinstatement of managers
with the same ease and liberality as that of rank and file workers who
had been terminated. Similarly, a reinstatement may not be appropriate
or feasible in case of antipathy or antagonism between the parties
(Morales, vs. NLRC, 188 SCRA 295).
"In the present case, it is submitted that petitioner should not be
reinstated as farm administrator of Hacienda Manucao. The present
relationship of petitioner and private respondent (is) so strained that a
harmonious and peaceful employee-employer relationship is hardly
possible." 49

III. Finally, petitioner insists on an award of moral damages, arguing that his
dismissal from employment was attended by bad faith or fraud, or constituted
oppression, or was contrary to morals, good customs or public policy. He further

prays for exemplary damages to serve as a deterrent against similar acts of

unjust dismissal by other employers.
Moral damages, under Article 2217 of the Civil Code, may be awarded to
compensate one for diverse injuries such as mental anguish, besmirched
reputation, wounded feelings, and social humiliation, provided that such injuries
spring from a wrongful act or omission of the defendant which was the proximate
cause thereof. 50 Exemplary damages, under Article 2229, are imposed by way of
example or correction for the public good, in addition to moral, temperate,
liquidated or compensatory damages. They are not recoverable as a matter of
right, it being left to the court to decide whether or not they should be
adjudicated. 51
We are well aware of the Court's rulings in a number of cases in the past allowing
recovery of moral damages where the dismissal of the employee was attended by
bad faith or fraud, or constituted an act oppressive to labor, or was done in a
manner contrary to morals, good customs or public policy,

52and

of exemplary

damages if the dismissal was effected in a wanton, oppressive or malevolent

manner. 53 We do not feel, however, that an award of the damages prayed for in
this petition would be proper even if, seemingly, the facts of the case justify their
allowance. In the aforestated cases of illegal dismissal where moral and
exemplary damages were awarded, the dismissed employees were genuinely
without fault and were undoubtedly victims of the erring employers' capricious
exercise of power.

LibLex

In the present case, we find that both petitioner and private respondent can
equally be faulted for fanning the flames which gave rise to and ultimately
aggravated this controversy, instead of sincerely negotiating a peaceful
settlement of their disparate claims. The records reveal how their actuations
seethed with mutual antagonism and the undeniable enmity between them
negates the likelihood that either of them acted in good faith. It is apparent that
each one has a cause for damages against the other. For this reason, we hold
that no moral or exemplary damages can rightfully be awarded to petitioner.

On this score, we are once again persuaded by the validity of the following
recommendation of the Solicitor General:
"The Labor Arbiter's decision in RAB Case No. 0452-84 should be
modified. There was no voluntary abandonment in this case because
petitioner has a justifiable excuse for his absence, or such absence does
not warrant outright dismissal without notice and hearing. Private
respondent, therefore, is guilty of illegal dismissal. He should be ordered
to pay backwages for a period not exceeding three years from date of
dismissal. And in lieu of reinstatement, petitioner may be paid separation
pay equivalent to one (1) month('s) salary for every year of service, a
fraction of six months being considered as one (1) year in accordance
with recent jurisprudence (Tan, Jr. vs. NLRC, 183 SCRA 651). But all
claims for damages should be dismissed, for both parties are equally at
fault." 54

The conduct of the respective counsel of the parties, as revealed by the records,
sorely disappoints the Court and invites reproof. Both counsel may well be
reminded that their ethical duty as lawyers to represent their clients with
zeal 55 goes beyond merely presenting their clients' respective causes in court. It
is just as much their responsibility, if not more importantly, to exert all reasonable
efforts to smooth over legal conflicts, preferably out of court and especially in
consideration of the direct and immediate consanguineous ties between their
clients. Once again, we reiterate that the useful function of a lawyer is not only to
conduct litigation but to avoid it whenever possible by advising settlement or
withholding suit. He is often called upon less for dramatic forensic exploits than
for wise counsel in every phase of life. He should be a mediator for concord and
a conciliator for compromise, rather than a virtuoso of technicality in the conduct
of litigation. 56
Rule 1.04 of the Code of Professional Responsibility explicitly provides that "(a)
lawyer shall encourage his client to avoid, end or settle the controversy if it will

admit of a fair settlement." On this point, we find that both counsel herein fell
short of what was expected of them, despite their avowed duties as officers of the
court. The records do not show that they took pains to initiate steps geared
toward effecting a rapprochement between their clients. On the contrary, their
acerbic and protracted exchanges could not but have exacerbated the situation
even as they may have found favor in the equally hostile eyes of their respective
clients.

cdphil

In the same manner, we find that the labor arbiter who handled this regrettable
case has been less than faithful to the letter and spirit of the Labor Code
mandating that a labor arbiter "shall exert all efforts towards the amicable
settlement of a labor dispute within his jurisdiction."

57

If he ever did so, or at least

entertained the thought, the copious records of the proceedings in this

controversy are barren of any reflection of the same.
One final word. This is one decision we do not particularly relish having been
obliged to make. The task of resolving cases involving disputes among members
of a family leaves a bad taste in the mouth and an aversion in the mind, for no
truly meaningful and enduring resolution is really achieved in such situations.
While we are convinced that we have adjudicated the legal issues herein
squarely on the bases of law and jurisprudence, sanssentimentality, we are
saddened by the thought that we may have failed to bring about the reconciliation
of the father and son who figured as parties to this dispute, and that our
adherence here to law and duty may unwittingly contribute to the breaking,
instead of the strengthening, of familial bonds. In fine, neither of the parties
herein actually emerges victorious. It is the Court's earnest hope, therefore, that
with the impartial exposition and extended explanation of their respective rights in
this decision, the parties may eventually see their way clear to an ultimate
resolution of their differences on more convivial terms.
WHEREFORE, the decision of respondent National Labor Relations Commission
is hereby SET ASIDE. Private respondent is ORDERED to pay petitioner back
wages for a period not exceeding three (3) years, without qualification or
deduction, 58 and, in lieu of reinstatement, separation pay equivalent to one (1)

month for every year of service, a fraction of six (6) months being considered as
one (1) whole year.
SO ORDERED.
|||

(De Ysasi III v. NLRC, G.R. No. 104599, March 11, 1994)

GLORIA PAJARES, petitioner-appellant, vs.

JUDGE

ESTRELLA ABAD SANTOS, MUNICIPAL COURT OF MANILA

and UDHARAM BAZAR CO.,respondents-appellees.
Moises C. Nicomedes for petitioner-appellant.
Tomas Lopez Valencia for respondents-appellees.
SYLLABUS
1. REMEDIAL LAW; PROCEDURE; BILL OF PARTICULARS; DENIAL OF
MOTION THEREFOR IN INSTANT CASE NOT ERROR OF LAW. It is plain
and clear that no error of law, much less any grave abuse of discretion, was
committed by respondent judge in denying appellant's motion for a bill of
particulars in the collection case instituted in the Municipal Court of Manila by
respondent-appellee for the recovery of her indebtedness of P354.85
representing the overdue balance of her account for ready-made goods ordered
by and delivered to her in 1961. Appellee's complaint precisely and concisely
informed appellant of the ultimate or essential facts constituting the cause of
action against her, in accordance with the requirements of the Rules of Court.
2. ID.; ID.; ID.; EVIDENTIARY MATTERS NOT SUBJECT TO BILL OF
PARTICULARS. Where the particulars sought all concerned evidentiary
matters, the same do not come within the scope of Rule 12, Section I of the

Rules of Court which permits a party to move for a definite statement or for a bill
of particulars of any matter which is not averred with sufficient definiteness or
particularity to enable him to prepare his responsive pleading or to prepare for
trial.
3. ID.; ID.; ID.; PARTICULARS INVOLVED IN INSTANT CASE WITHIN
KNOWLEDGE OF ADVERSE PARTY. Since appellant was engaged in the
business of buying and selling merchandise and appellee was one of her
creditors from whom she used to buy on credit ready-made goods for resale,
appellant had no need of the evidentiary particulars sought by her to enable her
to prepare her answer to the complaint or to prepare for trial. These particulars
were just as much within her knowledge as appellee's. She could not logically
pretend ignorance as to the same, for all she had to do was to check and verify
her own records of her outstanding account with appellee and state in her answer
whether the outstanding balance of her indebtedness was in the sum claimed by
appellee, or in a lesser amount. Furthermore, a month before appellee filed its
collection case, it had written appellant a demand-letter for the payment of her
outstanding account of P354.85 within one week and appellant, through her
counsel, wrote appellee acknowledging her said indebtedness.
4. COURTS;

CLOGGING OF COURT DOCKETS- COLLECTION CASE

INVOLVED IN INSTANT CASE NEEDLESSLY CLOGGED COURT DOCKETS.

In this case, the simple collection case has needlessly clogged the court dockets
for over seven years. Had appellant been but prudently advised by her counsel to
confess judgment and ask from her creditor the reasonable time she needed to
discharge her lawful indebtedness, the expenses of litigation that she has
incurred would have been much more than sufficient to pay off her just debt to
appellee. Yet, here she still remains saddled with the same debt, burdened by
accumulated interests, after having spent uselessly much more than the amount
in litigation in this worthless cause.
5. ID.; ID.; REMINDER TO LITIGANTS AND ATTORNEYS AGAINST FILING OF
UNMERITORIOUS CASES. The cooperation of litigants and their attorneys is
needed so that needless clogging of the court dockets with unmeritorious cases

may be avoided. There must be more faithful adherence to Rule 7, Section 5 of

the Rules of Court which provides that "the signature of an attorney constitutes a
certificate by him that he has read the pleading and that to the best of his
knowledge, information and belief, there is good ground to support it; and that it
is not interposed for delay" and expressly admonishes that "for a willful violation
of this rule an attorney may be subjected to disciplinary action."

DECISION

TEEHANKEE, J :
p

We dismiss as frivolous petitioner-appellant's appeal from the lower

Court's Order of dismissal of her petition for a writ of certiorari with prayer for
preliminary injunction against respondent judge's order denying her motion for
a bill of particulars as the defendant in a simple collection case.
The origin of the case is narrated in the Court of Appeals' Resolution dated
August 16, 1968 certifying the appeal to this Court as involving purely questions
of law:
"This

is

an

appeal

interposed

by

petitioner

Gloria Pajares from the order dated July 21, 1962 issued by the
Court of First Instance of Manila, dismissing her petition for
certiorari with preliminary injunction against respondent Judge
Estrella Abad Santos of the Municipal Court of Manila and
respondent Udharam Bazar & Co.
"There is no dispute that on April 25, 1962, the Udharam
Bazar & Co. sued Gloria Pajares before the Municipal Court of
Manila for recovery of a certain sum of money. The lawsuit was
docketed in the inferior court as Civil Case No. 97309 and was
eventually

assigned

Judge Abad Santos.

to

the

sala

of

the

respondent

"In its complaint the Udharam Bazar & Co. averred, among
others, as follows:
"'2. That defendant in 1961, ordered from the plaintiff
quantities of ready made goods and delivered to her in good
condition and same were already sold, but did not make the
full payment up to the present time;
"'3. That defendant is still indebted to the plaintiff in
the sum of P354.85, representing the balance of her account
as the value of the said goods, which is already overdue and
payable.'
"Instead

of

answering

the

complaint

against

her,

Gloria Pajares, however, moved for a bill of particulars praying the

inferior court to require the Udharam Bazar & Co. to itemize the
kinds of goods which she supposedly purchased from the said
company, the respective dates they were taken and by whom they
were received as well as their purchase prices, alleging that without
this bill she would not be able to meet the issues raised in the
complaint.
"After due hearing, the inferior court denied the motion of
Gloria Pajares for

bill

of

particulars.

Her

motion

for

reconsideration having been denied too by the said court, she then
brought the incident on certiorari to the Court of First Instance of
Manila, alleging in support of her petition that in denying her motion
for a bill of particulars, the respondent judge acted in grave abuse
of discretion.
"But on July 19, 1962, herein respondent Udharam Bazar &
Co. filed a motion to dismiss the petition for a writ of certiorari, as
well as the petition for a writ of Preliminary injunction, for the
reasons: (1) that the allegations of the complaint filed by the said
company in the inferior court, particularly paragraphs 2 and 3

thereof, are clear, specific and sufficiently appraise the defendant,

now herein petitioner Gloria Pajares, of the nature of the cause of
action against her so as to enable her to prepare for her defenses;
and (2) that the things asked for in the motion for a bill of particulars
are evidentiary matters, which are beyond the pale of such bill.
Convinced that the said motion of the company is well founded, the
lower court accordingly dismissed the petition on April 21, 1962.
"Her subsequent motion for reconsideration having been
similarly denied by the court below, Gloria Pajares undertook the
present appeal to this Court, contending under her lone assignment
of error to maintain her such appeal that the lower court erred in
dismissing her petition for certiorari with preliminary injunction, in its
order dated July 21, 1962, as amended by its order dated August
18, 1962.
"The only genuine issues involved in the case at bar are (1)
whether the allegations of the complaint sufficiently appraise
Gloria Pajares of the nature of the cause of action against her; and
(2) whether the items asked for by the said Gloria Pajares in her
motion for a bill of particulars constitute evidentiary matters. To our
mind these are purely legal questions. A perusal of the brief of the
parties has shown that no genuine factual questions are at all
involved in this appeal."

It is plain and clear that no error of law, much less any grave abuse of discretion,
was committed by respondent judge in denying appellant's motion for a bill of
particulars in the collection case instituted in the Municipal Court of Manila by
private respondent-appellee for the recovery of her indebtedness of P354.85
representing the overdue balance of her account for ready-made goods ordered
by and delivered to her in 1961. Appellee's complaint precisely and concisely
informed appellant of the ultimate or essential facts constituting the cause of
action against her, in accordance with the requirements of the Rules of Court. 1

It was therefore improper for appellant, through her counsel, to insist on her
motion that appellee as plaintiff "submit a bill of particulars, specifying therein in
detail the goods represented by the alleged amount of P354.85, giving the dates
and invoice numbers on which they were delivered to the defendant, the amount
due on each such invoice and by whom they were received." These particulars
sought all concerned evidentiary matters and do not come within the scope of
Rule 12, section 1 of the Rules of Court which permits a party "to move for a
definite statement or for a bill of particulars of any matter which is not averred
with sufficient definiteness or particularly to enable him to prepare his responsive
pleading or to prepare for trial."
Since appellant admittedly was engaged in the business of buying and selling
merchandise at her stall at the Sta. Mesa Market, Quezon City, and appellee was
one of her creditors from whom she used to buy on credit ready-made goods for
resale, appellant had no need of the evidentiary particulars sought by her to
enable her to prepare her answer to the complaint or to prepare for trial. These
particulars were just as much within her knowledge as appellee's. She could not
logically pretend ignorance as to the same, for all she had to do was to check and
verify her own records of her outstanding account with appellee and state in her
answer whether from her records the outstanding balance of her indebtedness
was in the sum of P354.85, as claimed by appellee, or in a lesser amount.

The record shows, furthermore, that a month before appellee filed its collection
case, it had written appellant a demand-letter for the payment of her outstanding
account in the said sum of P354.85 within one week. Appellant, through her
counsel, wrote appellee under date of March 23, 1962, acknowledging her said
indebtedness but stating that "Due to losses she has sustained in the operation
of her stall, she would not be able to meet your request for payment of the full
amount of P354.85 at once. I would therefore request you to be kind enough to
allow her to continue paying you P10.00 every 15th and end of the month as
heretofore."

No error was therefore committed by the lower court in summarily dismissing

appellant's petition for certiorari against respondent judge's order denying her
motion for a bill of particulars, as pretended by appellant in her lone assignment
of error. Well may we apply to this appeal, the words of Mr. Justice J.B.L. Reyes
in an analogous case, 2 that "the circumstances surrounding this litigation
definitely prove that appeal is frivolous and a plain trick to delay payment and
prolong litigation unnecessarily. Such attitude deserves condemnation, wasting
as it does, the time that the courts could well devote to meritorious cases."
Here, this simple collection case has needlessly clogged the court dockets for
over seven years. Had appellant been but prudently advised by her counsel to
confess judgment and ask from her creditor the reasonable time she needed to
discharge her lawful indebtedness, the expenses of litigation that she has
incurred by way of filing fees in the Court of First Instance, premiums for her
appeal bond, appellate court docket fees, printing of her appellant's brief, and
attorney's fees would have been much more than sufficient to pay off her just
debt to appellee. Yet, here she still remains saddled with the same debt,
burdened by accumulated interests, after having spent uselessly much more than
the amount in litigation in this worthless cause.
As we recently said in another case, 3 the cooperation of litigants and their
attorneys is needed so that needless clogging of the court dockets with
unmeritorious cases may be avoided. There must be more faithful adherence to
Rule 7, section 5 of the Rules of Court which provides that "the signature of an
attorney constitutes a certificate by him that he has read the pleading and that to
the best of his knowledge, information and belief,there is good ground to support
it; and that it is not interposed for delay" and expressly admonishes that "for a
willful violation of this rule an attorney may be subjected to disciplinary action."
WHEREFORE, the order appealed from is affirmed, and petitioner-appellant's
counsel shall pay treble costs in all instances. This decision shall be noted in the
personal record of the attorney for petitioner-appellant in this Court for future
reference. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro,

Fernando and Barredo, JJ., concur.
|||

(Pajares v. Abad Santos, G.R. No. L-29543, November 29, 1969)

THE PEOPLE OF

THE

PHILIPPINES, plaintiff-

appellee, vs. ANTONIO ROSQUETA,

EUGENIO ROSQUETA and

CITONG

JR.,
BRINGAS,defendants-

appellants; ATTY. GREGORIO B. ESTACIO, respondent.

RESOLUTION

FERNANDO, J :
p

Every now and then, although there seems to be more of such cases of late, a
member of the bar is proceeded against for failure to live up to the responsibility
owed to a client as well as to this Court. This is another such instance. In our
resolution of May 25, 1973, we required respondent Gregorio B. Estacio,
counsel de parte for appellants to show cause why disciplinary action should not
be taken against him for failure to file the brief for appellants within the period
which expired on March 30, 1973. He failed to show cause as thus required, and
on September 7, 1973, we issued a resolution suspending him from the practice
of law except for the purpose of filing the brief which should be done within thirty
days from receipt of notice. Then on October 22, 1973, he filed a motion for
reconsideration wherein it appeared that he did seek to explain his failure to file
the brief on time, but he left it to be mailed on June 9, 1973 with
Antonio Rosqueta,

Sr.,

father

of

appellants

Antonio Rosqueta,

Jr.

and

Eusebio Rosqueta, who, however, was unable to do so as on the 10th of June,

his house caught fire. He would impress on this Court that he was not informed of

such occurrence until the preparation of his motion for reconsideration. At any
rate, he would stress that both Antonio Rosqueta, Sr. and Salvador Labariento,
father-in-law of the third appellant, Citong Bringas, informed him they would
withdraw the appeal as they could not raise the money needed for pursuing it. He
had a supplement to such motion for reconsideration filed on October 25, 1973
wherein he stated that he could not secure the affidavits of appellants themselves
as two of them were in the Penal Colony in Davao and the third in the Iwahig
Penal Colony in Palawan. On November 5, 1973, this Court required appellants
to comment on a motion for reconsideration of respondent concerning specifically
their alleged desire to withdraw appeal.
Then on December 27, 1973, there was a motion of respondent submitting two
affidavits, one from Antonio Rosqueta, Jr. and the aforesaid Citong Bringas and
the other from Eusebio Rosqueta wherein they indicated their consent and
approval to respondent's motion to withdraw appeal. The joint affidavit of the first
two appellants reads as follows: "1. That we are the same persons named above
who have been charged in Criminal Case No. L-36138 entitled People v.
Antonio Rosqueta, Jr., et al. pending on appeal before the Supreme Court of the
Philippines; 2. That we hereby consent and approve the motion to withdraw the
appeal filed by our counsel, Atty. Gregorio B. Estacio before the Supreme Court
of the Philippines on that Criminal Case No. L-36138 then pending in said Court;
3. That we have given our consent and approval of our own will voluntarily,
without duress, force, threat or fraud or deceit; [In witness whereof], we have
hereunto set our signatures this 4th day of December 1973 in the Municipality of
Panabo, Davao." 1 The affidavit of Eusebio Rosqueta follows: "1. That I am one of
the accused in that case entitled People v. Antonio Rosqueta, Jr., et al. under No.
G.R. L-36138 now pending before the Supreme Court of the Philippines; 2. That I
hereby give my consent and approval to the Motion to Withdraw the Appeal which
has been filed by our counsel Atty. Gregorio B. Estacio before the Supreme Court
on the above-stated case; 3. That I have reached this conclusion after I have
conferred with our counsel Atty. Gregorio B. Estacio and this statement hereby
revokes and nullifies the statement signed by me on December 5, 1973 at the
Central Sub-Colony, Iwahig Penal Colony, Palawan before witnesses, namely, Mr.

Abencio B. Gabayan and Miss Merle J. Jopida; 4. That I have executed this
affidavit of my own free will, without intimidation, threat, fraud, deceit, duress or
force; [In witness whereof], I have hereunto set my hand this 13th day of
December, 1973 in the City of Puerto Princesa." 2
Respondent's liability is thus mitigated but he cannot be absolved from the
irresponsible conduct of which he is guilty. Respondent should be aware that
even in those cases where counsel de parte is unable to secure from appellants
or from their near relatives the amount necessary to pursue the appeal, that does
not necessarily conclude his connection with the case. It has been a
commendable practice of some members of the bar under such circumstances,
to be designated as counsel de oficio. That way the interest of justice is best
served. Appellants will then continue to receive the benefits of advocacy from
one who is familiar with the facts of the case. What is more, there is no undue
delay in the administration of justice. Lawyers of such category are entitled to
commendation. They manifest fidelity to the concept that law is a profession and
not a mere trade with those engaged in it being motivated solely by the desire to
make money. Respondent's conduct yields a different impression. What has
earned a reproof however is his irresponsibility. He should be aware that in the
pursuance of the duty owed this Court as well as to a client, he cannot be too
casual and unconcerned about the filing of pleadings. It is not enough that he
prepares them; he must see to it that they are duly mailed. Such inattention as
shown in this case is inexcusable. At any rate, the suspension meted on him
under the circumstances is more than justified. It seems, however, that well-nigh
five months had elapsed. That would suffice to atone for his misdeed.
WHEREFORE, the suspension of Atty. Gregorio B. Estacio is lifted. The
requirement to file the brief is dispensed with but Atty. Gregorio B. Estacio is
censured for negligence and inattention to duty. Likewise, as prayed for by
appellants themselves, their appeal is dismissed.
Zaldivar, Barredo, Antonio, Fernandez and Aquino, JJ ., concur.
|||

(People v. Rosqueta, Jr., G.R. No. L-36138 (Resolution), January 31, 1974)

FELISA

P. DE ROY and

RAMOS, petitioners, vs. COURT

OF

VIRGILIO
APPEALS

and

LUIS

BERNAL, SR., GLENIA BERNAL, LUIS BERNAL, JR., HEIRS

OF MARISSA BERNAL, namely, GLICERIA DELA CRUZ
BERNAL and LUIS BERNAL, SR., respondents.
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; APPEAL; PERIOD FOR APPEALING
OR FOR FILING A MOTION FOR RECONSIDERATION, NON-EXTENDIBLE.
The rule laid down in Habaluyas Enterprises, Inc. v. Japzon, [G.R. No. 70895,
August 5, 1985, 138 SCRA 46], that the fifteen-day period for appealing or for
filing a motion for reconsideration cannot be extended.
2. ID.; ID.; ID.; GRACE PERIOD IN BOCAVA CASE, INAPPLICABLE TO THE
CASE AT BAR. The one-month grace period from the promulgation on May
30, 1986 of the Court's Resolution in the clarificatory Habaluyas case, or up to
June 30, 1986, within which the rule barring extensions of time to file motions for
new trial or reconsideration may still be allowed cannot be invoked by the
petitioners as their motion for extension of time was filed on September 9, 1987,
more than a year after the grace period on June 30, 1986.

RESOLUTION

CORTES, J :
p

This special civil action for certiorari seeks to declare null and void two (2)
resolutions of the Special Division of the Court of Appeals in the Luis Bernal, Sr.,
et al. v. Felisa Perdosa De Roy, et al., CA-G.R. CV No. 07286. The first resolution
promulgated on 30 September 1987 denied petitioner's motion for extension of

time to file a motion for reconsideration and directed entry of judgment since the
decision in said case had become final; and the second Resolution dated 27
October 1987 denied petitioners' motion for reconsideration for having been filed
out of time.
At the outset, this Court could have denied the petition outright for not being
verified as required by Rule 65 section 1 of the Rules of Court. However, even if
the instant petition did not suffer from this defect, this Court, on procedural and
substantive grounds, would still resolve to deny it.
The facts of the case are undisputed. The firewall of a burned out building owned
by petitioners collapsed and destroyed the tailoring shop occupied by the family
of private respondents, resulting in injuries to private respondents and the death
of Marissa Bernal, a daughter. Private respondents had been warned by
petitioners to vacate their shop in view of its proximity to the weakened wall but
the former failed to do so. On the basis of the foregoing facts, the Regional Trial
Court. First Judicial Region, Branch XXXVIII, presided by the Hon. Antonio M.
Belen, rendered judgment finding petitioners guilty of gross negligence and
awarding damages to private respondents. On appeal, the decision of the trial
court was affirmed in toto by the Court of Appeals in a decision promulgated on
August 17, 1987, a copy of which was received by petitioners on August 25,
1987. On September 9, 1987, the last day of the fifteen-day period to file an
appeal, petitioners filed a motion for extension of time to file a motion for
reconsideration, which was eventually denied by the appellate court in the
Resolution

of

September

30,

1987.

Petitioners

filed

their

motion

for

reconsideration on September 24, 1987 but this was denied in the Resolution of
October 27, 1987.
This Court finds that the Court of Appeals did not commit a grave abuse of
discretion when it denied petitioners' motion for extension of time to file a motion
for reconsideration, directed entry of judgment and denied their motion for
reconsideration. It correctly applied the rule laid down in Habaluyas Enterprises,
Inc. v. Japzon, [G.R. No. 70895, August 5, 1985, 138 SCRA 46], that the fifteenday period for appealing or for filing a motion for reconsideration cannot be

extended. In its Resolution denying the motion for reconsideration, promulgated

on May 30, 1986 (142 SCRA 208), this Courten banc restated and clarified the
rule, to wit:
Beginning one month after the promulgation of this Resolution, the rule
shall be strictly enforced that no motion for extension of time to file a
motion for reconsideration may be filed with the Metropolitan or
Municipal Trial Courts, the Regional Trial Courts, and the Intermediate
Appellate Court. Such a motion may be filed only in cases pending with
the Supreme Court as the court of last resort, which may in its sound
discretion either grant or deny the extension requested. (at p. 212)

Lacsamana v. Second Special Cases Division of the Intermediate Appellate

Court, [G.R. No. 73146-53, August 26, 1986, 143 SCRA 643], reiterated the rule
and went further to restate and clarify the modes and periods of appeal.
Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 16, 1985, 144
SCRA 161], stressed the prospective application of said rule, and explained the
operation of the grace period, to wit:

LibLex

In other words, there is one-month grace period from the promulgation

on May 30, 1986 of the Court's Resolution in the clarificatory Habaluyas
case, or up to June 30, 1986, within which the rule barring extensions of
time to file motions for new trial or reconsideration is, as yet, not strictly
enforceable.
Since petitioners herein filed their motion for extension on February 27,
1986, it is still within the grace period, which expired on June 30, 1986,
and may still be allowed.

This grace period was also applied in Mission v. Intermediate Appellate

Court [G.R. No. 73669, October 28, 1986, 145 SCRA 306].
In the instant case, however, petitioners' motion for extension of time was filed on
September 9, 1987, more than a year after the expiration of the grace period on
June 30, 1986. Hence, it is no longer within the coverage of the grace period.

Considering the length of time from the expiration of the grace period to the
promulgation of the decision of the Court of Appeals on August 25, 1987,
petitioners cannot seek refuge in the ignorance of their counsel regarding said
rule for their failure to file a motion for reconsideration within the reglementary
period.

prLL

Petitioners contend that the rule enunciated in the Habaluyas case should not be
made to apply to the case at bar owing to the non-publication of
theHabaluyas decision in the Official Gazette as of the time the subject decision
of the Court of Appeals was promulgated. Contrary to petitioners' view, there is
no law requiring the publication of Supreme Court decisions in the Official
Gazette before they can be binding and as a condition to their becoming
effective. It is the bounden duty of counsel as lawyer in active law practice to
keep abreast of decisions of the Supreme Court particularly where issues have
been clarified, consistently reiterated, and published in the advance reports of
Supreme Court decisions (G.R.s) and in such publications as the Supreme Court
Reports Annotated (SCRA) and law journals.
This Court likewise finds that the Court of Appeals committed no grave abuse of
discretion in affirming the trial court's decision holding petitioner liable
under Article 2190 of the Civil Code, which provides that "the proprietor of a
building or structure is responsible for the damage resulting from its total or
partial collapse, if it should be due to the lack of necessary repairs."
Nor was there error in rejecting petitioners argument that private respondents had
the "last clear chance" to avoid the accident if only they heeded the warning to
vacate the tailoring shop and, therefore, petitioners prior negligence should be
disregarded, since the doctrine of "last clear chance," which has been applied to
vehicular accidents, is inapplicable to this case.
WHEREFORE, in view of the foregoing, the Court Resolved to DENY the instant
petition for lack of merit.
Fernan, Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

|||

(De Roy v. Court of Appeals, G.R. No. 80718 (Resolution), January 29, 1988)

FAR EASTERN SHIPPING COMPANY, petitioner, vs. COURT OF

APPEALS and PHILIPPINE PORTS AUTHORITY, respondents.
[G.R. No. 130150. October 1, 1998.]
MANILA

PILOTS

ASSOCIATION, petitioner, vs.

PORTS

PHILIPPINE
AUTHORITY

and FAR EASTERN SHIPPING COMPANY, respondents.

SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; PETITION FOR REVIEW FROM THE
REGIONAL TRIAL COURTS TO THE COURT OF APPEALS; REQUIREMENTS;
CERTIFICATION

AGAINST

FORUM

SHOPPING;

CERTIFICATION

EXECUTED BY THE COUNSEL IS A DEFECTIVE CERTIFICATION CLEARLY

EQUIVALENT TO NON-COMPLIANCE OF THE RULES AND CONSTITUTES A
VALID CAUSE FOR DISMISSAL OF THE PETITION. It must be stressed that
the certification against forum shopping ordained under the Rules is to be
executed by the petitioner, and not by counsel. Obviously it is the petitioner, and
not always the counsel whose professional services have been retained for a
particular case,. who is in the best position to know whether he or it actually filed
or caused the filing of a petition in that case. Hence, a certification against forum
shopping by counsel is a defective certification. It is clearly equivalent to noncompliance with the requirement under Section 2, Rule 42 in relation to Section
4, Rule 45, and constitutes a valid cause for dismissal of the petition.
2. COMMERCIAL LAW; MARITIME AND ADMIRALTY LAWS; CUSTOMS
ADMINISTRATIVE ORDER NO. 15-65; RULES FOR COMPULSORY PILOTAGE;
COMPULSORY PILOT FOUND NEGLIGENT IN THE PERFORMANCE OF HIS

DUTIES; PRUDENCE REQUIRED THAT HE, AS THE PILOT IN COMMAND,

SHOULD HAVE MADE SURE THAT HIS DIRECTIONS WERE PROMPTLY
FOLLOWED. We affirm respondent court's finding that Capt. Gavino failed to
measure up to such strict standard of care and diligence required of pilots in the
performance of their duties. It is disconcertingly riddled with too much incertitude
and manifests a seeming indifference for the possibly injurious consequences his
commands as pilot may have. Prudence required that he, as pilot, should have
made sure that his directions were promptly and strictly followed. As correctly
noted by the trial court Moreover, assuming that he did indeed give the
command to drop the anchor on time, as pilot he should have seen to it that the
order was carried out, and he could have done this in a number of ways, one of
which was to inspect the bow of the vessel where the anchor mechanism was
installed. Of course, Captain Gavino makes reference to a commotion among the
crew members which supposedly caused the delay in the execution of the
command. This account was reflected in the pilot's report prepared four hours
later, but Capt. Kavankov, while not admitting whether or not such a commotion
occurred, maintained that the command to drop anchor was followed
"immediately and precisely." Hence, the Court cannot give much weight or
consideration to this portion of Gavino's testimony. An act may be negligent if it is
done without the competence that a reasonable person in the position of the
actor would recognize as necessary to prevent it from creating an unreasonable
risk of harm to another. Those who undertake any work calling for special skills
are required not only to exercise reasonable care in what they do but also
possess a standard minimum of special knowledge and ability. Every man who
offers his services to another, and is employed, assumed to exercise in the
employment such skills he possess, with a reasonable degree of diligence. In all
these employments where peculiar skill is requisite, if one offers his services he
is understood as holding himself out to the public as possessing the degree of
skill commonly possessed by others in the same employment, and if his
pretensions are unfounded he commits a species of fraud on every man who
employs him in reliance on his public profession. Furthermore, there is an
obligation on all persons to take the care which, under ordinary circumstances of

the case, a reasonable and prudent man would take, and the omission of that
care constitutes negligence. Generally, the degree of care required is graduated
according to the danger a person or property attendant upon the activity which
the actor pursues or the instrumentality which he uses. The greater the danger
the greater the degree of care required. What is ordinary under extraordinary of
conditions is dictated by those conditions; extraordinary risk demands
extraordinary care. Similarly, the more imminent the danger, the higher the
degree of care.
3. ID.; ID.; ID.; THE COURT OF APPEALS PROPERLY APPLIED THE CLEAR
AND UNEQUIVOCAL PROVISIONS THEREOF IN HOLDING THE MANILA
PILOTS ASSOCIATION JOINTLY AND SOLIDARILY LIABLE WITH ITS
MEMBER PILOT. No reliance can be placed by MPA on the cited American
rulings as to immunity from liability of a pilots' association in light of existing
positive regulation under Philippine law. The Court of Appeals properly applied
the clear and unequivocal provisions of Customs Administrative Order No. 15-65.
In doing so, it was just being consistent with its finding of the non-existence of
employer-employee relationship between MPA and Capt. Gavino which precludes
the application of Article 2180 of the Civil Code. True, Customs Administrative
Order No. 15-65 does not categorically characterize or label MPA's liability as
solidary in nature. Nevertheless, a careful reading and proper analysis of the
correlated provisions lead to the conclusion that MPA is solidarily liable for the
negligence of its member pilots, without prejudice to subsequent reimbursement
from the pilot at fault. Article 1207 of the Civil Code provides that there is solidary
liability only when the obligation expressly so states, or when the law or the
nature of the obligation requires solidarity. Plainly, Customs Administrative Order
No. 15-65 which as an implementing rule has the force and effect of law, can
validly provide for solidary liability.
4. ID.; ID.; ID.; ID.; MASTER OF THE VESSEL LIKEWISE FOUND LIABLE
WITH THE COMPULSORY PILOT FOR NEGLIGENCE; HE FAILED TO ACT
WHEN THE PERILOUS SITUATION SHOULD HAVE SPURRED HIM INTO
QUICK AND DECISIVE ACTION AS THE MASTER OF THE SHIP. Where a

compulsory pilot is in charge of a ship, the master being required to permit him to
navigate it, if the master observes that the pilot is incompetent or physically
incapable, then it is the duty of the master to refuse to permit the pilot to act. But
if no such reasons are present, then the master is justified in relying upon the
pilot, but not blindly. Under the circumstances of this case, if a situation arose
where the master, exercising that reasonable vigilance which the master of a ship
should exercise, observed, or should have observed, that the pilot was so
navigating the vessel that she was going, or was likely to go, into danger, and
there was in the exercise of reasonable care and vigilance an opportunity for the
master to intervene so as to save the ship from danger, the master should have
acted accordingly. The master of a vessel must exercise a degree of vigilance
commensurate with the circumstances. Inasmuch as the matter of negligence is a
question of fact, we defer to the findings of the trial court, especially as this is
affirmed by the Court of Appeals. But even beyond that, our own evaluation is
that Capt. Kabankov's shared liability is due mainly to the fact that he failed to act
when the perilous situation should have spurred him into quick and decisive
action as master of the ship. In the face of imminent or actual danger, he did not
have to wait for the happenstance to occur before countermanding or overruling
the pilot. By his own admission, Capt. Kabankov concurred with Capt. Gavino's
decisions, and this is precisely the reason why he decided not to countermand
any of the latter's orders. Inasmuch as both lower courts found Capt. Gavino
negligent, by expressing full agreement therewith Capt. Kabankov was just as
negligent as Capt. Gavino.

TIEHSA

DECISION

REGALADO, J :
p

These consolidated petitions for review on certiorari seek in unison to annul and
set aside the decision 1 of respondent Court of Appeals of November 15, 1996
and its resolution 2 dated July 31, 1997 in CA-G.R. CV No. 24072, entitled

"Philippine Ports Authority, Plaintiff-Appellee vs. Far Eastern ShippingCompany,

Senen C. Gavino and Manila Pilots' Association, Defendants-Appellants," which
affirmed with modification the judgment of the trial court holding the defendantsappellants therein solidarily liable for damages in favor of herein private
respondent.
There is no dispute about the facts as found by the appellate court, thus
. . . On June 20, 1980, the M/V PAVLODAR, flying under the flagship of
the USSR, owned and operated by the Far Eastern Shipping Company
(FESC for brevity's sake), arrived at the Port of Manila from Vancouver,
British Columbia at about 7:00 o'clock in the morning. The vessel was
assigned Berth 4 of the Manila International Port, as its berthing space.
Captain Roberto Abellana was tasked by the Philippine Port Authority to
supervise the berthing of the vessel. Appellant Senen Gavino was
assigned by the Appellant Manila Pilots' Association (MPA for brevity's
sake) to conduct docking maneuvers for the safe berthing of the vessel
to Berth No. 4.
Gavino boarded the vessel at the quarantine anchorage and stationed
himself in the bridge, with the master of the vessel, Victor Kavankov,
beside him. After a briefing of Gavino by Kavankov of the particulars of
the vessel and its cargo, the vessel lifted anchor from the quarantine
anchorage and proceeded to the Manila International Port. The sea was
calm and the wind was ideal for docking maneuvers.
When the vessel reached the landmark (the big church by the Tondo
North Harbor) one-half mile from the pier, Gavino ordered the engine
stopped. When the vessel was already about 2,000 feet from the pier,
Gavino ordered the anchor dropped. Kavankov relayed the orders to the
crew of the vessel on the bow. The left anchor, with two (2) shackles,
were dropped. However, the anchor did not take hold as expected. The
speed of the vessel did not slacken. A commotion ensued between the
crew members. A brief conference ensued between Kavankov and the

crew members. When Gavino inquired what was all the commotion
about, Kavankov assured Gavino that there was nothing to it.

After Gavino noticed that the anchor did not take hold, he ordered the
engines half-astern. Abellana, who was then on the pier apron noticed
that the vessel was approaching the pier fast. Kavankov likewise noticed
that the anchor did not take hold. Gavino thereafter gave the "full-astern"
code. Before the right anchor and additional shackles could be dropped,
the bow of the vessel rammed into the apron of the pier causing
considerable damage to the pier. The vessel sustained damage too.
(Exhibit "7- Far Eastern Shipping"). Kavankov filed his sea protest

(Exhibit "1-Vessel"). Gavino submitted his report to the Chief Pilot

(Exhibit "1 -Pilot ") who referred the report to the Philippine Ports
Authority (Exhibit "2-Pilot"). Abellana likewise submitted his report of the
incident (Exhibit "B ").
Per contract and supplemental contract of the Philippine Ports Authority
and the contractor for the rehabilitation of the damaged pier, the same
cost the Philippine Ports Authority the amount of P1,126,132.25
(Exhibits "D" and "E"). 3

On January 10, 1983, the Philippine Ports Authority (PPA, for brevity), through
the Solicitor General, filed before the Regional Trial Court of Manila, Branch 39, a
complaint for a sum of money against Far Eastern Shipping Co., Capt. Senen C.
Gavino and the Manila Pilots' Association, docketed as Civil Case No. 8314958, 4 praying that the defendants therein be held jointly and severally liable to
pay the plaintiff actual and exemplary damages plus costs of suit. In a decision
dated August 1, 1985, the trial court ordered the defendants therein jointly and
severally to pay the PPA the amount of P1,053,300.00 representing actual
damages and the costs of suit. 5
The defendants appealed to the Court of Appeals and raised the following issues:
(1) Is the pilot of a commercial vessel, under compulsory pilotage, solely liable for

the damage caused by the vessel to the pier, at the port of destination, for his
negligence? and (2) Would the owner of the vessel be liable likewise if the
damage is caused by the concurrent negligence of the master of the vessel and
the pilot under a compulsory pilotage?
As stated at the outset, respondent appellate court affirmed the findings of the
court a quo except that it found no employer-employee relationship existing
between herein private respondents Manila Pilots' Association (MPA, for short)
and Capt. Gavino. 6 This being so, it ruled instead that the liability of MPA is
anchored, not on Article 2180 of the Civil Code, but on the provisions of Customs
Administrative Order No, 15-65, 7 and accordingly modified said decision of the
trial court by holding MPA, along with its co-defendants therein, still solidarily
liable to PPA but entitled MPA to reimbursement from Capt. Gavino for such
amount of the adjudged pecuniary liability in excess of the amount equivalent to
seventy-five percent (75%) of its prescribed reserve fund. 8
Neither Far Eastern Shipping Co. (briefly, FESC) nor MPA was happy with the
decision of the Court of Appeals and both of them elevated their respective
plaints to us via separate petitions for review on certiorari.

LexLib

In G.R. No. 130068, which was assigned to the Second Division of this Court,
FESC imputed that the Court of Appeals seriously erred:
1. in not holding Senen C. Gavino and the Manila Pilots' Association as
the parties solely responsible for the resulting damages sustained by the
pier deliberately ignoring the established jurisprudence on the matter;
2. in holding that the master had not exercised the required diligence
demanded from him by the circumstances at the time the incident
happened;
3. in affirming the amount of damages sustained by the respondent
Philippine Ports Authority despite a strong and convincing evidence that
the amount is clearly exorbitant and unreasonable;

4. in not awarding any amount of counterclaim prayed for by the

petitioner in its answer; and
5. in not granting herein petitioner's claim against pilot Senen C. Gavino
and Manila Pilots' Association in the event that it be held liable.

Petitioner asserts that since the MV PAVLODAR was under compulsory pilotage
at the time of the incident, it was the compulsory pilot, Capt. Gavino, who was in
command and had complete control in the navigation and docking of the vessel.
It is the pilot who supersedes the master for the time being in the command and
navigation of a ship and his orders must be obeyed in all respects connected with
her navigation. Consequently, he was solely responsible for the damage caused
upon the pier apron, and not the owners of the vessel. It claims that the master of
the boat did not commit any act of negligence when he failed to countermand or
overrule the orders of the pilot because he did not see any justifiable reason to do
so. In other words, the master cannot be faulted for relying absolutely on the
competence of the compulsory pilot. If the master does not observe that a
compulsory pilot is incompetent or physically incapacitated, the master is justified
in relying on the pilot. 10
Respondent PPA, in its comment, predictably in full agreement with the ruling of
respondent court on the solidary liability of FESC, MPA and Capt. Gavino,
stresses the concurrent negligence of Capt. Gavino, the harbor pilot, and Capt.
Viktor Kabankov. * shipmaster of MV Pavlodar, as the basis of their solidary
liability for damages sustained by PPA. It posits that the vessel was being piloted
by Capt. Gavino with Capt. Kabankov beside him all the while on the bridge of
the vessel, as the former took over the helm of MV Pavlodar when it rammed and
damaged the apron of the pier of Berth No. 4 of the Manila International Port.
Their concurrent negligence was the immediate and proximate cause of the
collision between the vessel and the pier Capt. Gavino, for his negligence in
the conduct of docking maneuvers for the safe berthing of the vessel; and Capt.
Kabankov, for failing to countermand the orders of the harbor pilot and to take
over and steer the vessel himself in the face of imminent danger, as well as for
merely relying on Capt. Gavino during the berthing procedure. 11

On the other hand, in G.R. No. 130150, originally assigned to the Court's First
Division and later transferred to the Third Division, MPA, now as petitioner in this
case, avers that respondent court's errors consisted in disregarding and
misinterpreting Customs Administrative Order No. 15-65 which limits the liability
of MPA. Said pilots' association asseverates that it should not be held solidarily
liable with Capt. Gavino who, as held by respondent court, is only a member, not
an employee, thereof. There being no employer-employee relationship, neither
can MPA be held liable for any vicarious liability for the respective exercise of
profession by its members nor be considered a joint tortfeasor as to be held
jointly and severally liable. 12 It further argues that there was erroneous reliance
on Customs Administrative Order No. 15-65 and the constitution and by-laws of
MPA, instead of the provisions of the Civil Code on damages which, being a
substantive law, is higher in category than the aforesaid constitution and by-laws
of a professional organization or an administrative order which bears no provision
classifying the nature of the liability of MPA for the negligence its member
pilots. 13
As for Capt. Gavino, counsel for MPA states that the former had retired from
active pilotage services since July 28, 1994 and has ceased to be a member of
petitioner pilots' association. He is not joined as a petitioner in this case since his
whereabouts are unknown. 14
FESC' s comment thereto relied on the competence of the Court of Appeals in
construing provisions of law or administrative orders as bases for ascertaining
the liability of MPA, and expressed full accord with the appellate court's holding of
solidary liability among itself. MPA and Capt. Gavino. It further avers that the
disputed provisions of Customs Administrative Order No. 15-65 clearly
established MPA's solidary liability. 15
On the other hand, public respondent PPA, likewise through representations by
the Solicitor General, assumes the same supportive stance it took in G.R. No.
130068 in declaring its total accord with the ruling of the Court of Appeals that
MPA is solidarily liable with Capt. Gavino and FESC for damages, and in its
application to the fullest extent of the provisions of Customs Administrative Order

No. 15-65 in relation to MPA's constitution and by-laws which spell out the
conditions of and govern their respective liabilities. These provisions are clear
and unambiguous as regards MPA's liability without need for interpretation or
construction. Although Customs Administrative Order No. 15-65 is a mere
regulation issued by an administrative agency pursuant to delegated legislative
authority to fix details to implement the law, it is legally binding and has the same
statutory force as any valid statute. 16
Upon motion 17 by FESC dated April 24, 1998 in G.R. No. 130150, said case was
consolidated with G.R. No. 130068. 18
Prefatorily, on matters of compliance with procedural requirements, it must be
mentioned that the conduct of the respective counsel for FESC and PPA leaves
much to be desired, to the displeasure and disappointment of this Court.
Section 2, Rule 42 of the 1997 Rules of Civil Procedure

19

incorporates the

former Circular No. 28-91 which provided for what has come to be known as the
certification against forum shopping as an additional requisite for petitions filed
with the Supreme Court and the Court of Appeals, aside from the other
requirements contained in pertinent provisions of the Rules of Court therefor, with
the end in view of preventing the filing of multiple complaints involving the same
issues in the Supreme Court, Court of Appeals or different divisions thereof or
any other tribunal or agency.

More particularly, the second paragraph of Section 2, Rule 42 provides:

xxx xxx xxx
The petitioner shall also submit together with the petition a certification
under oath that he has not theretofore commenced any other action
involving the same issues in the Supreme Court, the Court of Appeals or
different divisions thereof, or any other tribunal or agency; if there is such
other action or proceeding, he must state the status of the same; and if
he should thereafter learn that a similar action or proceeding has been

filed or is pending before the Supreme Court, the Court of Appeals or

different divisions thereof, or any other tribunal or agency, he undertakes
to promptly inform the aforesaid courts and other tribunal or agency
thereof within five (5) days therefrom. (Emphasis ours.)

For petitions for review filed before the Supreme Court, Section 4(e), Rule 45
specifically requires that such petition shall contain a sworn certification
against forum shopping as provided in the last paragraph of section 2, Rule
42.
The records show that the law firm of Del Rosario and Del Rosario through its
associate, Atty. Herbert A. Tria, is the counsel of record for FESC in both G.R.
No. 130068 and G.R. No. 130150.
G.R. No. 130068, which is assigned to the Court's Second Division, commenced
with the filing by FESC through counsel on August 22, 1997 of a verified motion
for extension of time to file its petition for thirty (30) days from August 28, 1997 or
until September 27, 1997. 20 Said motion contained the following certification
against forum shopping 21 signed by Atty. Herbert A. Tria as affiant:
CERTIFICATION
AGAINST FORUM SHOPPING
I/we hereby certify that I/we have not commenced any other action or
proceeding involving the same issues in the Supreme Court, the Court of
Appeals, or any other tribunal or agency; that to the best of my own
knowledge, no such action or proceeding is pending in the Supreme
Court, the Court of Appeals, or any other tribunal or agency; that if I/we
should thereafter learn that a similar action or proceeding has been filed
or is pending before the Supreme Court, the Court of Appeals, or any
other tribunal or agency, I/we undertake to report that fact within five (5)
days therefrom to this Honorable Court.

prLL

This motion having been granted, FESC subsequently filed its petition on
September 26, 1997, this time bearing a "verification and certification against

forum-shopping" executed by one Teodoro P. Lopez on September 24,

1997, 22 to wit:
VERIFICATION AND CERTIFICATION
AGAINST FORUM SHOPPING
in compliance with Section 4(e), Rule 45 in relation to Section 2, Rule 42
of the Revised Rules of Civil Procedure
I, Teodoro P. Lopez, of legal age, after being duly sworn, depose and
state:
1. That

am

the

Manager,

Claims

Department

of

Filsov Shipping Company, the local agent of petitioner in this case.

2. That I have caused the preparation of this Petition for Review on
Certiorari.
3. That I have read the same and the allegations therein contained are
true and correct based on the records of this case.
4. That I certify that petitioner has not commenced any other action or
proceeding involving the same issues in the Supreme Court or Court of
Appeals, or any other tribunal or agency, that to the best of my own
knowledge, no such action or proceeding is pending in the Supreme
Court, the Court of Appeals or any other tribunal or agency, that if I
should thereafter learn that a similar action or proceeding has been filed
or is pending before the Supreme Court, the Court of Appeals, or any
other tribunal or agency, I undertake to report the fact within five (5) days
therefrom to this Honorable Court. (emphasis supplied for emphasis.)

Reviewing the records, we find that the petition filed by MPA in G.R. No. 130150
then pending with the Third Division was duly filed on August 29, 1997 with a
copy thereof furnished on the same date by registered mail to counsel for
FESC. 23 Counsel of record for MPA, Atty. Jesus P. Amparo, in his verification
accompanying said petition dutifully revealed to the Court that

xxx xxx xxx

3. Petitioner has not commenced any other action or proceeding
involving the same issues in this Honorable Court, the Court of Appeals
or different Divisions thereof, or any other tribunal or agency, but to the
best of his knowledge, there is an action or proceeding pending in this
Honorable
entitled Far Eastern Shipping Co., Petitioner, vs. Philippine

Court,
Ports

Authority and Court of Appeals with a Motion for Extension of time to file
Petition For Review by Certiorari filed sometime on August 18, 1987. If
undersigned counsel will come to know of any other pending action or
claim filed or pending he undertakes to report such fact within five (5)
days of this Honorable Court. 24 (Emphasis supplied.)

Inasmuch as MPA's petition in G.R. No. 130150 was posted by registered mail on
August 29, 1997 and taking judicial notice of the average period of time it takes
local mail to reach its destination, by reasonable estimation it would be fair to
conclude that when FESC filed its petition in G.R. No. 130068 on September 26,
1997, it would already have received a copy of the former and would then have
knowledge of the pendency of the other petition initially filed with the First
Division. It was therefore incumbent upon FESC to inform the Court of that fact
through its certification against forum shopping. For failure to make such
disclosure, it would appear that the aforequoted certification accompanying the
petition in G.R. No. 130068 is defective and could have been a ground for
dismissal thereof.
Even assuming that FESC had not yet received its copy of MPA's petition at the
time it filed its own petition and executed said certification, its signatory did state
"that if I should thereafter learn that a similar action or proceeding has been filed
or is pending before the Supreme Court, the Court of Appeals or any other
tribunal or agency, I undertake to report the fact within five (5) days therefrom to
this Honorable Court." 25 Scouring the records page by page in this case, we find
that no manifestation concordant with such undertaking was then or at any other
time thereafter ever filed by FESC nor was there any attempt to bring such matter

to the attention of the Court. Moreover, it cannot feign non-knowledge of the

existence of such other petition because FESC itself filed the motion for
consolidation in G.R. No. 130150 of these two cases on April 24, 1998.
It is disturbing to note that counsel for FESC, the law firm of Del Rosario and Del
Rosario, displays an unprofessional tendency of taking the Rules for granted, in
this instance exemplified by its pro forma compliance therewith but apparently
without full comprehension of and with less than faithful commitment to its
undertakings to this Court in the interest of just, speedy and orderly
administration of court proceedings.
As between the lawyer and the courts, a lawyer owes candor, fairness and good
faith to the court. 26 He is an officer of the court exercising a privilege which is
indispensable in the administration of justice.

27 Candidness,

especially towards

the courts, is essential for the expeditious administration of justice. Courts are
entitled to expect only complete honesty from lawyers appearing and pleading
before them. 28 Candor in all dealings is the very essence of honorable
membership in the legal profession. 29 More specifically, a lawyer is obliged to
observe the rules of procedure and not to misuse them to defeat the ends of
justice. 30 It behooves a lawyer, therefore, to exert every effort and consider it his
duty to assist in the speedy and efficient administration of justice.

31

Being an

officer of the court, a lawyer has a responsibility in the proper administration of

justice. Like the court itself, he is an instrument to advance its ends the
speedy, efficient, impartial, correct and inexpensive adjudication of cases and the
prompt satisfaction of final judgments. A lawyer should not only help attain these
objectives but should likewise avoid any unethical or improper practices that
impede, obstruct or prevent their realization, charged as he is with the primary
task of assisting in the speedy and efficient administration of justice. 32
Sad to say, the members of said law firm sorely failed to observe their duties as
responsible members of the Bar. Their actuations are indicative of their
predisposition to take lightly the avowed duties of officers of the Court to promote
respect for law and for legal processes. 33 We cannot allow this state of things to
pass judicial muster.

LLjur

In view of the fact that at around the time these petitions were commenced, the
1997 Rules of Civil Procedure had just taken effect, the Court treated infractions
of the new Rules then with relative liberality in evaluating full compliance
therewith. Nevertheless, it would do well to remind all concerned that the penal
provisions of Circular No. 28-91 which remain operative provides, inter alia:
3. Penalties.
xxx xxx xxx
(c) The submission of a false certification under Par. 2 of the Circular
shall likewise constitute contempt of court, without prejudice to the filing
of criminal action against the guilty party. The lawyer may also be
subjected to disciplinary proceedings.

It must be stressed that the certification against forum shopping ordained under
the Rules is to be executed by the petitioner, and not by counsel. Obviously it is
the petitioner, and not always the counsel whose professional services have been
retained for a particular case, who is in the best position to know whether he or it
actually filed or caused the filing of a petition in that case. Hence, a certification
against forum shopping by counsel is a defective certification. It is clearly
equivalent to non-compliance with the requirement under Section 2, Rule 42 in
relation to Section 4, Rule 45, and constitutes a valid cause for dismissal of the
petition.

Hence, the initial certification appended to the motion for extension of time to file
petition in G.R. No. 130068 executed in behalf of FESC by Atty. Tria is
procedurally deficient. But considering that it was a superfluity at that stage of the
proceeding, it being unnecessary to file such a certification with a mere motion
for extension, we shall disregard such error. Besides, the certification
subsequently executed by Teodoro P. Lopez in behalf of FESC cures that defect
to a certain extent, despite the inaccuracies earlier pointed out. In the same vein,
we shall consider the verification signed in behalf of MPA by its counsel, Atty.
Amparo, in G.R. No. 130150 as substantial compliance inasmuch as it served the

purpose of the Rules of informing the Court of the pendency of another action or
proceeding involving the same issues.
It bears stressing that procedural rules are instruments in the speedy and efficient
administration of justice. They should be used to achieve such end and not to
derail it. 34
Counsel for PPA did not make matters any better. Despite the fact that, save for
the Solicitor General at the time, the same legal team of the Office of the Solicitor
General (OSG, for short) composed of Assistant Solicitor General Roman G. Del
Rosario and Solicitor Luis F. Simon, with the addition of Assistant Solicitor
General Pio C. Guerrero very much later in the proceedings, represented PPA
throughout the appellate proceedings in both G.R. No. 130068 and G.R. No.
130150 and was presumably fully acquainted with the facts and issues of the
case, it took the OSG an inordinately and almost unreasonably long period of
time to file its comment, thus unduly delaying the resolution of these cases. It
took several changes of leadership in the OSG from Silvestre H. Bello III to
Romeo C. dela Cruz and, finally, Ricardo P. Galvez before the comment in
behalf of PPA was finally filed.
In G.R. No. 130068, it took eight (8) motions for extension of time totaling 210
days, a warning that no further extensions shall be granted, and personal service
on the Solicitor General himself of the resolution requiring the filing of such
comment before the OSG indulged the Court with the long required comment on
July 10, 1998. 35 This, despite the fact that said office was required to file its
comment way back on November 12, 1997.

36 A

closer scrutiny of the records

likewise indicates that petitioner FESC was not even furnished a copy of said
comment as required by Section 5, Rule 42. Instead, a copy thereof was
inadvertently furnished to MPA which, from the point of view of G.R. No. 130068,
was a non-party. 37 The OSG fared slightly better in G.R. No. 130150 in that it
took only six (6) extensions, or a total of 180 days, before the comment was
finally filed. 38 And while it properly furnished petitioner MPA with a copy of its
comment, it would have been more desirable and expedient in this case to have

furnished its therein co-respondent FESC with a copy thereof, if only as a matter
of professional courtesy. 39
This undeniably dilatory disinclination of the OSG to seasonably file required
pleadings constitutes deplorable disservice to the tax-paying public and can only
be categorized as censurable inefficiency on the part of the government law
office. This is most certainly professionally unbecoming of the OSG.
Another thing that baffles the Court is why the OSG did not take the initiative of
filing a motion for consolidation in either G.R. No. 130068 or G.R. No. 130150,
considering its familiarity with the background of the case and if only to make its
job easier by having to prepare and file only one comment. It could not have been
unaware of the pendency of one or the other petition because, being counsel for
respondent in both cases, petitioner is required to furnish it with a copy of the
petition under pain of dismissal of the petition for failure otherwise.

40

Besides, in G.R. No. 130068. it prefaces its discussions thus

Incidentally, the Manila Pilots' Association (MPA), one of the defendantsappellants in the case before the respondent Court of Appeals, has
taken a separate appeal from the said decision to this Honorable Court,
which was docketed as G.R. No. 130150 and entitled "Manila Pilots'
Association,

Petitioner,

versus

Philippine

Ports

Authority

and Far Eastern Shipping Co., Respondents. 41

Similarly, in G.R. No. 130150, it states

Incidentally, respondent Far Eastern Shipping Co. (FESC) had also
taken an appeal from the said decision to this Honorable Court, docketed
as G.R. No. 130068, entitled "Far Eastern Shipping Co. vs. Court of
Appeals and Philippine Ports Authority."

42

We find here a lackadaisical attitude and complacency on the part of the OSG in
the handling of its cases and an almost reflexive propensity to move for countless
extensions, as if to test the patience of the Court, before favoring it with the timely
submission of required pleadings.

It must be emphasized that the Court can resolve cases only as fast as the
respective parties in a case file the necessary pleadings. The OSG, by
needlessly extending the pendency of these cases through its numerous motions
for extension, came very close to exhausting this Court's forbearance and has
regrettably fallen short of its duties as the People's Tribune.
The OSG is reminded that just like other members of the Bar, the canons under
the Code of Professional Responsibility apply with equal force on lawyers in
government service in the discharge of their official tasks.

43 These

ethical duties

are rendered even more exacting as to them because, as government counsel,

they have the added duty to abide by the policy of the State to promote a high
standard of ethics in public service. 44 Furthermore, it is incumbent upon the
OSG, as part of the government bureaucracy, to perform and discharge its duties
with the highest degree of professionalism, intelligence and skill

45 and

to extend

prompt, courteous and adequate service to the public. 46

Now, on the merits of the case. After a judicious examination of the records of
this case, the pleadings filed, and the evidence presented by the parties in the
two petitions, we find no cogent reason to reverse and set aside the questioned
decision. While not entirely a case of first impression, we shall discuss the
issues seriatim and, correlatively by way of a judicial once-over, inasmuch as the
matters raised in both petitions beg for validation and updating of well-worn
maritime jurisprudence. Thereby, we shall write finis to the endless finger-pointing
in this shipping mishap which has been stretched beyond the limits of judicial
tolerance.
The Port of Manila is within the Manila Pilotage District which is under
compulsory pilotage pursuant to Section 8, Article III of Philippine Ports Authority
Administrative Order No. 03-85, 47 which provides that:
SEC. 8. Compulsory Pilotage Service. For entering a harbor and
anchoring thereat, or passing through rivers or straits within a pilotage
district, as well as docking and undocking at any pier/wharf, or shifting

from one berth or another, every vessel engaged in coastwise and

foreign trade shall be under compulsory pilotage. . . .

In case of compulsory pilotage, the respective duties and responsibilities of the

compulsory pilot and the master have been specified by the same regulation in
this wise:
SEC. 11. Control of vessels and liability for damage. On compulsory
pilotage grounds, the Harbor Pilot providing the service to a vessel shall
be responsible for the damage caused to a vessel or to life and property
at ports due to his negligence or fault. He can only be absolved from
liability if the accident is caused by force majeure or natural calamities
provided he has exercised prudence and extra diligence to prevent or
minimize damage.
The Master shall retain overall command of the vessel even on pilotage
grounds whereby he can countermand or overrule the order or command
of the Harbor Pilot on board. In such event, any damage caused to a
vessel or to life and property at ports by reason of the fault or negligence
of the Master shall be the responsibility and liability of the registered
owner of the vessel concerned without prejudice to recourse against said
Master.
Such liability of the owner or Master of the vessel or its pilots shall be
determined by competent authority in appropriate proceedings in the
light of the facts and circumstances of each particular case.
SEC. 32. Duties and responsibilities of the Pilot or Pilots' Association.
The duties and responsibilities of the Harbor Pilot shall be as follows:
xxx xxx xxx
f) a pilot shall be held responsible for the direction of a vessel from the
time he assumes his work as a pilot thereof until he leaves it anchored or
berthed safely; Provided, however, that his responsibility shall cease at
the moment the Master neglects or refuses to carry out his order.

Customs Administrative Order No. 15-65 issued twenty years earlier likewise
provided in Chapter I thereof for the responsibilities of pilots:
Par. XXXIX. A Pilot shall be held responsible for the direction of a
vessel from the time he assumes control thereof until he leaves it
anchored free from shoal; Provided, That his responsibility shall cease at
the moment the master neglects or refuses to carry out his
instructions.

prLL

xxx xxx xxx

Par. XLIV. Pilots shall properly and safely secure or anchor vessels under
their control when requested to do so by the master of such vessels.
I. G.R. No. 130068
Petitioner FESC faults the respondent court with serious error in not holding MPA
and Capt. Gavino solely responsible for the damages caused to the pier. It avers
that since the vessel was under compulsory pilotage at the time with Capt.
Gavino in command and having exclusive control of the vessel during the docking
maneuvers, then the latter should be responsible for damages caused to the
pier. 48 It likewise holds the appellate court in error for holding that the master of
the ship, Capt. Kabankov, did not exercise the required diligence demanded by
the circumstances. 49

We start our discussion of the successive issues bearing in mind the evidentiary
rule in American jurisprudence that there is a presumption of fault against a
moving vessel that strikes a stationary object such as a dock or navigational aid.
In admiralty, this presumption does more than merely require the ship to go
forward and produce some evidence on the presumptive matter. The moving
vessel must show that it was without fault or that the collision was occasioned by
the fault of the stationary object or was the result of inevitable accident. It has
been held that such vessel must exhaust every reasonable possibility which the
circumstances admit and show that in each, they did all that reasonable care
required. 50 In the absence of sufficient proof in rebuttal, the presumption of fault

attaches to a moving vessel which collides with a fixed object and makes a prima
facie case of fault against the vessel. 51 Logic and experience support this
presumption:
The common sense behind the rule makes the burden a heavy one.
Such accidents simply do not occur in the ordinary course of things
unless the vessel has been mismanaged in some way. It is not sufficient
for the respondent to produce witnesses who testify that as soon as the
danger became apparent everything possible was done to avoid an
accident. The question remains, How then did the collision occur? The
answer must be either that, in spite of the testimony of the witnesses,
what was done was too little or too late or, if not, then the vessel was at
fault for being in a position in which an unavoidable collision would
occur. 52

The task, therefore, in these cases is to pinpoint who was negligent the
master of the ship, the harbor pilot or both.
A pilot, in maritime law, is a person duly qualified, and licensed, to conduct a
vessel into or out of ports, or in certain waters. In a broad sense, the term "pilot"
includes both (1) those whose duty it is to guide vessels into or out of ports, or in
particular waters and (2) those entrusted with the navigation of vessels on the
high seas. 53 However, the term "pilot" is more generally understood as a person
taken on board at a particular place for the purpose of conducting a ship through
a river, road or channel, or from a port. 54
Under English and American authorities, generally speaking, the pilot supersedes
the master for the time being in the command and navigation of the ship, and his
orders must be obeyed in all matters connected with her navigation. He becomes
the master pro hac vice and should give all directions as to speed, course,
stopping and reversing, anchoring, towing and the like. And when a licensed pilot
is employed in a place where pilotage is compulsory, it is his duty to insist on
having effective control of the vessel, or to decline to act as pilot. Under certain
systems of foreign law, the pilot does not take entire charge of the vessel, but is

deemed merely the adviser of the master, who retains command and control of
the navigation even in localities where pilotage is compulsory. 55
It is quite common for states and localities to provide for compulsory pilotage, and
safety laws have been enacted requiring vessels approaching their ports, with
certain exceptions, to take on board pilots duly licensed under local law. The
purpose of these laws is to create a body of seamen thoroughly acquainted with
the harbor, to pilot vessels seeking to enter or depart, and thus protect life and
property from the dangers of navigation. 56
In line with such established doctrines, Chapter II of Customs Administrative
Order No. 15-65 prescribes the rules for compulsory pilotage in the covered
pilotage districts, among which is the Manila Pilotage District, viz.
PARAGRAPH I. Pilotage for entering a harbor and anchoring thereat,
as well as docking and undocking in any pier or shifting from one berth
to another shall be compulsory, except Government vessels and vessels
of foreign governments entitled to courtesy, and other vessels engaged
solely in river or harbor work, or in a daily ferry service between ports
which shall be exempt from compulsory pilotage provisions of these
regulations; provided, however, that compulsory pilotage shall not apply
in pilotage districts whose optional pilotage is allowed under these
regulations.

Pursuant thereto, Capt. Gavino was assigned to pilot MV Pavlodar into Berth 4 of
the Manila International Port. Upon assuming such office as compulsory pilot,
Capt. Gavino is held to the universally accepted high standards of care and
diligence required of a pilot, whereby he assumes to have skill and knowledge in
respect to navigation in the particular waters over which his license extends
superior to and more to be trusted than that of the master.

57

A pilot should have a

thorough knowledge of general and local regulations and physical conditions

affecting the vessel in his charge and the waters for which he is licensed, such as
a particular harbor or river. He is not held to the highest possible degree of skill
and care, but must have and exercise the ordinary skill and care demanded by

the circumstances, and usually shown by an expert in his profession. Under

extraordinary circumstances, a pilot must exercise extraordinary care. 58
In Atlee vs. The Northwestern Union Packet Company, 59 Mr. Justice Miller
spelled out in great detail the duties of a pilot:
. . . (T)he pilot of a river steamer, like the harbor pilot, is selected for his
personal knowledge of the topography through which he steers his
vessel. In the long course of a thousand miles in one of these rivers, he
must be familiar with the appearance of the shore on each side of the
river as he goes along. Its banks, towns, its landings, its houses and
trees, are all landmarks by which he steers his vessel. The compass is of
little use to him. He must know where the navigable channel is, in its
relation to all these external objects, especially in the night. He must also
be familiar with all dangers that are permanently located in the course of
the river, as sand-bars, snags, sunken rocks or trees or abandoned
vessels or barges. All this he must know and remember and avoid. To do
this, he must be constantly informed of the changes in the current of the
river, of the sand-bars newly made, of logs or snags, or other objects
newly presented, against which his vessel might be injured.
xxx xxx xxx
It may be said that this is exacting a very high order of ability in a pilot.
But when we consider the value of the lives and property committed to
their control, for in this they are absolute masters, the high compensation
they receive, the care which Congress has taken to secure by rigid and
frequent examinations and renewal of licenses, this very class of skill, we
do not think we fix the standard too high.

Tested thereby, we affirm respondent court's finding that Capt. Gavino failed to
measure up to such strict standard of care and diligence required of pilots in the
performance of their duties. Witness this testimony of Capt. Gavino:
Court:

You have testified before that the reason why the vessel bumped the
pier was because the anchor was not released immediately or as
soon as you have given the order. Do you remember having
stated that?
A Yes, your Honor.
Q And you gave this order to the captain of the vessel?
A Yes, your Honor.
Q By that testimony, you are leading the Court to understand that if that
anchor was released immediately at the time you gave the order,
the incident would not have happened. Is that correct?
A Yes, sir, but actually it was only a presumption on my part because
there was a commotion between the officers who are in charge of
the dropping of the anchor and the captain. I could not understand
their language, it was in Russian, so I presumed the anchor was
not dropped on time.
Q So, you are not sure whether it was really dropped on time or not?
A I am not sure, your Honor.
xxx xxx xxx
Q You are not even sure what could have caused the incident. What
factor could have caused the incident?
A Well, in this case now, because either the anchor was not dropped on
time or the anchor did not hold, that was the cause of the incident,
your Honor. 60

It is disconcertingly riddled with too much incertitude and manifests a seeming

indifference for the possibly injurious consequences his commands as pilot may
have. Prudence required that he, as pilot, should have made sure that his
directions were promptly and strictly followed. As correctly noted by the trial court

Moreover, assuming that he did indeed give the command to drop the
anchor on time, as pilot he should have seen to it that the order was
carried out, and he could have done this in a number of ways, one of
which was to inspect the bow of the vessel where the anchor mechanism
was installed. Of course, Captain Gavino makes reference to a
commotion among the crew members which supposedly caused the
delay in the execution of the command. This account was reflected in the
pilot's report prepared four hours later, but Capt. Kavankov, while not
admitting whether or not such a commotion occurred, maintained that
the command to drop anchor was followed "immediately and precisely."
Hence, the Court cannot give much weight or consideration to this
portion of Gavino's testimony." 61

An act may be negligent if it is done without the competence that a reasonable

person in the position of the actor would recognize as necessary to prevent it
from creating an unreasonable risk of harm to another.

62 Those

who undertake

any work calling for special skills are required not only to exercise reasonable
care in what they do but also possess a standard minimum of special knowledge
and ability. 63
Every man who offers his services to another, and is employed, assumes to
exercise in the employment such skills he possesses, with a reasonable degree
of diligence. In all these employments where peculiar skill is requisite, if one
offers his services he is understood as holding himself out to the public as
possessing the degree of skill commonly possessed by others in the same
employment, and if his pretensions are unfounded he commits a species of fraud
on every man who employs him in reliance on his public profession. 64

cdphil

Furthermore, there is an obligation on all persons to take the care which, under
ordinary circumstances of the case, a reasonable and prudent man would take,
and the omission of that care constitutes negligence.

65 Generally,

the degree of

care required is graduated according to the danger a person or property

attendant upon the activity which the actor pursues or the instrumentality which
he uses. The greater the danger the greater the degree of care required. What is
ordinary under extraordinary of conditions is dictated by those conditions;
extraordinary risk demands extraordinary care. Similarly, the more imminent the
danger, the higher the degree of care. 66
We give our imprimatur to the bases for the conclusion of the Court of Appeals
that Capt. Gavino was indeed negligent in the performance of his duties:
xxx xxx xxx
. . . As can be gleaned from the logbook, Gavino ordered the left anchor
and two (2) shackles dropped at 8:30 o'clock in the morning. He ordered
the engines of the vessel stopped at 8:31 o'clock. By then, Gavino must
have realized that the anchor did not hit a hard object and was not
clawed so as to reduce the momentum of the vessel. In point of fact, the
vessel continued travelling towards the pier at the same speed. Gavino
failed to react. At 8:32 o'clock, the two (2) tugboats began to push the
stern part of the vessel from the port side but the momentum of the
vessel was not contained. Still, Gavino did not react. He did not even
order the other anchor and two (2) more shackles dropped to arrest the
momentum of the vessel. Neither did he order full-astern. It was only at
8:34 o'clock, or four (4) minutes, after the anchor was dropped that
Gavino reacted. But his reaction was even (haphazard) because instead
of arresting fully the momentum of the vessel with the help of the
tugboats, Gavino ordered merely "half-astern". It took Gavino another
minute to order a "full-astern". By then, it was too late. The vessel's
momentum could no longer be arrested and, barely a minute thereafter,
the bow of the vessel hit the apron of the pier. Patently, Gavino
miscalculated. He failed to react and undertake adequate measures to
arrest fully the momentum of the vessel after the anchor failed to claw to
the seabed. When he reacted, the same was even (haphazard). Gavino
failed to reckon the bulk of the vessel, its size and its cargo. He
erroneously believed that only one (1) anchor would suffice and even

when the anchor failed to claw into the seabed or against a hard object
in the seabed, Gavino failed to order the other anchor dropped
immediately. His claim that the anchor was dropped when the vessel was
only 1,000 feet from the pier is but a belated attempt to extricate himself
from the quagmire of his own insouciance and negligence. In sum, then,
Appellants' claim that the incident was caused by "force majeure" is
barren of factual basis.
xxx xxx xxx
The harbor pilots are especially trained for this job. In the Philippines,
one may not be a harbor pilot unless he passed the required
examination and training conducted then by the Bureau of Custom,
under Customs Administrative Order No. 15-65, now under the
Philippine Ports Authority under PPA Administrative Order 63-85.
Paragraph XXXIX of the Customs Administrative Order No. 15-65
provides that "the pilot shall be held responsible for the direction of the
vessel from the time he assumes control thereof, until he leaves it
anchored free from shoal: Provided, that his responsibility shall cease at
the moment the master neglects or refuse(s) to carry out his
instructions." The overall direction regarding the procedure for docking
and undocking the vessel emanates from the harbor pilot. In the present
recourse, Gavino failed to live up to his responsibilities and exercise
reasonable care or that degree of care required by the exigencies of the
occasion. Failure on his part to exercise the degree of care demanded by
the circumstances is negligence (Reese versus Philadelphia &
RR Co. 239 US 463, 60 L ed. 384, 57 Am Jur. 2d page 418). 67

This affirms the findings of the trial court regarding Capt. Gavino's negligence:
This discussion should not however, divert the court from the fact that
negligence in maneuvering the vessel must be attributed to Capt. Senen
Gavino. He was an experienced pilot and by this time should have long

familiarized himself with the depth of the port and the distance he could
keep between the vessel and port in order to berth safely.

68

The negligence on the part of Capt. Gavino is evident; but Capt. Kabankov is no
less responsible for the collision. His unconcerned lethargy as master of the ship
in the face of troublous exigence constitutes negligence.
While it is indubitable that in exercising his functions a pilot is in sole command of
the ship 69 and supersedes the master for the time being in the command and
navigation of a ship and that he becomes master pro hac vice of a vessel piloted
by him, 70 there is overwhelming authority to the effect that the master does not
surrender his vessel to the pilot and the pilot is not the master. The master is still
in command of the vessel notwithstanding the presence of a pilot. There are
occasions when the master may and should interfere and even displace the pilot,
as when the pilot is obviously incompetent or intoxicated and the circumstances
may require the master to displace a compulsory pilot because of incompetency
or physical incapacity. If, however, the master does not observe that a
compulsory pilot is incompetent or physically incapacitated, the master is justified
in relying on the pilot, but not blindly. 71

cdphil

The master is not wholly absolved from his duties while a pilot is on board his
vessel, and may advise with or offer suggestions to him. He is still in command of
the vessel, except so far as her navigation is concerned, and must cause the
ordinary work of the vessel to be properly carried on and the usual precaution
taken. Thus, in particular, he is bound to see that there is sufficient watch on
deck, and that the men are attentive to their duties, also that engines are
stopped, towlines cast off, and the anchors clear and ready to go at the pilot's
order. 72
A perusal of Capt. Kabankov' s testimony makes it apparent that he was remiss in
the discharge of his duties as master of the ship leaving the entire docking
procedure up to the pilot, instead of maintaining watchful vigilance over this risky
maneuver:

Q Will you please tell us whether you have the right to intervene in
docking of your ship in the harbor?
A No sir, I have no right to intervene in time of docking, only in case
there is imminent danger to the vessel and to the pier.
Q Did you ever intervene during the time that your ship was being
docked by Capt. Gavino'?
A No sir, I did not intervene at the time when the pilot was docking my
ship.
Q Up to the time it was actually docked at the pier, is that correct?
A No sir, I did not intervene up to the very moment when the vessel was
docked.
xxx xxx xxx
Atty. Del Rosario (to the witness)
Q Mr. Witness, what happened, if any, or was there anything unusual
that happened during the docking?
A Yes sir, our ship touched the pier and the pier was damaged .
Court (to the witness)
Q When you said touched the pier, are you leading the court to
understand that your ship bumped the pier'?
A I believe that my vessel only touched the pier but the impact was very
weak.
Q Do you know whether the pier was damaged as a result of that slight
or weak impact?
A Yes sir, after the pier was damaged.
xxx xxx xxx

Q Being most concerned with the safety of your vessel, in the

maneuvering of your vessel to the port, did you observe anything
irregular in the maneuvering by Capt. Gavino at the time he was
trying to cause the vessel to be docked at the pier?
A You mean the action of Capt. Gavino or his condition?
Court:
Q Not the actuation that conform to the safety maneuver of the ship to
the harbor?
A No sir, it was a usual docking.
Q By that statement of yours, you are leading the court to understand
that there was nothing irregular in the docking of the ship?
A Yes sir, during the initial period of the docking. there was nothing
unusual that happened.
Q What about in the last portion of the docking of the ship, was there
anything unusual or abnormal that happened?
A None Your Honor, I believe that Capt. Gavino thought that the anchor
could keep or hold the vessel.
Q You want us to understand, Mr. Witness, that the dropping of the
anchor of the vessel was not timely'?
A I don't know the depth of this port but I think, if the anchor was
dropped earlier and with more shackles, there could not have
been an incident.
Q So you could not precisely tell the court that the dropping of the
anchor was timely because you are not well aware of the seabed,
is that correct?
A Yes sir, that is right.
xxx xxx xxx

Q Alright, Capt. Kavankov, did you come to know later whether the
anchor held its ground so much so that the vessel could not
travel?
A It is difficult for me to say definitely. I believe that the anchor did not
hold the ship.
Q You mean you don't know whether the anchor blades stuck to the
ground to stop the ship from further moving ?
A Yes sir, it is possible.
Q What is possible'?
A I think, the 2 shackles were not enough to hold the vessel.
Q Did you know that the 2 shackles were dropped?
A Yes sir, I knew that.
Q If you knew that the shackles were not enough to hold the ship, did
you not make any protest to the pilot?
A No sir, after the incident, that was my assumption.
Q Did you come to know later whether that presumption is correct?
A I still don't know the ground in the harbor or the depths.
Q So from the beginning, you were not competent whether the 2
shackles were also dropped to hold the ship?

A No sir, at the beginning, I did not doubt it because I believe Capt.

Gavino to be an experienced pilot and he should be more aware
as to the depths of the harbor and the ground and I was confident
in his actions.
xxx xxx xxx
Solicitor Abad (to the witness)

Q Now, you were standing with the pilot on the bridge of the vessel
before the incident happened, were you not?
A Yes sir, all the time, I was standing with the pilot.
Q And so whatever the pilot saw, you could also see from that point of
view?
A That is right.
Q Whatever the pilot can read from the panel of the bridge, you also
could read, is that correct'?
A What is the meaning of panel?
Q All indications necessary for men on the bridge to be informed of the
movements of the ship?
A That is right.
Q And whatever sound the captain . . . Capt. Gavino would hear from the
bridge, you could also hear?
A That is right.
Q Now, you said that when the command to lower the anchor was given,
it was obeyed, is that right?
A This command was executed by the third mate and boatswain.
Court (to the witness)
Q Mr. Witness, earlier in today's hearing, you said that you did not
intervene with the duties of the pilot and that, in your opinion, you
can only intervene if the ship is placed in imminent danger, is that
correct?
A That is right, I did say that.

Q In your observation before the incident actually happened, did you

observe whether or not the ship, before the actual incident, the
ship was placed in imminent danger?
A No sir, I did not observe.
Q By that answer, are you leading the court to understand that because
you did not intervene and because you believed that it was your
duty to intervene when the vessel is placed in imminent danger to
which you did not observe any imminent danger thereof, you have
not intervened in any manner to the command of the pilot?
A That is right, sir.
xxx xxx xxx
Q Assuming that you disagreed with the pilot regarding the step being
taken by the pilot in maneuvering the vessel, whose command will
prevail, in case of imminent danger to the vessel?
A I did not consider the situation as having an imminent danger. I
believed that the vessel will dock alongside the pier.
Q You want us to understand that you did not see an imminent danger to
your ship, is that what you mean?
A Yes sir, up to the very last moment, I believed that there was no
imminent danger.
Q Because of that, did you ever intervene in the command of the pilot?
A Yes sir, I did not intervene because I believed that the command of the
pilot to be correct.
Solicitor Abad (to the witness)
Q As a captain of M/V Pavlodar, you consider docking maneuvers a
serious matter, is it not?
A Yes sir, that is right.

prcd

Q Since it affects not only the safety of the port or pier, but also the
safety of the vessel and the cargo, is it not?
A That is right.
Q So that, I assume that you were watching Capt. Gavino very closely at
the time he was making his commands ?
A I was close to him, I was hearing his command and being executed.
Q And that you were also alert for any possible mistakes he might
commit in the maneuvering of the vessel?
A Yes sir, that is right.
Q But at no time during the maneuver did you issue order contrary to the
orders Capt. Gavino made?
A No sir.
Q So that you were in full accord with all of Capt. Gavino' s orders?
A Yes sir.
Q Because, otherwise, you would have issued order that would
supersede his own order?
A In that case, I should take him away from his command or remove the
command from him.
Court (to the witness)
Q You were in full accord with the steps being taken by Capt. Gavino
because you relied on his knowledge, on his familiarity of the
seabed and shoals and other surroundings or conditions under
the sea, is that correct?
A Yes sir, that is right.
xxx xxx xxx
Solicitor Abad (to the witness)

Q And so after the anchors were ordered dropped and they did not take
hold of the seabed, you were alerted that there was danger
already on hand?
A No sir, there was no imminent danger to the vessel.
Q Do you mean to tell us that even if the anchor was supposed to take
hold of the bottom and it did not, there was no danger to the ship?
A Yes sir, because the anchor dragged on the ground later .
Q And after a few moments when the anchor should have taken hold the
seabed but not done (sic), as you expected, you already were
alerted that there was danger to the ship, is that correct?
A Yes sir, I was alerted but there was no danger.
Q And you were alerted that somebody was wrong?
A Yes sir, I was alerted.
Q And this alert you assumed was the ordinary alertness that you have
for normal docking?
A Yes sir, I mean that it was usual condition of any man in time of
docking to be alert.
Q And that is the same alertness when the anchor did not hold onto the
ground, is that correct?
A Yes sir, me and Capt. Gavino (thought) that the anchor will hold the
ground.
Q Since, as you said that you agreed all the while with the orders of
Capt. Gavino, you also therefore agreed with him in his failure to
take necessary precaution against the eventuality that the anchor
will not hold as expected?
Atty. Del Rosario:
May I ask that the question ...

Solicitor Abad:
Never mind, I will reform the question.
xxx xxx xxx
Solicitor Abad (to the witness)
Q Is it not a fact that the vessel bumped the pier?
A That is right, it bumped the pier.
Q For the main reason that the anchor of the vessel did not hold the
ground as expected?
A Yes sir, that is my opinion." 73

Further, on redirect examination, Capt. Kabankov fortified his apathetic

assessment of the situation:
Q Now, after the anchor was dropped, was there any point in time that
you felt that the vessel was in imminent danger.
A No, at that time, the vessel was not in imminent danger, sir." 74

This cavalier appraisal of the event by Capt. Kabankov is disturbingly antipodal to

Capt. Gavino's anxious assessment of the situation:
Q When a pilot is on board a vessel, it is the pilot's command which
should be followed at that moment until the vessel is, or goes to
port or reaches port?
A Yes, your Honor, but it does not take away from the Captain his
prerogative to countermand the pilot.
Q In what way'?
A In any case, which he thinks the pilot is not maneuvering correctly, the
Captain always has the prerogative to countermand the pilot's
order.

Q But insofar as competence, efficiency and functional knowledge of the

seabed which are vital or decisive in the safety (sic) bringing of a
vessel to the port, he is not competent?
A Yes, your Honor. That is why they hire a pilot in an advisory capacity,
but still, the safety of the vessel rest(s) upon the Captain, the
Master of the vessel.
Q In this case, there was not a disagreement between you and the
Captain of the vessel in the bringing of the vessel to port?
A No, your Honor.
Court:
May proceed.
Atty. Catris:
In fact, the Master of the vessel testified here that he was all along in
conformity with the orders you gave to him, and, as matter of fact,
as he said, he obeyed all your orders. Can you tell, if in the course
of giving such normal orders for the saf(e) docking of the MV
Pavlodar, do you remember of any instance that the Master of the
vessel did not obey your command for the safety docking of the
MV Pavlodar?
Atty. del Rosario:
Already answered, he already said yes sir.
Court:
Yes, he has just answered yes sir to the Court that there was no
disagreement insofar as the bringing of the vessel safely to the
port.
Atty. Catris:

But in this instance of docking of the MV Pavlodar, do you remember of

a time during the course of the docking that the MV Pavlodar was
in imminent danger of bumping the pier?
A When we were about more than one thousand meters from the pier, I
think, the anchor was not holding, so I immediately ordered to
push the bow at a fourth quarter, at the back of the vessel in order
to swing the bow away from the pier and at the same time, I
ordered for a full astern of the engine." 75

These conflicting reactions can only imply, at the very least, unmindful
disregard or, worse, neglectful relinquishment of duty by the shipmaster,
tantamount to negligence.
The findings of the trial court on this aspect is noteworthy:
For, while the pilot Gavino may indeed have been charged with the task
of docking the vessel in the berthing space, it is undisputed that the
master of the vessel had the corresponding duty to countermand any of
the orders made by the pilot, and even maneuver the vessel himself, in
case of imminent danger to the vessel and the port.
In fact, in his testimony, Capt. Kavankov admitted that all throughout the
man(eu)vering procedures he did not notice anything was going wrong,
and even observed that the order given to drop the anchor was done at
the proper time. He even ventured the opinion that the accident occurred
because the anchor failed to take hold but that this did not alarm him
because there was still time to drop a second anchor.
Under normal circumstances, the abovementioned facts would have
caused the master of a vessel to take charge of the situation and see to
the man(eu)vering of the vessel himself. Instead, Capt. Kavankov chose
to rely blindly upon his pilot, who by this time was proven ill-equipped to
cope with the situation.
xxx xxx xxx

It is apparent that Gavino was negligent but Far Eastern's employee

Capt. Kavankov was no less responsible for as master of the vessel he
stood by the pilot during the man(eu)vering procedures and was privy to
every move the latter made, as well as the vessel's response to each of
the commands. His choice to rely blindly upon the pilot's skills, to the
point that despite being appraised of a notice of alert he continued to
relinquish control of the vessel to Gavino, shows indubitably that he was
not performing his duties with the diligence required of him and therefore
may be charged with negligence along with defendant Gavino." 76

prcd

As correctly affirmed by the Court of Appeals

We are in full accord with the findings and disquisitions of the Court a
quo.
In the present recourse, Captain Viktor Kavankov had been a mariner for
thirty-two years before the incident. When Gavino was (in) the command
of the vessel, Kavankov was beside Gavino, relaying the commands or
orders of Gavino to the crew members-officers of the vessel concerned.
He was thus fully aware of the docking maneuvers and procedure
Gavino undertook to dock the vessel. Irrefragably, Kavankov was fully
aware of the bulk and size of the vessel and its cargo as well as the
weight of the vessel. Kavankov categorically admitted that, when the
anchor and two (2) shackles were dropped to the sea floor, the claws of
the anchor did not hitch on to any hard object in the seabed. The
momentum of the vessel was not arrested. The use of the two (2)
tugboats was insufficient. The momentum of the vessel, although a little
bit arrested, continued (sic) the vessel going straightforward with its bow
towards the port (Exhibit "A-1"). There was thus a need for the vessel to
move "full-astern" and to drop the other anchor with another shackle or
two (2), for the vessel to avoid hitting the pier. Kavankov refused to act
even as Gavino failed to act. Even as Gavino gave mere "half-astern"

order, Kavankov supinely stood by. The vessel was already about twenty
(20) meters away from the pier when Gavino gave the 'full-astern" order.
Even then, Kavankov did nothing to prevent the vessel from hitting the
pier simply because he relied on the competence and plan of Gavino.
While the "full-astern" maneuver momentarily arrested the momentum of
the vessel, it was, by then, too late. All along, Kavankov stood supinely
beside Gavino, doing nothing but relay the commands of Gavino.
Inscrutably, then, Kavankov was negligent.
xxx xxx xxx
The stark incompetence of Kavankov is competent evidence to prove the
unseaworthiness of the vessel. It has been held that the incompetence of
the navigator, the master of the vessel or its crew makes the vessel
unseaworthy (Tug Ocean Prince versus United States of America, 584
F.2nd, page 1151). Hence, the Appellant FESC is likewise liable for the
damage sustained by the Appellee."

77

We find strong and well-reasoned support in time-tested American maritime

jurisprudence, on which much of our laws and jurisprudence on the matter are
based, for the conclusions of the Court of Appeals adjudging both Capt. Gavino
and Capt. Kabankov negligent.
As early as 1869, the U.S. Supreme Court declared, through Mr. Justice Swayne,
in The Steamship China vs. Walsh, 78 that it is the duty of the master to interfere
in cases of the pilot's intoxication or manifest incapacity, in cases of danger which
he does not foresee, and in all cases of great necessity. The master has the
same power to displace the pilot that he has to remove any subordinate officer of
the vessel, at his discretion.
In 1895, the U.S. Supreme Court, this time through Mr. Justice Brown,
emphatically ruled that:
Nor are we satisfied with the conduct of the master in leaving the pilot in
sole charge of the vessel. While the pilot doubtless supersedes the

master for the time being in the command and navigation of the ship,
and his orders must be obeyed in all matters connected with her
navigation, the master is not wholly absolved from his duties while the
pilot is on board, and may advise with him, and even displace him in
case he is intoxicated or manifestly incompetent. He is still in command
of the vessel, except so far as her navigation is concerned, and bound to
see that there is a sufficient watch on deck, and that the men are
attentive to their duties.
. . . (N)otwithstanding the pilot has charge, it is the duty of the master to
prevent accident, and not to abandon the vessel entirely to the pilot; but
that there are certain duties he has to discharge (notwithstanding there is
a pilot on board) for the benefit of the owners. . . . that in well conducted
shipsthe master does not regard the presence of a duly licensed pilot in
compulsory pilot waters as freeing him from every obligation to attend to
the safety of the vessel; but that, while the master sees that his officers
and crew duly attend to the pilot's orders, he himself is bound to keep a
vigilant eye on the navigation of the vessel, and, when exceptional
circumstances exist, not only to urge upon the pilot to use every
precaution, but to insist upon such being taken." 79 (Italics for emphasis.)

In Jure vs. United

Fruit Co., 80 which,

like

the

present

petitions,

involved

compulsory pilotage, with a similar scenario where at and prior to the time of
injury, the vessel was in the charge of a pilot with the master on the bridge of the
vessel beside said pilot, the court therein ruled:
The authority of the master of a vessel is not in complete abeyance while
a pilot, who is required by law to be accepted, is in discharge of his
functions. . . . It is the duty of the master to interfere in cases of the pilot's
intoxication or manifest incapacity, in cases of danger which he does not
foresee, and in all cases of great necessity. The master has the same
power to displace the pilot that he has to remove any subordinate officer
of the vessel. He may exercise it, or not, according to his discretion.
There was evidence to support findings that plaintiff's injury was due to

the negligent operation of the Atenas, and that the master of that vessel
was negligent in failing to take action to avoid endangering a vessel
situated as the City of Canton was and persons or property thereon.
A phase of the evidence furnished support for the inferences . . . that he
negligently failed to suggest to the pilot the danger which was disclosed,
and means of avoiding such danger; and that the master's negligence in
failing to give timely admonition to the pilot proximately contributed to the
injury complained of. We are of opinion that the evidence mentioned
tended to prove conduct of the pilot, known to the master, giving rise to a
case of danger or great necessity, calling for the intervention of the
master. A master of a vessel is not without fault in acquiescing in
conduct of a pilot which involves apparent and avoidable danger,
whether such danger is to the vessel upon which the pilot is, or to
another vessel, or persons or property thereon or on shore. (Emphasis
ours.)

Still in another case involving a nearly identical setting, the captain of a vessel
alongside the compulsory pilot was deemed to be negligent, since, in the words
of the court, "he was in a position to exercise his superior authority if he had
deemed the speed excessive on the occasion in question. I think it was clearly
negligent of him not to have recognized the danger to any craft moored at Gravell
Dock and that he should have directed the pilot to reduce his speed as required
by the local governmental regulations. His failure amounted to negligence and
renders the respondent liable. 81 (Stress supplied.) Though a compulsory pilot
might be regarded as an independent contractor, he is at all times subject to the
ultimate control of the ship's master 82
In sum, where a compulsory pilot is in charge of a ship, the master being required
to permit him to navigate it, if the master observes that the pilot is incompetent or
physically incapable, then it is the duty of the master to refuse to permit the pilot
to act. But if no such reasons are present, then the master is justified in relying
upon the pilot, but not blindly. Under the circumstances of this case, if a situation
arose where the master, exercising that reasonable vigilance which the master of

a ship should exercise, observed, or should have observed, that the pilot was so
navigating the vessel that she was going, or was likely to go, into danger, and
there was in the exercise of reasonable care and vigilance an opportunity for the
master to intervene so as to save the ship from danger, the master should have
acted accordingly. 83 The master of a vessel must exercise a degree of vigilance
commensurate with the circumstances. 84
Inasmuch as the matter of negligence is a question of fact,

85 we

defer to the

findings of the trial court, especially as this is affirmed by the Court of

Appeals. 86 But even beyond that, our own evaluation is that Capt. Kabankov's
shared liability is due mainly to the fact that he failed to act when the perilous
situation should have spurred him into quick and decisive action as master of the
ship. In the face of imminent or actual danger, he did not have to wait for the
happenstance to occur before countermanding or overruling the pilot. By his own
admission, Capt. Kabankov concurred with Capt. Gavino's decisions, and this is
precisely the reason why he decided not to countermand any of the latter' s
orders. Inasmuch as both lower courts found Capt. Gavino negligent, by
expressing full agreement therewith Capt. Kabankov was just as negligent as
Capt. Gavino.
In general, a pilot is personally liable for damages caused by his own negligence
or default to the owners of the vessel, and to third parties for damages sustained
in a collision. Such negligence of the pilot in the performance of duty constitutes
a maritime tort. 87 At common law, a shipowner is not liable for injuries
inflicted exclusively by the negligence of a pilot accepted by a vessel
compulsorily. 88 The exemption from liability for such negligence shall apply if the
pilot is actually in charge and solely in fault. Since, a pilot is responsible only for
his own personal negligence, he cannot be held accountable for damages
proximately caused by the default of others,

89

or, if there be anything which

concurred with the fault of the pilot in producing the accident, the vessel master
and owners are liable.
Since the colliding vessel is prima facie responsible, the burden of proof is upon
the party claiming benefit of the exemption from liability. It must be shown

affirmatively that the pilot was at fault, and that there was no fault on the part of
the officers or crew, which might have been conducive to the damage. The fact
that the law compelled the master to take the pilot does not exonerate the vessel
from liability. The parties who suffer are entitled to have their remedy against the
vessel that occasioned the damage, and are not under necessity to look to the
pilot from whom redress is not always had for compensation. The owners of the
vessel are responsible to the injured party for the acts of the pilot, and they must
be left to recover the amount as well as they can against him. It cannot be
maintained that the circumstance of having a pilot on board, and acting in
conformity to his directions operate as a discharge of responsibility of the
owners. 90 Except insofar as their liability is limited or exempted by statute, the
vessel or her owner are liable for all damages caused by the negligence or other
wrongs of the owners or those in charge of the vessel. Where the pilot of a vessel
is not a compulsory one in the sense that the owner or master of the vessel are
bound to accept him, but is employed voluntarily, the owners of the vessel are, all
the more, liable for his negligent act. 91

In the United States, the owners of a vessel are not personally liable for the
negligent acts of a compulsory pilot, but by admiralty law, the fault or negligence
of a compulsory pilot is imputable to the vessel and it may be held liable
therefor in rem. Where, however, by the provisions of the statute the pilot is
compulsory only in the sense that his fee must be paid, and is not in compulsory
charge of the vessel, there is no exemption from liability.Even though the pilot is
compulsory, if his negligence was not the sole cause of the injury, but the
negligence of the master or crew contributed thereto, the owners are liable. 92 But
the liability of the ship in rem does not release the pilot from the consequences of
his own negligence. 93 The rationale for this rule is that the master is not entirely
absolved of responsibility with respect to navigation when a compulsory pilot is in
charge. 94
By way of validation and in light of the aforecited guidepost rulings in American
maritime cases, we declare that our rulings during the early years of this century

in City of Manila vs. Gambe, 95 China Navigation Co., Ltd. vs. Vidal, 96 and Yap
Tico & Co. vs. Anderson, et al. 97 have withstood the proverbial test of time and
remain good and relevant case law to this day.
City of Manila stands for the doctrine that the pilot who was in command and
complete control of a vessel, and not the owners, must be held responsible for an
accident which was solely the result of the mistake of the pilot in not giving proper
orders, and which did not result from the failure of the owners to equip the vessel
with the most modern and improved machinery. In China Navigation Co., the pilot
deviated from the ordinary and safe course, without heeding the warnings of the
ship captain. It was this careless deviation that caused the vessel to collide with a
pinnacle rock which, though uncharted, was known to pilots and local navigators.
Obviously, the captain was blameless. It was the negligence of the pilot alone
which was the proximate cause of the collision. The Court could not but then rule
that
The pilot in the case at bar having deviated from the usual and ordinary
course followed by navigators in passing through the strait in question,
without a substantial reason, was guilty of negligence, and that
negligence having been the proximate cause of the damages, he is liable
for such damages as usually and naturally flow therefrom. . . .

llcd

. . . (T)he defendant should have known of the existence and location of

the rock upon which the vessel struck while under his control and
management.. . .

Consistent with the pronouncements in these two earlier cases, but on a slightly
different tack, the Court in Yap Tico & Co. exonerated the pilot from liability for the
accident where the orders of the pilot in the handling of the ship were disregarded
by the officers and crew of the ship. According to the Court, a pilot is ". . .
responsible for a full knowledge of the channel and the navigation only so far as
he can accomplish it through the officers and crew of the ship, and I don't see
that he can be held responsible for damage when the evidence shows, as it does
in this case, that the officers and crew of the ship failed to obey his orders."

Nonetheless, it is possible for a compulsory pilot and the master of the vessel to
be concurrently negligent and thus share the blame for the resulting damage as
joint tortfeasors, 98 but only under the circumstances obtaining in and
demonstrated by the instant petitions.
It may be said, as a general rule, that negligence in order to render a person
liable need not be the sole cause of an injury. It is sufficient that his negligence,
concurring with one or more efficient causes other than plaintiff's, is the proximate
cause of the injury. Accordingly, where several causes combine to produce
injuries, person is not relieved from liability because he is responsible for only
one of them, it being sufficient that the negligence of the person charged with
injury is an efficient cause without which the injury would not have resulted to as
great an extent, and that such cause is not attributable to the person injured. It is
no defense to one of the concurrent tortfeasors that the injury would not have
resulted from his negligence alone, without the negligence or wrongful acts of the
other concurrent tortfeasor. 99 Where several causes producing an injury are
concurrent and each is an efficient cause without which the injury would not have
happened, the injury may be attributed to all or any of the causes and recovery
may be had against any or all of the responsible persons although under the
circumstances of the case, it may appear that one of them was more culpable,
and that the duty owed by them to the injured person was not the same. No
actor's negligence ceases to be a proximate cause merely because it does not
exceed the negligence of other actors. Each wrongdoer is responsible for the
entire result and is liable as though his acts were the sole cause of the injury. 100
There is no contribution between joint tortfeasors whose liability is solidary since
both of them are liable for the total damage. Where the concurrent or successive
negligent acts or omissions of two or more persons, although acting
independently, are in combination the direct and proximate cause of a single
injury to a third person, it is impossible to determine in what proportion each
contributed to the injury and either of them is responsible for the whole injury.
Where their concurring negligence resulted in injury or damage to a third party,

they become joint tortfeasors and are solidarily liable for the resulting damage
under Article 2194 101 of the Civil Code. 102
As for the amount of damages awarded by the trial court, we find the same to be
reasonable. The testimony of Mr. Pascual Barral, witness for PPA, on cross and
redirect examination, appears to be grounded on practical considerations:
Q So that the cost of the two additional piles as well as the (two) square
meters is already included in this P1,300,999.77.
A Yes sir, everything. It is (the) final cost already.
Q For the eight piles.
A Including the reduced areas and other reductions.
Q (A)nd the two square meters.
A Yes sir.
Q In other words, this P1,300,999.77 does not represent only for the six
piles that was damaged as well as the corresponding two piles.
A The area was corresponding, was increased by almost two in the
actual payment. That was why the contract was decreased, the
real

amount

was

P1,124,627.40

and

the

final

one

is

P1,300,999.77.
Q Yes, but that P1,300,999.77 included the additional two new posts.
A It was increased.
Q Why was it increased?
A The original was 48 and the actual was 46.
Q Now, the damage was somewhere in 1980. It took place in 1980 and
you started the repair and reconstruction in 1982, that took almost
two years?
A Yes sir.

Q May it not happen that by natural factors, the existing damage in 1980
was aggravated for the 2 year period that the damage portion was
not repaired?
A I don't think so because that area was at once marked and no vehicles
can park, it was closed.
Q Even if or even natural elements cannot affect the damage ?
A Cannot, sir.
xxx xxx xxx
Q You said in the cross-examination that there were six piles damaged
by the accident, but that in the reconstruction of the pier, PPA
drove and constructed 8 piles. Will you explain to us why there
was change in the number of piles from the original number?
A In piers where the piles are withdrawn or pulled out, you cannot redrive or drive piles at the same point. You have to redesign the
driving of the piles. We cannot drive the piles at the same point
where the piles are broken or damaged or pulled out. We have to
redesign, and you will note that in the reconstruction, we
redesigned such that it necessitated 8 piles.
Q Why not, why could you not drive the same number of piles and on the
same spot?
A The original location was already disturbed. We cannot get required
bearing capacity. The area is already disturbed.
Q Nonetheless, if you drove the original number of piles, six, on different
places, would not that have sustained the same load?
A It will not suffice, sir." 103

We quote the findings of the lower court with approval:

With regards to the amount of damages that is to be awarded to plaintiff,
the Court finds that the amount of P1,053,300.00 is justified. Firstly, the

doctrine of res ipsa loquitur best expounded upon in the landmark case
of Republic vs. Luzon Stevedoring Corp. (21 SCRA 279) establishes the
presumption that in the ordinary course of events the ramming of the
dock would not have occurred if proper care was used.
Secondly, the various estimates and plans justify the cost of the port
construction price. The new structure constructed not only replaced the
damaged one but was built of stronger materials to forestall the
possibility of any similar accidents in the future.
The Court inevitably finds that the plaintiff is entitled to an award of
P1,053,300.00 which represents actual damages caused by the damage
to

Berth

of

the

Manila

International

Port. Co-

defendants Far Eastern Shipping, Capt. Senen Gavino and Manila Pilots
Association are solidarily liable to pay this amount to plaintiff.

104

The Solicitor General rightly commented that the adjudicated amount of

damages represents the proportional cost of repair and rehabilitation of the
damaged section of the pier. 105
Except insofar as their liability is limited or exempted by statute, the vessel or her
owners are liable for all damages caused by the negligence or other wrongs of
the owners or those in charge of the vessel. As a general rule, the owners or
those in possession and control of a vessel and the vessel are liable for all
natural and proximate damages caused to persons or property by reason of her
negligent management or navigation. 106

FESC's imputation of PPA's failure to provide a safe and reliable berthing place is
obtuse, not only because it appears to be a mere afterthought, being tardily
raised only in this petition, but also because there is no allegation or evidence on
record about Berth No. 4 being unsafe and unreliable, although perhaps it is a
modest pier by international standards. There was, therefore, no error on the part
of the Court of Appeals in dismissing FESC's counterclaim.

II. G.R. No. 130150

This consolidated case treats on whether the Court of Appeals erred in holding
MPA jointly and solidarily liable with its member pilot, Capt. Gavino, in the
absence

of

employer-employee

relationship

and

in

applying Customs

Administrative Order No. 15-65, as basis for the adjudged solidary liability of MPA
and Capt. Gavino.
The pertinent provisions in Chapter I of Customs Administrative Order No. 15-65
are:
"PAR. XXVII. In all pilotage districts where pilotage is compulsory,
there shall be created and maintained by the pilots or pilots' association,
in the manner hereinafter prescribed, a reserve fund equal to P1,000.00
for each pilot thereof for the purpose of paying claims for damages to
vessels or property caused through acts or omissions of its members
while rendered in compulsory pilotage service. In Manila, the reserve
fund shall be P2,000.00 for each pilot.

prcd

PAR. XXVIII. A pilots' association shall not be liable under these

regulations for damage to any vessel, or other property, resulting from
acts of a member of an association in the actual performance of his duty
for a greater amount than seventy-five per centum (75 % ) of its
prescribed reserve fund; it being understood that if the association is
held liable for an amount greater than the amount above-stated, the
excess shall be paid by the personal funds of the member concerned.
PAR. XXXI. If a payment is made from the reserve fund of an
association on account of damages caused by a member thereof, and
he shall have been found at fault, such member shall reimburse the
association in the amount so paid as soon as practicable; and for this
purpose, not less than twenty-five per centum of his dividends shall be
retained each month until the full amount has been returned to the
reserve fund.

PAR. XXXIV. Nothing in these regulations shall relieve any pilots'

association or members thereof, individually or collectively, from civil
responsibility for damages to life or property resulting from the acts of
members in the performance of their duties.

Correlatively, the relevant provisions of PPA Administrative Order No. 03-85,

which timely amended this applicable maritime regulation, state:
Article IV
SEC. 17. Pilots' Association. The Pilots in a Pilotage District shall
organize themselves into a Pilots' Association or firm, the members of
which shall promulgate their own By-Laws not in conflict with the rules
and regulations promulgated by the Authority. These By-Laws shall be
submitted not later than one (1) month after the organization of the Pilots'
Association for approval by the General Manager of the Authority.
Subsequent amendments thereto shall likewise be submitted for
approval.
SEC. 25. Indemnity Insurance and Reserve Fund
a) Each Pilots' Association shall collectively insure its membership at the
rate of P50,000,00 each member to cover in whole or in part any
liability arising from any accident resulting in damage to vessel(s),
port facilities and other properties and/or injury to persons or
death which any member may have caused in the course of his
performance of pilotage duties. . . .
b) The Pilotage Association shall likewise set up and maintain a reserve
fund which shall answer for any part of the liability referred to in
the immediately preceding paragraph which is left unsatisfied by
the insurance proceeds, in the following manner:
1) Each pilot in the Association shall contribute from his own
account an amount of P4,000.00 (P6,000.00 in the Manila
Pilotage District) to the reserve fund. This fund shall not be

considered part of the capital of the Association nor

charged as an expense thereof.
2) Seventy-five percent (75 % ) of the reserve fund shall be set
aside for use in the payment of damages referred to above
incurred in the actual performance of pilots' duties and the
excess shall be paid from the personal funds of the
member concerned.
xxx xxx xxx
5) If payment is made from the reserve fund of an Association on
account of damage caused by a member thereof who is
found at fault, he shall reimburse the Association in the
amount so paid as soon as practicable; and for this
purpose, not less than twenty-five percentum (25%) of his
dividend shall be retained each month until the full amount
has been returned to the reserve fund. Thereafter, the pilot
involved shall be entitled to his full dividend.
6) When the reimbursement has been completed as prescribed in
the preceding paragraph, the ten percentum (10 %) and
the interest withheld from the shares of the other pilots in
accordance with paragraph (4) hereof shall be returned to
them.
c) Liability of Pilots' Association Nothing in these regulations shall
relieve any Pilots' Association or members thereof, individually or
collectively,

from

any

civil,

administrative

and/or

criminal

responsibility for damages to life or property resulting from the

individual acts of its members as well as those of the
Association's employees and crew in the performance of their
duties.

The Court of Appeals, while affirming the trial court's finding of solidary liability on
the part of FESC, MPA and Capt. Gavino, correctly based MPA's liability not on

the concept of employer-employee relationship between Capt. Gavino and itself,

but on the provisions of Customs Administrative Order No. 15-65:
The Appellant MPA avers that, contrary to the findings and disquisitions
of the Court a quo, the Appellant Gavino was not and has never been an
employee of the MPA but was only a member thereof. The Court a quo,
it is noteworthy, did not state the factual basis on which it anchored its
finding that Gavino was the employee of MPA. We are in accord with
MPA's pose. Case law teaches Us that, for an employer-employee
relationship to exist, the confluence of the following elements must be
established: (1) selection and engagement of employees; (2) the
payment of wages; (3) the power of dismissal; (4) the employer's power
to control the employees with respect to the means and method by which
the work is to be performed (Ruga versus NLRC, 181 SCRA 266).

cda

xxx xxx xxx

The liability of MPA for damages is not anchored on Article 2180 of the
New Civil Code as erroneously found and declared by the Court a quo
but under the provisions of Customs Administrative Order No. 1565, supra, in tandem with the by-laws of the MPA." 107

There being no employer-employee relationship, clearly Article 2180 108 of the

Civil Code is inapplicable since there is no vicarious liability of an employer to
speak of. It is so stated in American law, as follows:
The well established rule is that pilot associations are immune to
vicarious liability for the tort of their members. They are not the employer
of their members and exercise no control over them once they take the
helm of the vessel. They are also not partnerships because the
members do not function as agents for the association or for each other.
Pilots' associations are also not liable for negligently assuring the
competence of their members because as professional associations they
made no guarantee of the professional conduct of their members to the
general public. 109

Where under local statutes and regulations, pilot associations lack the necessary
legal incidents of responsibility, they have been held not liable for damages
caused by the default of a member pilot. 110 Whether or not the members of a
pilots' association are in legal effect a co-partnership depends wholly on the
powers and duties of the members in relation to one another under the provisions
of the governing statutes and regulations. The relation of a pilot to his association
is not that of a servant to the master, but of an associate assisting and
participating in a common purpose. Ultimately, the rights and liabilities between a
pilots' association and an individual member depend largely upon the
constitution, articles or by-laws of the association, subject to appropriate
government regulations. 111
No reliance can be placed by MPA on the cited American rulings as to immunity
from liability of a pilots' association in light of existing positive regulation under
Philippine law. The Court of Appeals properly applied the clear and unequivocal
provisions of Customs Administrative Order No. 15-65. In doing so, it was just
being consistent with its finding of the non-existence of employer-employee
relationship between MPA and Capt. Gavino which precludes the application of
Article 2180 of the Civil Code.
True, Customs Administrative Order No. 15 -65 does not categorically
characterize or label MPA's liability as solidary in nature. Nevertheless, a careful
reading and proper analysis of the correlated provisions lead to the conclusion
that MPA is solidarily liable for the negligence of its member pilots, without
prejudice to subsequent reimbursement from the pilot at fault.
Article 1207 of the Civil Code provides that there is solidary liability only when the
obligation expressly so states, or when the law or the nature of the obligation
requires solidarity. Plainly, Customs Administrative Order No. 15-65, which as an
implementing rule has the force and effect of law, can validly provide for solidary
liability. We note the Solicitor General's comment hereon, to wit:
. . . Customs Administrative Order No. 15-65 may be a mere rule and
regulation issued by an administrative agency pursuant to a delegated

authority to fix "the details" in the execution or enforcement of a policy

set out in the law itself. Nonetheless, said administrative order, which
adds to the procedural or enforcing provisions of substantive law, is
legally binding and receives the same statutory force upon going into
effect. In that sense, it has equal, not lower, statutory force and effect as
a regular statute passed by the legislature."

112

MPA's prayer for modification of the appellate court's decision under review by
exculpating petitioner MPA "from liability beyond seventy-five percent (75 % ) of
Reserve Fund" is unnecessary because the liability of MPA under Par. XXVIII of
Customs Administrative Order No. 15-65 is in fact limited to seventy-five percent
(75%) of its prescribed reserve fund, any amount of liability beyond that being for
the personal account of the erring pilot and subject to reimbursement in case of a
finding of fault by the member concerned. This is clarified by the Solicitor
General:
Moreover, contrary to petitioner's pretensions, the provisions of Customs
Administrative Order No. 15-65 do not limit the liability of petitioner as a
pilots' association to an absurdly small amount of seventy-five per
centum (75%) of the member pilots' contribution of P2,000.00 to the
reserve fund. The law speaks of the entire reserve fund required to be
maintained by the pilots' association to answer (for) whatever liability
arising from the tortious act of its members. And even if the association
is held liable for an amount greater than the reserve fund, the
association may not resist the liability by claiming to be liable only up to
seventy-five per centum (75 %) of the reserve fund because in such
instance it has the right to be reimbursed by the offending member pilot
for the excess." 113

WHEREFORE, in view of all of the foregoing, the consolidated petitions for

review are DENIED and the assailed decision of the Court of Appeals is
AFFIRMED in toto.

cdrep

|||

(Far Eastern Shipping Co. v. Court of Appeals, G.R. No. 130068, 130150,

October 01, 1998)

LORENZO JOSE, petitioner, vs. THE COURT OF APPEALS and

THE PEOPLE OF THE PHILIPPINES, respondents.
Carreon & Carreon and Zosimo D. de Mesa for petitioner.
Solicitor General Estelito P. Mendoza, Assistant Solicitor General
Eulogio Raquel-Santos and Solicitor Teodoro G. Bonifacio for respondents.
SYNOPSIS
Petitioner was convicted of illegal possession of explosives (handgrenade) that
was found on his person at the time of his notice of appeal and thereafter, a
motion for the reopening of the case to permit him to present, pursuant to a
reservation he made in the course of the trial, permit to possess the handgrenade
in question. The trial court denied the motion on the ground that it had lost
jurisdiction over the case elevated to the Court ofAppeals where petitioner prayed
for his acquittal or, in the alternative, for the remand of the case back to the
trial court for new trial. The appealed decision was affirmed. Motions for
reconsideration and/or new trial were filed but were denied, hence, this petition
for review which the Supreme Courtat first denied but later reconsidered and
treated as a special civil action.
The Supreme Court ruled that in the interest of justice and in view of the
circumstance of the

case,

petitioner

should

be

afforded

the

opportunity ofproducing exculpating evidence.

Judgment of conviction set aside and case remanded to the court a quo for new
trial.

SYLLABUS
1. CRIMINAL PROCEDURE; NEW TRIAL; GROUND OF NEWLY DISCOVERED
EVIDENCE. It is an established rule that for a new trial to be granted on the
ground of newly discovered evidence, it must be shown that (a) the evidence was
discovered after trial; (b) such evidence could not have been discovered and
produced at the trial even with the exercise of reasonable diligence; (c) the
evidence is material, not merely cumulative, corroborative, or impeaching; and (d)
it must go to the merits as ought to produce a different result if admitted.
2. ID.; ID.; GROUNDS OF SUBSTANTIAL JUSTICE. Petitioner does not justify
his motion for a new trial on newly discovered evidence, but rather on broader
grounds of substantial justice under Sec. 11, Rule 124 of the Rules of Court.
Correctly so, the authority of appellate court over an appealed case is broad and
ample enough to embrace situations where the court may grant a new trial for
reasons other than that provided in Sec. 13 of the same Rule, or Sec. 2, Rule
121 of the Rules of Court. While Sec. 13, rule 124, and Sec. 2, Rule 121 provide
for specific grounds for a new trial, i. e., newly discovered evidence and
errors of law or irregularities committed during the trial, Sec. 11, Rule 124 does
not so specify, thereby leaving to the sound discretion of the court the
determination, on a case to case basis, of what would constitute meritorious
circumstances warranting a new trial or retrial.
3. ID.; ID.; ID.; NEW TRIAL IN CRIMINAL CASES ORDERED ON GROUNDS
NOT SPECIFICALLY PROVIDED FOR BY LAW. Admittedly, courts may
suspend its own rules or except a case, from them for the purposes of justice or,
in a proper case, disregard them. In this jurisdiction, in not a few instances,
this Court ordered a new trial in criminal case on grounds not mentioned in the
statute, viz: retraction of witness (People vs. Oscar Castelo, et al., Phil. 54),
negligence or incompetency of counsel (U.S. vs. Gimenez, 34 Phil. 74 ),
improvident plea of guilty (People vs. Solacito, L-29209, August 25, 1969),
disqualification of an attorney de oficio to represent the accused in the trial (U.S.
vs. Laranja, 21 Phil. 500), and where a judgment was rendered on a

stipulation of facts entered into by both the presection and the defense (U.S. vs.
Pobre,11 Phil. 51).
4. ID.; ID.; ID.; NEW TRIAL WARRANTED IN CASE AT BAR. The
circumstances obtaining in the case at bar justify a reopening of petitioner's case
to afford him the opportunity of producing exculpating evidence. This is a
situation where a rigid application of rules of procedure must bow to the
overriding goals of courts of justice to render justice where justice is due to
secure to every individual all possible legal means to prove his innocence of a
crime of which he is charged. The failure of the Court of Appeals to appreciate
the merits of the situation, involving as it does the libertyof an individual, thereby
closing its ear to a plea that a miscarriage of justice be averted, constitute a
grave abuse of discretion which calls for relief from this Court.

DECISION

MUOZ PALMA, J :
p

Petitioner Lorenzo Jose who was convicted of illegal possession of explosives

(handgrenade) and sentenced to suffer imprisonment of five years, seeks a new
trial which was denied him by the Court of First Instance of Pampanga, Branch
III, and by respondent Court of Appeals.
Petitioner thus poses one legal issue for the court to resolve, viz: did respondent
appellate court commit an error of law and gravely abuse its discretion when it
denied petitioner's motion for new trial "for the reception of (1) the written
permit of petitioner to possess and use handgrenade, and (2) the written
appointment of petitioner as PC agent with Code No. P-36-68 and Code Name
'Safari' (both documents are dated 31 January 1968)"? 1
The following incidents are not in dispute:
On

February

8,

1968,

at

the poblacion of Floridablanca,

Pampanga,

petitioner Jose was arrested by the local police leading to the filing with

the Court ofFirst Instance of Pampanga, Branch III of several criminal cases
against him to wit: illegal discharge of firearm (Crim. Case 6235), robbery (Crim.
Case 6236) and illegal possession of explosives (Crim. Case 6237). These three
cases were jointly tried after which the trial judge, Hon. Honorio Romero, in a
decision dated December 15, 1969, and promulgated on January 15,
1970 2 acquitted

accused

Lorenzo Jose of illegal

discharge of firearm

and

robbery, but convicted him for illegal possession of the handgrenade that was
found on his person at the time of his arrest.
After promulgation of the judgment, petitioner on that same day, filed his
notice of appeal. Nine days thereafter or more particularly on January 24, 1970,
petitioner filed a motion praying that the case be reopened to permit him to
present, pursuant to a reservation he had made in the course of the trial, a permit
to possess the handgrenade in question. The trial court in its order of January 30,
1970 denied the motion mainly on the ground that it had lost jurisdiction over the
case in view of the perfection of the appeal by the accused on the very date the
decision was promulgated. 3
The

records of Criminal

Case

the Court of Appeals where

6237

petitioner

as

were

then

elevated

to

raised

the

accused-appellant

issues of (1) an erroneous conviction for illegal possession of explosives when

there was no proof of an essential element of the crime, and (2) erroneous
denial of his motion to reopen the case for the reception of his permit to possess
the handgrenade. 4 In his brief, Lorenzo Jose prayed for his acquittal or in the
alternative for the remand of the case back to the trial court for a new trial.
Resolving

the

decision of March 8,

appeal,
1974,

respondent
affirming

Appellate Court, 5 rendered

the

findings of fact

and

its
the

judgment of convictionof the court a quo, and declaring that no. reversible error
was committed by the latter when it denied the reopening of the case as
the court had lost its "power to change, modify, or alter its decision." 6
A motion for reconsideration and/or new trial was filed with a plea that
"assuming arguendo that

the court a

quo lacked

jurisdiction

to

act

upon

appellant's motion for new trial because of the perfection of the appeal, this
Honorable Court before which said motion was reiterated and which has
competence to act thereon should have granted the same if for no other
reason than to prevent a miscarriage of justice which is the inevitable resultof its
denial." 7 This motion for reconsideration was denied in respondent court's
resolution of April 3, 1974. 8
A

second

motion

for

reconsideration

and/or

new

trial

was

filed

by

Lorenzo Jose 9 but this was also denied by the appellate court in a Resolution
promulgated on July 24, 1974. 10
Forthwith, appellant Lorenzo Jose assisted by counsel, Atty. Francisco Carreon,
filed with Us this petition for review which We denied outright on September 6,
1974, "the question raised being factual and for insufficient showing that the
findings of facts by respondent court are unsupported by substantial evidence,
and for lack of merit."
A motion for reconsideration was filed by petitioner stressing that the following
grounds

should

justify

this Court to

review

the

ruling of respondent

appellate court, to wit:

"1. petitioner's plight is of compelling human and legal interest, and his
being imprisoned for five (5) years when there is indubitable exculpatory
evidence on hand is a result so harsh that the Honorable Court may
well undertake a review of the case just to satisfy itself of the justice and
inevitability of such a result;
"2. a

question of substance

not

heretofore

determined

by

the

Honorable Court is involved, as the evidence sought to be introduced at

the new trial is, technically, not newly discovered; and
"3. the denial of a new trial in the circumstances mentioned in his abovequoted

statement of the

main

legal

issue,

is

contrary

to

the

decisions ofthis Honorable Court because under these decisions, the

new trial should have been granted since there is a 'strong, compelling
reason' in this case for granting the relief prayed for, such strong

compelling reason being the very strong probability of petitioner's

acquittal if a new trial were granted. (Workmen's Insurance Co. vs.
Augusto, 40 SCRA 123; Sison vs. Gatchalian, 51 SCRA 262; Rubio vs.
Mariano 52 SCRA 338; Montecines vs. Court ofAppeals, 53 SCRA 14;
Posadas vs. Court of Appeals, L-38071, April 25, 1974; please see
Annotation: 52 SCRA 346. . . ." (pp. 157-158, rollo).

The Solicitor General opposed the granting of the foregoing motion for
reconsideration claiming that there was neither a denial of "substantial justice nor
error of any sort on the part of respondent Court of Appeals, affirming the
judgment of conviction," and that it being admitted by petitioner that the evidence
sought to be introduced by him at the new trial is not newly discovered evidence,
the denial of the new trial "visibly appears as correct". This Opposition drew a
lengthy reply from petitioner's counsel.
On February 13, 1975, a Manifestation was submitted by the Solicitor General
informing

the Court that

in

Lorenzo Jose both

view of the

before

"persistence of accused
this

petitioner

Honorable Court and

respondent Court of Appeals as to his alleged existing appointment as PC Agent

and/or authority to possess handgrenade," in the interest of justice, he was
constrained to make pertinent inquiries from the PC Chief, Gen. Fidel V. Ramos
who in reply sent his letter dated December 27, 1974 with enclosures, xerox
copies of which are being attached to the manifestation as Annexes A, B, C, C-1
and D. 11
Annex A of the above-mentioned Manifestation of the Solicitor General reads:
"Solicitor General Estelito P. Mendoza Padre Faura, Manila.
Dear Solicitor General Mendoza:
"With reference to your letter of December 5, 1974, please be informed
that

Colonel

Pedrito

C.

de

Guzman,

who

is

now

Provincial

Commander ofSorsogon Constabulary Command, confirmed that he

executed an affidavit on May 4, 1974 at Sorsogon, Sorsogon stating that

he appointed Mr. Lorenzo Jose of Betis, Guagua, Pampanga as PC

Agent on January 31, 1968.
"The incumbent Provincial Commander of Pampanga Constabulary
Command also confirmed the appointment of Lorenzo Jose as PC agent
during the year 1968.
"Attached herewith are the pertinent papers related to the said
appointment.
"Sincerely yours,
(Sgd.) FIDEL V. RAMOS
FIDEL V. RAMOS
Major General, AFP
Chief of Constabulary"
(p. 191, rollo)
Inclosure:
Appointment paper
of subject person dtd
Jan. 31, 1968 with
Personal History
Statement

Annex

is

the

appointment

dated

January 31,

1968 of petitioner

Lorenzo Jose as a PC Agent of the Pampanga Constabulary Command with

Code Number P-36-68 and Code Name "Safari" with expiration on December 31,
1968, the pertinent portion of which We quote:
"This Headquarters will, from time to time, provide you firearms and such
other equipment which it may deem necessary for your personal
protection on the need basis which will be covered by separate written
authority." (p. 192, rollo).

In a Resolution of February 21, 1975, the Court resolved to set aside the
denial of this petition for review, to give due course and consider the Petition as a

special civil action. In another Resolution of April 4, 1975, the parties were given
time to submit their respective memorandum.
This is a situation where a rigid application of rules of procedure must bow to the
overriding goal of courts of justice to render justice where justice is due to
secure to every individual all possible legal means to prove his innocence of a
crime of which he is charged. The failure of the Court of Appealsto appreciate the
merits of the situation, involving as it does the liberty of an individual, thereby
closing its ear to a plea that a miscarriage of justice be averted, constitutes a
grave abuse of discretion which calls for relief from this Court.
At the outset, We give due credit to the Solicitor General and his staff for
upholding the time-honored principle set forth in perspicuous terms by
thisCourt in Suarez vs. Platon, et al., that a prosecuting officer, as the
representative of a sovereignty whose obligation and interest in a criminal
prosecution is not that it shall win a case but that justice shall be done, has the
solemn responsibility to assure the public that while guilt shall not escape,
innocence

shall

not

suffer.

(69

Phil.

556,

564-565,

quoting

Justice

Sutherland of the U.S. Supreme Court in 69 U.S. Law Review, June, 1935, No. 6,
p. 309) The Solicitor General now concedes that the interests of justice will best
be served by remanding this case to the court of origin for a new trial.
We do not question the correctness of the findings of the Court of Appeals that
the evidence sought to be presented by the petitioner do not fall under the
category of newly-discovered evidence because the same his alleged
appointment as an agent of the Philippine Constabulary and a permit to possess
a handgrenade were supposed to be known to petitioner and existing at the
time of trial and not discovered only thereafter.
It is indeed an established rule that for a new trial to be granted on the
ground of newly discovered evidence, it must be shown that (a) the evidence was
discovered after trial; (b) such evidence could not have been discovered and
produced at the trial even with the exercise of reasonable diligence; (c) the

evidence is material, not merely cumulative, corroborative, or impeaching; and (d)

it must go to the merits as ought to produce a different result if admitted. 12
However, petitioner herein does not justify his motion for a new trial on newly
discovered evidence, but rather on broader grounds of substantial justice under
Sec. 11, Rule 124 of the Rules of Court which provides:
"Power of appellate court on

appeal.

Upon

appeal

from

judgment of the Court of First Instance, the appellate court may reverse,
affirm, or modify the judgment and increase or reduce the penalty
imposed by the trial court, remand the case to the Court of First Instance
for new trial or retrial, or dismiss the case."

Petitioner

asserts,

and

correctly

so,

that

the

authority of respondent

appellate court over an appealed case is broad and ample enough to embrace
situations as the instant case where the court may grant a new trial or a retrial for
reasons other than that provided in Section 13 of the same Rule, or Section 2,
Rule 121 of the Rules of Court. 13 While Section 13, Rule 124, and Section 2,
Rule 121, provide for specific grounds for a new trial, i.e. newly discovered
evidence, and errors of law or irregularities committed during the trial, Section 11,
Rule 124 quoted above does not so specify, thereby leaving to the sound
discretion of the court the determination, on a case to case basis, of what would
constitute meritorious circumstances warranting a new trial or retrial.
Surely, the Rules of Court were conceived and promulgated to aid and not to
obstruct the proper administration of justice, to set forth guidelines in the
dispensation of justice but not to bind and chain the hands that dispense justice,
for otherwise, courts will be mere slaves to or robots of technical rules,
shorn of judicial discretion.
Thus, admittedly, courts may suspend its own rules or except a case from them
for the purposes of justice 14 or, in a proper case, disregard them.

15

In this

jurisdiction, in not a few instances, 15 this Court ordered a new trial in criminal
cases

on

grounds

not

retraction ofwitness, 16 negligence

mentioned
or

in

the

statute, viz:

incompetency of counsel, 17 improvident

plea of guilty, 18 disqualification of an attorney de oficio to represent the accused

in the trial court, 19 and where a judgment was rendered on a stipulation of facts
entered into by both the prosecution and the defense. 20
Characteristically, a new trial has been described as a new invention to temper
the severity of a judgment or prevent the failure of justice. 21
Petitioner cites certain peculiar circumstances obtaining in the case now before
Us which may be classified as exceptional enough to warrant a new trial if only to
afford human opportunity to establish his innocence of the crime charged.
Thus petitioner was facing a criminal prosecution for illegal possession of a
handgrenade in the court below. He claimed to be an agent of the Philippine
Constabulary with a permit to possess explosives such as the handgrenade in
question. However, he found himself in a situation where he had to make a
choice

reveal his

identity

as

an

undercover

agent of the

Philippine

Constabulary assigned to perform intelligence work on subversive activities and

face possible reprisals or even liquidation at the hands of the dissidents
considering

that

Floridablanca,

the

site of the

incident,

was

in

the

heart of "Huklandia", or ride on the hope of a possible exoneration or acquittal

based on insufficiency of the evidence of the prosecution. Without revealing his
identity as an agent of the Philippine Constabulary, he claimed before the trial
judge that he had a permit to possess the handgrenade and prayed for time to
present the same. The permit however could not be produced because it would
reveal his intelligence work activities. Came the judgment of conviction and with it
the staggering impact of a five-year imprisonment. The competent authorities
then realized that it was unjust for this man to go to jail for a crime he had not
committed,

hence,

came

the

desired

evidence

concerning

petitioner's

appointment as a Philippine Constabulary agent and his authority to possess a

handgrenade for the protection of his person, but, it was too late according to the
trial court because in the meantime the accused had perfected his appeal.
We find and hold that the above circumstances justify a reopening of petitioner's
case to afford him the opportunity of producing exculpating evidence. An outright

acquittal from this Court which petitioner seeks as an alternative relief is not
proper. As correctly stressed by the Solicitor General, the People is to be given
the chance of examining the documentary evidence sought to be produced,
and of cross-examining the persons who executed the same, as well as the
accused himself, now petitioner, on his explanation for the non-production of the
evidence during the trial.
PREMISES

CONSIDERED,

We

hereby

set

aside

the

judgment of conviction of the herein petitioner, Lorenzo Jose, and remand the
case to the court a quofor a new trial only for the purpose of allowing said
accused to present additional evidence in his defense. The trial court shall inform
this Court of the final outcome of the case within a reasonable time. Without
pronouncement as to costs.

So ordered.
Teehankee, (Chairman), Makasiar, Esguerra and Martin, JJ., concur.
|||

(Jose v. Court of Appeals, G.R. No. L-38581, March 31, 1976)

THE PEOPLE OF
PHILIPPINES, petitioner, vs. HONORABLE

THE
JUDGE

HERNANDO PINEDA of the Court of First Instance of Lanao

del Norte; and TOMAS NARBASA, TAMBAC ALINDO, and
RUFINO BORRES, respondents.
Dominador L. Padilla for petitioner.
Narbasa, Tambac Alindo & Borres for respondents.

SYLLABUS
1. CRIMINAL LAW; CRIMINAL PROCEDURE; MURDER; SEPARATE SHOTS
KILLING VARIOUS VICTIMS GIVE RISE TO SEPARATE CRIMES; SEPARATE
INFORMATIONS SHOULD BE FILED. Where the facts alleged are that
defendants fired guns in rapid succession from outside the house of a family,
killing the father, and that defendants then forcibly entered the house, letting
loose several shots, killing all the three minor children and wounding the mother,
the City Fiscal correctly presented five separate informations four for murder
and one for frustrated murder. When various victims expire from separate shots,
such acts constitute separate and distinct crimes.
2. ID.; COMPLEX CRIMES; SINGLE ACT, NOT SINGLE IMPULSE, IS
DECISIVE. To apply the first half of Article 48 of the Revised Penal Code,
which punishes as a complex crime a single act constituting two or more grave or
less grave felonies, there must be singularity of criminal act; singularity of criminal
impulse is not written into the law.
3. CRIMINAL PROCEDURE; CASES OF RELATED OFFENSES MAY BE TRIED
JOINTLY. To obviate the necessity of trying five cases instead of one is a
laudable purpose but cannot, by itself, justify a trial judge to order the fiscal to file
only one information for multiple murder. Section 15, Rule 119, Rules of Court,
confers upon the judge the power to try these cases jointly.
4. PROSECUTION OF OFFENSES; FISCAL NOT COMPELLED TO FILE A
PARTICULAR CHARGE; REASONS THEREFORE. A prosecuting attorney is
under no compulsion to file a particular criminal information where he is not
convinced that he has evidence to prop up the averments thereof, or that the
evidence at hand points to a different conclusion, notwithstanding the possibility
of abuses on his part, because he should not be unduly compelled to work
against his conviction and, in case of doubt, should be given the benefit thereof.
A contrary rule may result in courts being unnecessarily swamped with
unmeritorious cases and, worse still, a criminal suspect's right to due process
may be transgressed.

5. ID.; FISCAL'S OPINION ON WHAT CRIME IS TO BE CHARGED NORMALLY

PREVAILS. As the question of instituting a criminal charge is addressed to the
sound discretion of the investigating fiscal, in a clash of views as what crime is to
be charged, between the judge who did not investigate and the fiscal who did, or
between the fiscal and the offended party or the defendant, those of the fiscal's
should normally prevail.

DECISION

SANCHEZ, J :
p

Respondents Tomas Narbasa, Tambac Alindo and Rufino Borres stand indicted
before the Court of First Instance of Lanao del Norte, as principals, in five (5)
separate cases, four for murder and one for frustrated murder, viz:
Criminal Case 1246 murder of Neceforo Mendoza;
Criminal Case 1247 murder of Epifania Mendoza;
Criminal Case 1248 frustrated murder of Valeriana Bontilao de
Mendoza;
Criminal Case 1249 murder of Teofilo Mendoza; and
Criminal Case 1250 murder of Marcelo Mendoza.

The five informations were planted upon facts gathered by the prosecuting
attorney from his investigation. Of course, the truth of these facts is yet to be
tested in the crucible of a full-dress trial on the merits.
The indictments are bottomed upon the following alleged pivotal facts:
On the night of July 29, 1965, the occupants of the home of the spouses Teofilo
Mendoza and Valeriana Bontilao de Mendoza in Puga-an. City of Iligan, were
asleep. It was then that guns (rifle, caliber 22) and pali-untod (home-made gun)
were fired in rapid succession from outside the house. Teofilo Mendoza fell dead.

Thereafter, defendants below destroyed the door of the house, entered therein
and let loose several shots killing Neceforo Mendoza, Epifania Mendoza and
Marcelo Mendoza all minor children of the couple and wounding Valeriana
Bontilao de Mendoza.
Two of the three defendants in the five criminal cases heretofore listed Tomas
Narbasa and Tambac Alindo moved for a consolidation thereof "into one (1)
criminal case." Their plea is that "said cases arose out of the same incident and
motivated by one impulse."
Giving the nod to defendant's claim, respondent Judge, in an order dated May
13, 1966, directed the City Fiscal to unity all the five criminal cases, and to file
one single information in Case 1246. He also ordered that the other four cases,
Nos. 1247, 1248, 1249 and 1250 "be dropped from the docket."
The City Fiscal balked at the foregoing order, sought reconsideration thereof,
upon the ground that "more than one gun was used, more than one shot was
fired and more than one victim was killed." The defense opposed.
On May 31, 1966, respondent Judge denied the motion to reconsider. He took
the position that the acts complained of "stemmed out of a series of continuing
acts on the part of the accused, not by different and separate sets of shots,
moved by one impulse and should therefore be treated as one crime to the series
of shots killed more than one victim"; and that only one information for multiple
murder should be filed, to "obviate the necessity of trying five cases instead of
one."
Primarily to annul respondent Judge's orders of May 13, 1966 and May 31, 1966,
as having been issued without or in excess of jurisdiction and/or with grave abuse
of discretion, the People came to this Court on certiorari with a prayer for a writ of
preliminary injunction, and for other reliefs.
This Court, on July 1, 1966, issued the cease-and-desist order prayed for.
The question here presented, simply is this: Should there be one information,
either for the complex crime of murder and frustrated murder or for the complex

crime of robbery with multiple homicide and frustrated homicide? Or, should the
five indictments remain as they are?
1. The case before us calls into question the applicability of Article 48 of the
Revised Penal Code, as amended, which reads:
"ARTICLE 48. Penalty for complex crimes. When a single act
constitutes two or more grave or less grave felonies, or when an offense
is a necessary means for committing the other, the penalty for the most
serious crime shall be imposed, the same to be applied in its maximum
period."

Read as it should be, Article 48 provides for two classes of crimes where a single
penalty is to be imposed: first, where a single act constitutes two or more grave
or less grave felonies (delito compuesto); and, second, when an offense is a
necessary means for committing the other (delito complejo). 1
Best exemplified by the first of the two cases is where one shot from a gun results
in the death of two or more persons. Jurisprudence teaches that, in this factual
setting, the complex crime defined in the first part of Article 48 finds
application. 2 A similar rule obtains where one stabbed another and the weapon
pierced the latter's body through and through and wounded another. The first
died instantaneously; the second, seven days later, This Court convicted the
assailant of double murder. 3 So where a person plants a bomb in an airplane
and the bomb explodes with the result that a number of persons are killed, that
single act again produces a complex crime. 4
A different rule governs where separate and distinct acts result in a number killed.
Deeply rooted is the doctrine that when various victims expire from separate
shots, such acts constitute separate and distinct crimes. 5 Thus, where the six
defendants, with others (armed with pistols, carbines and also a submachine gun
and Grand rifles), fired volleys into a house killing eleven and wounding several
others, each of the said accused is "guilty of as many crimes of murder as there
were deaths (eleven)." 6 Again, eleven persons were indicted for quadruple
murder with the use of bolos, a pistol, a barbed arrow and a piece of bamboo

 of a man, his common-law wife, and their two children in cold blood. The
accused were found guilty by the trial court of such offense. This Court, in
reversing this ruling below, held that "[t]he four victims were not killed by a single
act but by various acts committed on different occasions and by different parties";
that such acts "may not be regarded as constituting one single crime"; and that
"[t]hey should be held as separate and distinct crimes." 7 And a third. At the
commencement exercises of an elementary school, "a shot suddenly rang out"
followed by a "series of shots" from a pistol. Two persons lay dead and a third
seriously wounded but who later on also died. This Court there ruled that there
were "three distinct and separate murders" committed by appellant Juan
Mones. 8 And finally, in People vs. Gatbunton, L-2435, May 10, 1950, the spouses
Mariano Sebastian and Maxima Capule who were asleep were killed by
one burst of machinegun fire; and then, by a second burst of machinegun fire,
two of the couple's children also asleep were killed. The accused, Tomas
Gatbunton, was found guilty by the trial court of quadruple murder. On appeal,
this Court declared that "appellant must be declared guilty of four murders." 9
The present case is to be differentiated from People vs. Lawas, L-7618-20, June
30, 1955. There, on a single occasion, about fifty Maranaos were killed by a
group of home guards. It was held that there was only one complex crime. In that
case, however, there was no conspiracy to perpetrate the killing. In the case at
bar, defendants performed several acts. And the informations charge conspiracy
amongst them. Needless to state, the act of one is the act of all.

10

Not material

here, therefore, is the finding in Lawas that "it is impossible to ascertain the
individual death caused by each and everyone" of the accused. It is to be borne
in mind, at this point, that to apply the first half of Article 48, heretofore quoted,
there

must

be

singularity

of

criminal act,singularity

of

criminal impulse is not written into the law. 11

The respondent judge reasons out in his order of May 31, 1966 that consolidation
of the five cases into one would have the salutary effect of obviating the necessity
of trying five cases instead of one. To save time, indeed, is laudable.

Nonetheless, the statute confers upon the trial judge the power to try these cases
jointly, such that the fear entertained by respondent Judge could easily be
remedied. 12
Upon the facts and the law, we hold that the City Fiscal of Iligan City correctly
presented the five separate informations four for murder and one for frustrated
murder.
2. We have not overlooked the suggestion in the record that, because of an
affidavit of one of the witnesses, possibility exists that the real intent of the
culprits was to commit robbery, and that the acts constituting murders and
frustrated murder complained of were committed in pursuance thereof. If true,
this would bring the case within the coverage of the second portion of Article 48,
which treats as a complex crime a case where an offense is a necessary means
for committing the other.
A rule of presumption long familiar, however, is that official duty has been
regularly performed. 13 If the Fiscal has not seen fit to give weight to said affidavit
wherein it is alleged that certain personal properties (transistor radio and money)
were taken away by the culprits after the shooting, we are not to jettison the
prosecutor's opinion thereon. The Fiscal could have had reasons for his act. For
one thing, there is the grave problem of proving the elements of that offense
robbery. For another, the act could have been but a blind to cover up the real
intent to kill. Appropriately to be noted here is that all the informations charged
evident premeditation. With ponderables and imponderables, we are reluctant to
hazard a guess as to the reasons for the Fiscal's action. We are not now to say
that, on this point, the Fiscal has abused his discretion. A prosecuting attorney,
by the nature of his office, is under no compulsion to file a particular criminal
information where he is not convinced that he has evidence to prop up the
averments thereof, or that the evidence at hand points to a different conclusion.
This is not to discount the possibility of the commission of abuses on the part of
the prosecutor. But we must have to recognize that a prosecuting attorney should
not be unduly compelled to work against his conviction. In case of doubt, we
should give him the benefit thereof. A contrary rule may result in our court being

unnecessarily swamped with unmeritorious cases. Worse still, a criminal

suspect's right to due process the sporting idea of fair play may be
transgressed. So it is, that in People vs. Sope, 75 Phil. 810, 815, this Court made
the pronouncement that "[i]t is very logical that the prosecuting attorney, being
the one charged with the prosecution of offenses, should determine the
information to be filed and cannot be controlled by the offended party. 14
3. The impact of respondent Judge's orders is that his judgment is to be
substituted for that of the prosecutor's on the matter of what crime is to be filed in
court. The question of instituting a criminal charge is one addressed to the sound
discretion of the investigating Fiscal. The information he lodges in court must
have to be supported by facts brought about by an inquiry made by him. It stands
to reason then to say that in a clash of views between the judge who did not
investigate and the fiscal who did, or between the fiscal and the offended party or
the defendant, those of the Fiscal's should normally prevail. In this regard, he
cannot ordinarily be subject to dictation. We are not to be understood as saying
that criminal prosecution may not be blocked in exceptional cases. A relief in
equity "may be availed of to stop a purported enforcement of a criminal law where
it is necessary (a) for the orderly administration of justice; (b) to prevent the use
of the strong arm of the law in an oppressive and vindictive manner; (c) to avoid
multiplicity of actions; (d) to afford adequate protection to constitutional rights;
and (e) in proper cases, because the statute relied upon is unconstitutional or
was 'held invalid.'" 15 Nothing in the record would as much as intimate that the
present case fits into any of the situations just recited.
And at this distance and in the absence of any compelling fact or circumstance,
we are loathe to tag the City Fiscal of Iligan City with abuse of discretion in filing
separate cases for murder and frustrated murder, instead of a single case for the
complex crime of robbery with homicide and frustrated homicide under the
provisions of Article 294 (1) of the Revised Penal Code or, for that matter, for
multiple murder and frustrated murder. We state that, here, the Fiscal's discretion
should not be controlled.

Upon the record as it stands, the writ of certiorari prayed for is hereby granted;
the orders of respondent Judge of May 13, 1966 and May 31, 1966 are hereby
set aside and declared null and void, and, in consequence, the writ of preliminary
injunction heretofore issued is made permanent insofar as it stops enforcement of
the said orders; and the respondent Judge, or whoever takes his place, is hereby
directed to reinstate Criminal Cases 1246, 1247, 1248, 1249 and 1250 as they
were commenced, and to take steps towards the final determination thereof.
Costs against respondents Tomas Narbasa, Tambac Alindo and Rufino Borres.
So ordered.
Reyes,

J.B.L.,

Makalintal,

Bengzon,

J.P.,

Zaldivar,

Castro,

Angeles and Fernando, JJ ., concur.

Concepcion, C . J . and Dizon, J ., did not take part.
|||

(People v. Pineda, G.R. No. L-26222, July 21, 1967)

PEOPLE OF

PHILIPPINES, plaintiff-

THE

appellee, vs. RAYMUNDO MADERA @ "Mundo", MARIANITO V.

ANDRES

"Totoy",

GENEROSO

ANDRES

"Ross", defendants-appellants.
Francisco G. Munsayac, Sr. for appellant Madera.
Apolinar F. Tolentino and Jose C. Vitug for appellant Andres, et al.
Solicitor General Estelito P. Mendoza, Assistant Solicitor General Dominador L.
Quiroz and Solicitor Sinfronio I. Ancheta for appellee.

DECISION

FERNANDEZ, J :
p

This case is now before Us on appeal of the three appellants from a decision of
the Circuit Criminal Court 1 finding them guilty of the crime of murder, and
sentencing them to suffer the penalty of reclusion perpetua and to jointly and
severally indemnify the heirs of the victim in the amount of P12,000.00 without
subsidiary imprisonment in case of insolvency, and to pay the cost
proportionately.
There is no question that at about 2:00 o'clock in the early morning of April 20,
1970, three men barged at the doorstep of the house of the victim Elino Bana in
Sitio Baag, Barrio Bantug, Gabaldon, Nueva Ecija. The gunman, standing on the
first rung of the stairs of the house, fired a volley of shots from a .45 caliber gun
at Elino Bana who was then sleeping on the floor of his house near the stairs.
Two gunshot wounds were inflicted on the victim but the fatal one was the one
that hit him on the abdominal region. Elino Bana did not die immediately. He
stood up and told his wife to call for his brother Conrado who lives not far away
from their house. The victim's wife fetched Conrado; but when they returned, the
wounded man was no longer at home for he was already brought to the Municipal
Building of Gabaldon. He was carried by his son-in-law, Francisco Viloria, with
the assistance of some people. From the Municipal Building, he was brought to
the Nueva Ecija General Hospital, but he died on the way that same day, April 20,
1970.
We affirm the lower court's finding that the prosecution has proven beyond
reasonable doubt that appellant Raymundo Madera was the one who fired the
shots at the victim Elino Bana, one of which was the fatal shot, and that
appellants Marianito Andres and Generoso Andres were with Madera at the time.
Juanito Bana, a son of the victim, testified that he was awakened by the gunfire
and saw the appellant Raymundo Madera standing on the first step of their stairs
holding a .45 caliber firearm. He also saw the appellants Marianito Andres and
Generoso Andres just behind the appellant Madera, at a distance of 1 1/2 meters
from the stairs. Bernarda Bana, wife of the victim, declared that she saw
Raymundo Madera as the one who shot her husband with a foot-long firearm,
and appellants Marianito Andres and Generoso Andres were then with Madera.

In addition to the testimonies of these two witnesses, the prosecution presented

the dying declaration of the victim Elino Bana. The trip from the house of Elino
Bana to the Municipal Building took only about thirty minutes. On the way, they
were met by policeman Ambrosio Feliciano from Gabaldon who was fetched from
his house by Barrio Captain Emiliano Jornadal of Bantug to look into the shooting
incident. Upon reaching the Municipal Building Patrolman Feliciano told Elino
Bana that he would have to take down his written statement regarding the
shooting incident, and the latter agreed. The latter was then in agony. It was then
3:00 o'clock in the morning. In said dying declaration, he was asked who shot him
and the answer was: MundoMadera and two others whom he could not
recognize.
The lower court was correct in refusing to give credence to the testimony of
Patrolman Feliciano that while they were on their way to the Municipal Building,
Elino Bana told him that he could not identify the persons who shot him. Said
policeman has been an investigator in the police force since 1964. He should
have asked Elino Bana while he was giving his dying declaration in the Municipal
Building why he said earlier that he did not know who shot him. But Patrolman
Feliciano did not do this. It must be noted that not only Patrolman Feliciano but
also Francisco Viloria, a witness to the dying declaration, testified to its lawful
execution.
The fact that Juanito Bana and Bernarda Bana failed to reveal right away the
identities of the appellants to the victim himself and to their relatives Conrado
Bana and Francisco Viloria, does not militate against their credibility. There is no
evidence on record that they were asked by their relatives about the identity of
the appellants. Had they been asked, they would have readily revealed
appellants' identities as they did to the Chief of Police and Municipal Mayor of
Gabaldon only a few hours after the fateful incident, during a formal investigation
of the case in the Office of the Chief of Police when and where they executed
their respective sworn statements.
In their respective written statements taken on April 20, 1970, subscribed and
sworn on the same date before the Mayor of Gabaldon, Bernardo Bana and

Juanito

Bana

categorically

stated

that

Elino

Bana

was

shot

by

Raymundo Madera @ Mundo, while Ross and Totoy Andres were downstairs.
Juanito Bana was then living with his parents. He must he familiar with their
house. He testified on direct examination that he slept in the balcony of their
house. On cross examination, he said that he slept inside their house. That does
not show any inconsistency in his testimony, because on further questioning, he
said that the balcony referred to by him was inside their house. Yes, he said that
after he heard the shots, he jumped to the ground through the back portion of
their house. The falsity of this statement has not been shown by the defense. The
pictures presented by it which apparently show that there was no such opening,
can be explained by the fact that the tall grasses could obscure the back portion
of the house where the kitchen door was located.
Juanito Bana admitted that he was gripped with fear when he heard the burst of
gunfire. But that would not prove that he failed to recognize the appellants.
"An excited person may overlook the presence of another whom he
would otherwise have observed."
"Under some circumstance, however, excitement may whet the attention
to a keen edge. . . . In some other cases, it has been observed, in effect,
that the emotion incident to the impending peril may not be the kind of
excitement which confuses, but that which focalizes the faculties to
scrutinize the circumstance of the threatened danger in order to avoid
it." 2

The appellants asserted in their briefs 3 that "the evidence on record does not
show that there was a moon shining in the early morning of April 20, 1970, at
Barrio Bantug, Gabaldon, Nueva Ecija;" that it was then "a moonless night;"
hence, Juanito Bana and Bernarda Bana could not have recognized the
appellants. This position is untenable. Why?
The Court can take judicial notice of the "laws of nature" 4 and, under this rule, of
the time when the moon rises or sets on a particular day. 5 This notwithstanding
and for certainty, We took it unto Ourselves to get a certification from the Weather

Bureau 6 which shows that the moon was bright at the time of the shooting
incident. It reads:
"To whom It May Concern:
"This is to certify that, based on the computations made by this office,
the following astronomical data for Gabaldon, Nueva Ecija are true and
correct:
1. that the moon rose at 4:11 P.M. on April 19, 1970 and
set the following day, April 20, at 4:27 A.M.;
2. that at 2:00 A.M. on April 20, 1970, the moon was at an
altitude of 34 degrees above the western horizon with bearing of
South 73 degrees West;
3. and that the moon was illumined 97% at 2:00 A.M. on
April 20, 1970, full moon having occurred at 00.21 A.M. on April
22, 1970.
"This certification is issued upon the request of Mr. Estanislao
Fernandez, Associate Justice, Supreme Court, Manila.
For the Administrator:
(Sgd) Simeon V. Inciong
SIMEON V. INCIONG
Chief, Astronomical Division"

It was not necessary for the prosecution to prove motive on the part of the
appellants for there is no doubt as to their identities.
It is true that, according to Maximo A. Obra, the forensic chemist of the NBI,
appellant Raymundo Madera was found negative in a paraffin test. But Obra
himself admitted that, the paraffin test having been conducted fourteen days after
the incident, the test could have given a negative result even if the appellant had
fired a gun fourteen days earlier, because the nitrate deposits on his hands could
have been washed off by washing or could have been removed by perspiration.

The defense of the appellants was alibi. But said defense cannot prevail over the
positive identification of the appellants by the prosecution witnesses. The house
of appellant Raymundo Madera is just about 400 meters away from that of the
victim Elino Bana.
We need not discuss further the defense of alibi of the appellants Marianito
Andres and Generoso Andres because the Solicitor General recommended their
acquittal. And We agree.
The fact that these two appellants were standing behind appellant Madera when
the latter fired shots at Elino Bana, did not make them liable for whatMadera did,
there being no proof whatsoever of any conspiracy among the three appellants.
They were not armed. They did nothing to help Madera. Their mere passive
presence at the scene of the crime did not make them liable either as coprincipals or accomplices. In one of the latest decisions of this Court, penned by
Justice Felix Q. Antonio. We held:
"It is well to recall the settled rule that conspiracy presupposes the
existence of a preconceived plan or agreement and in order to establish
the existence of such a circumstance, it is not enough that the persons
supposedly engaged or connected with the same he present when the
crime was perpetrated. There must be established a logical relationship
between the commission of the crime and the supposed conspirators,
evidencing a clear and more intimate connection between and among
the latter, such as by their overt acts committed in pursuance of a
common design. Considering the far-reaching consequences, of criminal
conspiracy, the same degree of proof required for establishing the crime
is required to support a finding of its presence that is, it must be shown
to exist as clearly and convincingly as the commission of the offense
itself.

"The evidence fails to meet such requirements. To hold him liable, upon
the other hand, as an accomplice, it must he shown that he had

knowledge of the criminal intention of the principal, which may be

demonstrated by previous or simultaneous acts which contributes to the
commission of the offense as aid thereto whether physical or moral. As
aptly stated in People v. Tamayo: 'It is an essential condition to the
existence of complicity, not only that there should be a relation between
the acts done by the principal and those attributed to the person charged
as accomplice, but it is further necessary that the latter, with knowledge
of the criminal intent, should cooperate with the intention of supplying
material or moral aid in the execution of the crime in an efficacious way.' .
. . From our view of the evidence it has not been convincingly
established that appellant cooperated in the commission of the offense,
either morally, through advice, encouragement or agreement or
materially through external acts indicating a manifest intent of supplying
aid in the perpetration of the crime in an efficacious way. Such
circumstances being absent, his mere passive presence at the scene of
the crime certainly does not make him either a co-principal or an
accomplice in the commission of the offense."

This is good a time as any to emphasize upon those in charge of the prosecution
of criminal cases that the prosecutor's finest hour is not when he wins a case with
the conviction of the accused. His finest hour is still when, overcoming the
advocate's natural obsession for victory, he stands up before the Court and
pleads not for the conviction of the accused but for his acquittal. For indeed, his
noble task is to prosecute only the guilty and to protect the innocent. We,
therefore, commend Solicitor General Estelito P. Mendoza, Assistant Solicitor
Dominador L. Quiroz and Solicitor Sinfronio I. Ancheta for having correctly
recommended the acquittal of the appellants Marianito Andres and Generoso
Andres.
WHEREFORE, the decision appealed from is hereby affirmed with respect to the
appellant Raymundo Madera alias "Mundo", with 1/3 of the cost charged against
him; and it is hereby reversed as regards appellants Marianito Andres alias
"Totoy" and Generoso Andres alias "Ross", who are hereby acquitted of the crime

charged with proportionate costs de oficio. Their immediate release from

confinement is hereby ordered unless they are held for another legal cause.
Zaldivar (Chairman), Fernando, Barredo, Antonio and Aquino, JJ., concur.
|||

(People v. Madera, G.R. No. L-35133, May 31, 1974)

JORGE P. TAN, JR., CESAR TAN, LIBRADO SODE, TEOFANIS

BONJOC,

OSMUNDO

TOLENTINO

and

MARIANO

BARTIDO, petitioners, vs.JUDGE PEDRO GALLARDO , in his

capacity as Presiding Judge of Circuit Criminal Court, 13th
Judicial District, Tacloban City, and PEOPLE OF THE
PHILIPPINES, respondents.
Pelaez, Jalandoni & Adriano for petitioner Jorge P. Tan, Jr.
K. V. Faylona & Associates for petitioner Cesar Tan.
Ruperto Kapunan, Jr. for petitioner Teofanis Bondoc.
Amadeo Seno, Artemio Derecho & Manuel Quiambao for petitioners
Librado Isode, Osmundo, Tolentino and Mariano Bartido.
Solicitor General Estilito P. Mendoza, Assistant Solicitor General Alicia
Simpio-Diy and Solicitor Eduardo L. Kilayko for respondents.
Estanislao A. Fernandez and Dakila F. Castro & Associate as private
prosecutors.

DECISION

ANTONIO, J :
p

In this Special Civil Action for Certorari with Prohibition, petitioners seek the
annulment of respondent Judge's Orders in Criminal Cases Nos. CCC-XIII-50-LS'72 and CCC-XIII-51-L-S'72, 1 to wit: (a) Order of July 21, 1975, denying
petitioners' y motion for respondent Judge to disqualify or to inhibit himself from
hearing and acting upon their Motion for New Trial and/or Reconsideration and
Supplemental Motion for New Trial; (b) Order of July 23, 1975, denying
petitioners' Motion for New Trial and/or Reconsideration and Supplemental
Motion for New Trial; and (c) Order of July 25, 1975, ordering the transfer of the
accused (petitioners herein) from Camp Bumpus, PC headquarters, Tacloban
City, to the National Penitentiary, New Bilibid Prisons, Muntinlupa, Rizal. It is
likewise sought, by way of prohibition, to compel respondent Judge to desist from
further proceeding with the afore-mentioned criminal cases.

prcd

By Resolution of this Court dated August 27, 1975, the respondent Judge was
required to file his answer within ten (10) days from notice, and in connection
therewith, a temporary restraining order was issued to enjoin the respondent from
further proceeding with the afore-mentioned criminal cases. The petition was
subsequently amended to include the People of the Philippines and thereafter, on
January 14, 1976, the Solicitor General, on behalf of the People of the
Philippines, submitted his Comment to the petition. The Solicitor General
informed this Court, thus: that they are "persuaded that there are bases for
stating that the rendition of respondent Judge's decision and his resolution on the
motion for new trial were not free from suspicion of bias and prejudice. . ..
Considering the circumstances of the instant case, the seriousness of the
charges and counter-charges and the nature of the evidence on hand to support
them, we feel that respondent Judge 'appeared to have been heedless of the oftreiterated admonition addressed to trial judges to avoid even the impression of
the guilt or innocence of the accused being dependent on prejudice or
prejudgment'" and, therefore, it was the submission of said official "that the case
should be remanded to the trial court for the rendition of a new decision and with
instruction to receive additional evidence proffered by the accused with the right
of the prosecution to present rebuttal evidence as may be warranted" and,
therefore, they interpose no objection to the remand of the aforementioned

criminal cases "for the rendition of a new decision by another trial judge, after the
parties shall have adduced such additional evidence as they may wish to make,
under such terms and conditions as this Honorable Court may deem fit to
impose." 2
On January 30, 1976, private prosecutors submitted their Comment in
justification of the challenged Orders of the respondent Judge and objected to the
remand of this case. On February 12, 1976, the petitioners moved to strike out
the "Motion to Admit Attacked Comment" and the "Comment" of the private
prosecutor on the ground that the latter has "absolutely no standing in the instant
proceedings before this Honorable Court and, hence, without any personality to
have any paper of his entertained by this Tribunal . . ."
The private prosecutors now contend that they are entitled to appear before this
Court, to take part in the proceedings, and to adopt a position in contravention to
that of the Solicitor General.
The issue before Us is whether or not the private prosecutors have the right to
intervene independently of the Solicitor General and to adopt a stand inconsistent
with that of the latter in the present proceedings.
There are important reasons which support the view that in the present
proceedings, the private prosecutors cannot intervene independently of and take
a position inconsistent with that of the Solicitor General.
To begin with, it will be noted that the participation of the private prosecution in
the instant case was delimited by this Court in its Resolution of October 1, 1975,
thus: "to collaborate with the Solicitor General in the preparation of the Answer
and pleadings that may be required by this Court." To collaborate means to
cooperate with and to assist the Solicitor General. It was never intended that the
private prosecutors could adopt a stand independent of or in contravention of the
position taken by the Solicitor General. There is no question that since a criminal
offense is an outrage to the sovereignty of the State, it is but natural that the
representatives of the State should direct and control the prosecution, As
stressed in Suarez v. Platon, et al., 3 the prosecuting officer "is the representative

not of an ordinary party to a controversy, but of a sovereignty whose obligation to

govern impartially is as compelling as its obligation to govern at all; and whose
interest, therefore, in a criminal prosecution is not that it shall win a case, but that
justice shall be done. As such, he is in a peculiar and very definite sense the
servant of the law, the twofold aim of which is that guilt shall not escape or
innocence suffer. He may prosecute with earnestness and vigor indeed, he
should do so. But, while he may strike hard blows, he is not at liberty to strike foul
ones. It is as much his duty to refrain from improper methods calculated to
produce a wrongful conviction as it is to use every legitimate means to bring
about a just one." Thus, it was stressed in People v. Esquivel, et al., 4 that there is
an absolute necessity for prosecuting attorneys to lay "before the court the
pertinent facts at their disposal with methodical and meticulous attention,
clarifying contradictions and filling up gaps and loopholes in their evidence, to the
end that the court's mind may not be tortured by doubts, that the innocent may
not suffer and the guilty not escape unpunished. Obvious to all, this is the
prosecution's prime duty to the court, to the accused, and to the state." It is for
the purpose of realizing the afore-mentioned objectives that the prosecution of
offenses is placed under the direction, control, and responsibility of the
prosecuting officer.

Cdpr

The role of the private prosecutors, upon the other hand, is to represent the
offended party with respect to the civil action for the recovery of the civil liability
arising from the offense. This civil action is deemed instituted with the criminal
action, unless the offended party either expressly waives the civil action or
reserves to institute it separately. 5 Thus, "an offended party may intervene in the
proceedings, personally or by attorney, specially in case of offenses which can
not be prosecuted except at the instance of the offended party. 6 The only
exception to this is when the offended party waives his right to civil action or
expressly reserves his right to institute it after the termination of the case, in
which case he lost his right to intervene upon the theory that he is deemed to
have lost his interest in its prosecution. 7 And in any event, whether an offended
party intervenes in the prosecution of a criminal action, his intervention must
always be subject to the direction and control of the prosecuting official.' 8 As

explained in Herrero v. Diaz, supra, the "intervention of the offended party or his
attorney is authorized by section 15 of Rule 106 of the Rules of Court, subject to
the provisions of section 4 of the same Rule that all criminal actions either
commenced by complaint or by information shall be prosecuted under the
direction and control of the Fiscal." (Emphasis supplied.)
Therefore, although the private prosecutors may be permitted to intervene, they
are not in control of the case, and their interests are subordinate to those of the
People of the Philippines represented by the fiscal. 9 The right which the
procedural law reserves to the injured party is that of intervening in the
prosecution for the sole purpose of enforcing the civil liability for the criminal
action and not of demanding punishment of the accused.

10

As explained

in People v. Orais: 11
"'. . . the position occupied by the offended party is subordinate to that of
the promotor fiscal because, as the promotor fiscal alone is authorized to
represent the public prosecution, or the People of the Philippine Islands,
in the prosecution of offenders, and to control the proceeding, and as it is
discretionary with him to institute and prosecute a criminal proceeding,
being at liberty to commence it or not or to refrain from prosecuting it or
not, depending upon whether or not there is, in his opinion, sufficient
evidence to establish the guilt of the accused beyond a reasonable
doubt, except when the case is pending in the Court of First Instance,
the continuation of the offended party's intervention depends upon the
continuation of the proceeding. Consequently, if the promotor fiscal
desists from pressing the charge or asks the competent Court of First
Instance in which the case is pending for the dismissal thereof, and said
court grants the petition, the intervention of the person injured by the
commission of the offense ceases by virtue of the principle that the
accessory follows the principal. Consequently, as the offended party is
not entitled to represent the People of the Philippine Islands in the
prosecution of a public offense, or to control the proceeding once it is
commenced, and as his right to intervene therein is subject to the

promotor fiscal's right of control, it cannot be stated that an order of

dismissal decreed upon petition of the promotor fiscal himself deprives
the offended party of his right to appeal from an order overruling a
complaint or information, which right belongs exclusively to the promotor
fiscal by virtue of the provisions of section 44 of General Orders, No. 58.
To permit a person injured by the commission of an offense to appeal
from an order dismissing a criminal case issued by a Court of First
Instance upon petition of the promotor fiscal, would be tantamount to
giving said offended party of the direction and control of a criminal
proceeding in violation of the provisions of the above-cited section 107 of
General Orders, No. 58.'"

Consequently, where from the nature of the offense, or where the law defining
and punishing the offense charged does not provide for an indemnity, the
offended party may not intervene in the prosecution of the offense. 12
There is no question that the Solicitor General represents the People of the
Philippines or the State in criminal proceedings pending either in the Court of
Appeals or in this Court. Thus, Section 1 of Presidential Decree No. 478,
"Defining the Powers and Functions of the Office of the Solicitor General",
provides:
"SECTION 1. Function and Organization. (1) the Office of the Solicitor
General shall represent the Government of the Philippines, its agencies
and instrumentalities and its officials and agents in any litigation,
proceeding, investigation or matter requiring the services of a lawyer. . . .
The office of the Solicitor General shall constitute the law office of the
Government, and as such, shall discharge duties requiring the services
of a lawyer. It shall have the following specific powers and functions:
(a) Represent the Government in the Supreme Court and the Court of
Appeals In all criminal proceedings; represent the Government and its
officers in the Supreme Court, the Court of Appeals, and all other courts

or tribunals in all civil actions and special proceedings in which the

Government or any officer thereof in his official capacity is the party.
xxx xxx xxx
(k) Act and represent the Republic and/or the people before any court,
tribunal, body or commission in any matter, action or proceeding which,
in his opinion, affects the welfare of the people as the ends of justice
may require.
xxx xxx xxx

It is evident, therefore, that since the Solicitor General alone is authorized to

represent the State or the People of the Philippines the interest of the private
prosecutors is subordinate to that of the State and they cannot he allowed to take
a stand inconsistent with that of the Solicitor General, for that would be
tantamount to giving the latter the direction and control of the criminal
proceedings, contrary to the provisions of law and the settled rules on the
matter.

LLphil

Moreover, the position taken by the Solicitor General in recommending the

remand of the case to the trial court is not without any plausible justification.
Thus, in support of his contention that the rendition of the decision and the
resolution on the subsequent motions by the respondent Judge were not free
from suspicion of bias and prejudice, the Solicitor General stated:
"In alleging bias and manifest partiality on the part of respondent judge,
petitioners assert that:
(a) Respondent judge kept improper contact with and was illegally
influenced by the Larrazabals in connection with the decision of the two
cases against petitioners herein;
(b) In the latter part of 1973, with the trial of the Tan cases still in
progress, respondent judge received, through one of his court
stenographers, two bottles of whisky from Mayor Iaki Larrazabal,

brother and uncle of the deceased victims Feliciano and Francisco

Larrazabal;
(c) On one occasion, Mayor Larrazabal had a short talk with respondent
judge, after which the latter received from one of the private prosecutors
a bottle of wine wrapped in a newspaper which was 'thick' and 'bulky'
and which allegedly contained 'something else inside';
(d) Respondent judge prepared the decision in the Tan cases based on
the memorandum of the prosecution which was literally copied in said
decision although with some corrections; and
(e) After an alleged meeting with Mayor Iaki Larrazabal, respondent
judge amended his already prepared decision in the two criminal cases
involved herein by changing the penalty of double-life sentence for the
double murder charge against the petitioners to the death penalty.
"The foregoing alleged irregularities are mainly supported by an affidavit
executed on June 26, 1975 by Gerardo A. Makinano, Jr., court
stenographer of the Circuit Criminal Court, Tacloban City (Annex 'E',
Petition). The truth of the charges made in such affidavit are denied by
respondent judge (in his answer to the instant petition dated October 11,
1975), who in turn claims that it was petitioners who tried to bribe him
into acquitting them in the aforesaid criminal cases, after they were
illegally furnished a copy of the draft of his decision of conviction by the
same court stenographer Gerardo A. Makinano, Jr. (please see Answer
of respondent judge, pp. 12-13). Unlike in the cases of Mateo vs.
Villaluz, 50 SCRA 191 (1973), and Castillo vs. Juan, 62 SCRA 124
(1974) relied upon mainly by herein petitioners, the facts alleged as
constituting the grounds for disqualifying the respondent judge in the
instant petition are disputed.
"Apart from the sworn statements submitted before this Court in support
or in denial of the alleged bribery of respondent judge, we have been
informed of evidence obtained by the National Bureau of Investigation

when it cannot appropriate for us at this time, however, and we are

unable to do so, to submit to this Court definite conclusions on the
charges and counter-charges. An exhaustive inquiry and open hearing
should perhaps precede the making of categorical conclusions. But we
are persuaded that there are bases for stating that the rendition of
respondent Judge's decision and his resolutions on the motions for new
trial were not free from suspicion of bias and prejudice (See Martinez vs.
Gironella, 65 SCRA 245 [July 22, 1975]).
"Considering the circumstances of the instant case, the seriousness of
the charges and counter-charges and the nature of the evidence on hand
to support them, we feel that respondent Judge 'appeared to have been
heedless to the oft-reiterated admonition addressed to trial judges to
avoid even the impression of the guilt or innocence of the accused being
dependent on prejudice or prejudgment (Fernando, J., Concurring
opinion, Martinez vs. Gironella, supra, at 252 . . ."

It is undisputed that the sole purpose of courts of justice is to enforce the laws
uniformly and impartially without regard to persons or their circumstances or
the opinions of men. A judge, according to Justice Castro, now Chief Justice
of this Court, should strive to be at all times "wholly free, disinterested,
impartial and independent. Elementary due process requires a hearing before
an impartial and disinterested tribunal. A judge has both the duty of rendering
a just decision and the duty of doing it in a manner completely free from
suspicion as to its fairness and as to his integrity." 13Thus, it has always been
stressed that judges should not only be impartial but should also appear
impartial. For "impartiality is not a technical conception. It is a state of
mind" 14 and, consequently, the "appearance of impartiality is an essential
manifestation of its reality." 15 It must be obvious, therefore, that while judges
should possess proficiency in law in order that they can competently construe
and enforce the law, it is more important that they should act and behave in
such a manner that the parties before them should have confidence in their
impartiality.

cdrep

It appears, however, that respondent Judge is no longer in the judicial service,

hence, the question as to whether or not he should be disqualified from further
proceeding with the aforementioned criminal cases has already become moot.
WHEREFORE, this Court grants the petition and hereby remands the case to the
trial court in order that another Judge may hear anew petitioners' motion for new
trial and to resolve the issue accordingly on the basis of the evidence. No special
pronouncement as to costs.
Fernando, (Chairman), Barredo, Aquino and Concepcion, Jr. JJ., concur.
|||

(Tan, Jr. v. Gallardo, G.R. No. L-41213-14, October 05, 1976)

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LICERIO

P. SENDAYDIEGO, JUAN SAMSON and ANASTACIO QUIRIMIT,
defendants. JUAN SAMSON, defendant-appellant. PROVINCE OF
PANGASINAN, Offended Party-Appellee, vs. HEIRS OF LICERIO
P. SENDAYDIEGO,defendants-appellants.
Norberto J. Quisumbing for appellant Sendaydiego.
Donato J. Rillera for appellant Samson.
Office of the Solicitor General for appellee.
SYNOPSIS
Licerio P. Sendaydiego, provincial treasurer of Pangasinan, in conspiracy with
Juan Samson, as an employee of a lumber store, and with Anastacio Quirimit,
the provincial auditor as an accompliance, used six forged provincial vouchers to
embezzle from the road and bridge fund the total sum of P57,048.23. They were
charged with malversation through falsification. After trial the lower court

acquitted the auditor and found Sendaydiego and Samson guilty as principals of
malversation through falsification of public documents.
Pending appeal, Sendaydiego died. By resolution of the Supreme Court, his
appeal as to this Criminal liability was dismissed, but the court resolved to
continue exercising appellate jurisdiction over his possible civil liability for the
monetary claims of the province of Pangasinan arising from the alleged criminal
acts complained of, as if no criminal case had been instituted against him, thus
making applicable, in determining his civil liability, Article 30 of the Civil Code.
The title of the case was thus amended to show its civil aspect.
The Supreme Court held that the crime committed are not complex, but separate
crimes of falsification and malversation; because in the six vouchers the
falsification was used to conceal the malversation. Each falsification and each
malversation constituted independent offenses which must be punished
separately. Since Samson, a private person, conspired with an accountable
public officer in committing malversation, he is also guilty of malversation.
Samson and the estate of the late Sandaydiego were held solidarily liable to
indemnify the province of Pangasinan.
SYLLABUS
1. CRIMINAL LAW; DEATH; APPELLANT'S DEATH PENDING APPEAL
EXTINGUISHES HIS CRIMINAL LIABILITY. The death of appellant during the
pendency of his appeal or before the judgment of conviction rendered against
him by the lower court became final and executory extinguished hiscriminal
liability, meaning his obligation to serve the personal or imprisonment penalties
and his liability to pay the fines or pecuniary penalties.
2. ID.; ID.; CIVIL LIABILITY SURVIVES DEATH OF APPELLANT. Where the
death of the accused occurred after final judgment was rendered by the Court of
First Instance, which convicted him of the crime charged and ordered him to

indemnify the offended party, the claim of the offended party forcivil
liability survives.
3. ID.; CIVIL ACTION DEEMED INSTITUTED WITH CRIMINAL ACTION
ABSENT EXPRESS WAIVER OR RESERVATION. The civil action for the civil
liability is deemed impliedly instituted with the criminal action in the absence of
express waiver or its reservation in a separate action. The civil action for the civil
liability is separate and distinct from the criminal action.
4. ID.;

APPEAL;

APPELLATE

COURT

MAY

CONTINUE

EXERCISING

APPELLATE JURISDICTION OVER ACCUSED'S POSSIBLE CIVIL LIABILITY,

NOTWITHSTANDING DISMISSAL OF APPEAL ON ACCOUNT OF DEATH.
Notwithstanding the dismissal of the appeal of deceased appellant insofar as his
criminal liability is concerned, the appellate court may continue to exercise
appellate jurisdiction over his possible civil liability for the money claims of
complainant arising from the alleged criminal acts complained of, as if no criminal
case had been instituted against him, thus making applicable, in determining his
civil liability, Article 30 of the Civil Code. For that purpose the heirs of
administrator or administrator deceased's estate will be substituted for the
deceased insofar as the civil action for the civil liability is concerned (Secs. 16
and 17, Rule 3, Rules of court); and the title of the criminal case should be
amended to show its civil aspect.
5. CRIMINAL PROCEDURE; PRIVATE PROSECUTOR; CRIMINAL ACTION
MUST BE PROSECUTED UNDER THE DIRECTION AND CONTROL OF THE
FISCAL. Where the record shows that at every hearing the provincial fiscal,
the city fiscal or an assistant fiscal were present together with the private
prosecutor, there was substantial compliance with the rule that the criminal action
should be "prosecuted under the direction and control of the fiscal" and that "the
provincial fiscal shall represent the province" in any court. (Sec. 4, Rule 110,
Rules of Court; sec. 1683, Revised Administrative Code.)
6. ID.;

JUDGES;

DISQUALIFICATION;

JUDGE

WHO

CONDUCTED

PRELIMINARY INVESTIGATION NOT DISQUALIFIED TO TRY CASE ON THE

MERITS. Section 13, Rule 112 of the Rules of Court, in allowing a Court of
First Instance to conduct a preliminary investigation, does not disqualify it from
trying the case it had found probable cause and after the fiscal, as directed by the
Court, had filed the corresponding information. The rule assumes that the Judge,
who conducted the preliminary investigation, could impartially try the case on the
merits.
7. ID.; ID.; ID.; ID. The case of a Judge of the Court of First Instance, who
conducts a preliminary investigation and then tries the case on the merits, is
similar to a situation where an inferior court conducts a preliminary investigation
of a grave or less grave offense falling within the concurrent jurisdiction of the
Court of First Instance and the inferior court. In such a case, the inferior court
after terminating the preliminary investigation is not obligated ( por delicadeza) to
remand the case to the Court of First Instance for trial. The inferior court has the
option to try the case on the merits. The assumption is that the inferior court can
try the case without any ingrained bias or undue prejudice.
8. EVIDENCE; SIGNATURES MAY BE DELIBERATELY DISGUISED.
Signatures may be deliberately disguised with the dishonest intention of denying
the same as and when necessary.
9. ID.; PERSON IN POSSESSION OF FALSIFIED DOCUMENT IS PRESUMED
TO BE THE AUTHOR OF THE FALSIFICATION. The rule is that if a person
had in his possession a falsified document and he made use of it (uttered it),
taking advantage of it and profiting thereby, the presumption is that he is the
material author of the falsification. This is especially true if the use of uttering of
the forged documents was so closely connected in time with the forgery that the
user of possessor may be proven to have the capacity of committing the forgery,
or to have close connection with the gorgers, and therefore, had complicity in the
forgery.
10. ID.; FALSIFICATION; USE OF DIFFERENT FORMS OF SIGNATURES.
The deviousness of falsification perpetrated by the accused is shown by the fact

that he uses one form of signature for his crooked transactions with the provincial
government and another form of signature for his valid transactions or papers.
11. ID.; ID.; SEPARATE MALVERSATIONS AND FALSIFICATIONS. If the
falsification is resorted to for the purpose of hiding the malversation, the
falsification and malversation are separate offenses. Thus, where the provincial
treasurer, as the custodian of the money forming part of the road and bridge fund,
effected payments to his co-accused for construction materials supposedly
delivered to the province for various projects when in fact no such materials were
delivered, and to camouflage or conceal the defraudation, the accused used six
vouchers which had genuine features and which appear to be extrinsically
authentic but which were intrinsically fake, the crimes committed are not complex
but separate crimes of falsification and malversation. The falsifications cannot be
regarded as constituting one continuing offense impelled by a single criminal
impulse. Each falsification of a voucher constitutes one crime. The falsification of
six couchers constitutes

six separate or distinct offenses; and each

misappropriation as evidenced by a provincial voucher constitutes a separate

offense.
12. ID.;

MALVERSATION;

CRIMINAL

LIABILITY;

PRIVATE

PERSON

CONSPIRING WITH PUBLIC OFFICER. A private person conspiring with an

accountable officer in committing malversation is also guilty of malversation. A
different rule prevails with respect to a stranger taking part in the commission of
parricide or qualified theft. In such cases, the stranger is not guilty of parricide or
qualified theft but only of murder or homicide, as the case may be, and simple
theft.
13. PENALTY; SERVICE OF MULTIPLE PENALTIES. In the service of twelve
penalties meted to defendant, the threefold limit provided for in article 70 of the
Revised Penal Code should be observed, meaning that the maximum penalty
that he should serve is three times the indeterminate sentence of twelve (12)
years to seventeen (17) years, the severest penalty imposed on him, or thirty-six
(36) years to fifty-one (51) years. The maximum duration of his sentence should
not exceed forty (40) years.

BARREDO, J., concurring:

1. APPEAL; DISMISSAL OF APPEAL DUE TO DEATH OF ACCUSED FROM A
JUDGMENT OF CONVICTION, AMOUNTS TO ACQUITTAL. The dismissal of
an appeal, due to death of appellant, from a judgment of conviction by a trial
court does not result in the affirmance of such conviction, but amounts to an
acquittal of the appellant based on the constitutionally mandated presumption of
innocence in his favor that can be overcome only by a finding of guilt, something
that his death prevents the court from making. Death extinguishes the crime, and
corollarily, all its consequence.
2. ID.; ID.; ESTATE OF ACCUSED NOT EXONERATED FROM CIVIL LIABILITY.
The dismissal of an appeal in criminal cases, by reason of appellant's death,
amounts to his acquittal and carries with it exemption from or extinction of the
civil liability as if the court had held that the action from which the civil action
might arise did not exist (Sec. 2(4), Rule 111). But this does not exonerate the
estate from another kind of civil liability for indemnity, restitution, or reparation, for
under the pertinent provisions of Human Relations of the Civil Code. Particularly
Article 30, the total absolution of appellant based on his death is immaterial,
since this provision contemplates prosecution of civil liability arising from a
criminal offense without the need of any criminal proceeding to prove the
commission of the crime as such, that is, without having to prove the criminal
liability of defendant so long as his act causing damage or prejudice to the
offended party is proven by preponderance of evidence.

3. ACTIONS; EFFECT OF DEATH OF ACCUSED BEFORE CONVUCTION ON

THE CIVIL ACTION FOR DAMAGES. While Article 29 of the Civil Code
unequivocally authorizes the filing of "a civil action for damages for the same act
or omission," It does not say that the civil action joined with the criminal action, as
provided for in Section 1 of Rule 111, shall survice and be the one continued.
What is left to the offended party after the death of the accused before conviction
is the right to institute a civil action for damages for the same act or omission

pursuant to Article 29 and 30 of the Civil Code and Sections 2 and 3(c) of Rule
111 of the Rules of Court.
4. APPEALS; DISMISSAL OF APPEAL IN CRIMINAL CASES BY REASON OF
APPELLANT'S DEATH. When appeal in criminal cases have to be dismissed
by reason of the death of the appellant, it is not proper to qualify such dismissal
as limited to that of the criminal liability of the appellant. The dismissal should be
unqualified and that the offended parties concerned should be left to pursue their
remedies, if they so desire, in the appropriate civil action contemplated both in
the Civil Code and in Rule 111.
5. OBLIGATION; SIMULTANEOUS LIABILITY OF ACTOR FOR THE SAME ACT.
A party aggrieved by an act criminal in nature has the right to indemnity,
restitution or reparation, notwithstanding the absence or failure of the usual
criminal prosecution, in view of the provisions of the pertinent articles of the Civil
Code on Human Relations and Section 2 of Rule 111. The same act or set of
facts can be the subject of obligations arising at the same time thru different
modes contemplated in Article 1157 of the Civil Code. Thus, that an act of
omission is punished by law, thereby making the actor civilly liable therefor, does
not exclude simultaneous liability of the actor for the same act viewed also as one
giving rise to an obligation under another law, and/or under a contract, quasicontract or quasi-delict, with the qualification that the aggrieved party cannot
recover damages more than once for the same act or omission (Art. 2177, Civil
Code).

DECISION

AQUINO, J :
p

In these three cases of malversation through falsification, the prosecution's

theory is that in 1969 Licerio P. Sendaydiego, the provincial treasurer of
Pangasinan, in conspiracy with Juan Samson y Galvan, an employee of a lumber

and hardware store in Dagupan City, and with Anastacio Quirimit, the provincial
auditor, as an accomplice, used six (6) forged provincial vouchers in order to
embezzle from the road and bridge fund the total sum of P57,048.23.
The provincial voucher involved in these cases has several part. In the upper part
with the legend "ARTICLE OR SERVICE" the nature of the obligation incurred is
indicated. That part is supposed to be signed by two officials of the provincial
engineer's office and by the governor's representative.
The middle part of the voucher contains five numbered printed paragraphs.
Paragraph 1 is a certificate to be signed by the creditor. It is stated therein that
the creditor vouches that the expenses "were actually and necessarily incurred".
In the instant cases paragraph 1 was not signed presumably because it is not
relevant to the purchase of materials for public works projects.
Paragraph 2 is a certification that the expenses are correct and have been
lawfully incurred. It is signed by the provincial engineer.
Paragraph 3 contains these words: "Approved for pre-audit and payment,
appropriations and funds being available therefor." This is signed by the
provincial treasurer.
Paragraph 4 is a certification which, as filled up in Exhibit K, Voucher No. 10724
dated February 28, 1969, reads:

LibLex

"I certify that this voucher has been pre-audited and same may be paid
in the amount of sixteen thousand seven hundred twenty-seven and
52/100 (P16,727.52) in cash or in check, provided there is sufficient fund
to cover the payment."

This is signed by the auditor.

Paragraph 5 is a certification signed by the provincial treasurer that the account
mentioned in the provincial engineer's certification "was paid in the amount and
on the date shown below and is chargeable as shown in the summary
hereof. . . ." It may be noted that the provincial treasurer signs two parts of the
voucher.

Following paragraph 5, and as referred to therein, is the receipt of payment

signed by the creditor. As accomplished in Exhibit K, the receipt reads (it was
signed according to the prosecution by Juan Samson, a point which is disputed
by him):
"Received this 31st day of March, 1969, from L. P. Sendaydiego,
Treasurer, Province of Pangasinan, the sum of sixteen thousand seven
hundred twenty-seven pesos & 52/100 (16,727.52) in full payment of the
above stated account, which I hereby certify to be correct. Paid by Check
No. ...........
CARRIED CONSTR. SUPPLY CO.
By:
(Sgd.) JUAN SAMSON"

According to the prosecution, Samson also signed on the left margin of the six
vouchers below the stamped words: "Presented to Prov. Treasurer. ByJuan
Samson."
Voucher No. 10724 (Exh. K). This provincial voucher, dated February 28,
1969, evidences the payment of P16,727.52 to the Carried Construction Supply
Co. of Dagupan City for lumber and hardware materials supposedly used in the
repair of the bridge in Barrio Libertad at the Umingan-Tayug road in Pangasinan
along the Nueva Ecija boundary (Exh. K). The voucher makes reference to
invoice No. 3327 and other supporting papers.
The falsity of the provincial voucher is proven by the following circumstances:
(a) That there was no project for the repair of the bridge at Barrio Libertad (p. 1;
Exh. Z).
(b) That the amount of P16,727.52 was never received by the Carried
Construction Supply Co. The alleged official receipts No. 3025 of the company
dated March, 1969 (Exh. K-6) is forged.
(c) That the lumber and materials mentioned in Exhibit K were never delivered by
the company to the provincial government.

(d) That in the provincial voucher, Exhibit K, and in the supporting requisition and
issue voucher (RIV) No. 2206 dated January 29, 1969 (Exh. A), covering the
same lumber and hardware materials, the signatures of the following officials
were forged: Salvador F. Oropilla, senior civil engineer; Rodolfo P. Mencias,
supervising civil engineer; Victoriano M. Servilleja, acting provincial engineer, and
Ricardo B. Primicias,, chief of equipment of the governor's office. These four
officials denied that their signatures in the two vouchers, Exhibits A and B, are
their genuine signatures.
(e) That the imprint of the rubber stamp on Exhibits A and B, containing the
words "Approved: For and By Authority of the Governor (signed) Ricardo B.
Primicias, Chief of Equipment", is not the imprint of the genuine rubber stamp
used in Primicias' office.
(f) That charge invoice No. 3327 of the Carried Construction Supply Co. dated
February 18, 1969, containing a description and the prices of the lumber and
hardware materials (Exh. B), is fake because, according to Ambrosio Jabanes,
the company's assistant manager, the company's invoice No. 3327 was issued to
the Mountain Agricultural College (Exh. II-1). Oropilla denied that his alleged
signature on Exhibit B is his signature.
(g) That three other documents, supporting the provincial voucher (Exh. K), were
also forged. Those documents are the taxpayer's certificate dated February 10,
1969 (Exh. C) stating that no tax is due on the goods sold in the fake invoice No.
3327 and the two certificates as to the samples of lumber allegedly purchased
from the Carried Construction Supply Co., (Exh. D and E). Narciso P. Martinez, a
district forester, denied that his signatures in Exhibits D and E are his genuine
signatures.
(h) That Angelo C. Manuel, the checker of the provincial auditor's office, denied
that his signature on the left margin is his signature (Exh. A-10).
The forged character of provincial voucher No. 10724 (Exh. K) is incontrovertible.
Other five forged vouchers. Five other provincial vouchers evidencing
supposed payments of certain amounts to the Carried Construction Supply Co.

for lumber and hardware materials supposedly used in the repair of other bridges
were also falsified. These five vouchers are the following:
(1) Voucher No. 11995 dated April 29, 1969 evidencing the payment of
P14,571.81 for lumber and hardware materials allegedly used in the
repair of Bayaoas bridge at the Urbiztondo-Pasibi Road (Exh. O).
(2) Voucher No. 11869 dated April 15, 1969 evidencing the payment of
P5,187.28 for lumber and hardware materials allegedly used in the repair
of the Panganiban bridge at the Umingan-Tayug Road (Exh. P).
(3) Voucher No. 11870 dated April 28, 1969 evidencing the payment of
P6,290.60 for lumber and hardware materials allegedly used in the repair
of the Cabatuan bridge at the Umingan-Guimba Road (Exh. Q).
(4) Voucher No. 11871 dated April 15, 1969 evidencing the payment of
P9,769.64 for lumber and hardware materials allegedly used in the repair
of the Casabar bridge at the Binalonan-San Manuel Road (Exh. R).
(5) Voucher No. 11872 dated April 15, 1969 evidencing the payment of
P4,501.38 for lumber and hardware materials allegedly used in the repair
of the Baracbac bridge at the Umingan-Guimba Road (Exh. S).

As in the case of voucher No. 10724 (Exh. K), Oropilla, Mencias, and Primicias
declared that their signatures in the said five vouchers are not their genuine
signatures. Samson, who hand-carried the said vouchers for processing, did not
turn over to the provincial auditor's office the papers supporting the said vouchers
after the vouchers had been pre-audited. Hence, those supporting papers could
not be presented in evidence.
Jabanes, the aforementioned assistant manager of the Carried Construction
Supply Co., testified that the lumber and hardware materials mentioned in the five
vouchers were never delivered by his company to the provincial government. The
charge invoices mentioned in the said vouchers were cancelled invoices issued
to the Mountain Agricultural College. The projected repairs of the bridges were
fictitious.

llcd

The company's cashier testified that the company never received the payments
for the lumber and hardware materials. The receipts evidencing payments (Exh.
K-6, KK to KK-4) are fake official receipts. The cashier produced in court the
genuine official receipts (Exh. LL to LL-7) bearing the serial numbers of the fake
receipts. The genuine receipts do not refer to transactions with the provincial
government.
Samson played a stellar role in the processing of the six vouchers. He used to be
an employee of the provincial treasurer's office. He resigned and worked with
several firms doing business with the provincial government. In 1969 he was the
collector of the Carried Construction Supply Co. He represented that firm in its
dealings with the offices of the governor, provincial auditor, provincial engineer
and provincial treasurer. He was personally known to those provincial officials
and the employees of their offices (21-22 Sendaydiego's brief).
The six (6) forged provincial vouchers, with their respective supporting papers,
were hand-carried by Samson. He delivered the papers to Carmencita Castillo,
the ledger clerk in the provincial engineer's office, for recording and for her
signature (Exh. DD).
Thereafter, Samson brought the papers to the provincial treasurer's office.
Marcelo Crusada, a laborer in that office who performed the chore of recording
the vouchers and payrolls, recorded Vouchers Nos. 11869, 11871 and 11872
(Exh. P, R, and S). Crusada's initials appear on the upper lefthand corner of the
said vouchers with the date "4/17/69"
Samson signed on the left margin of the vouchers to indicate that he presented
them to the provincial treasurer's office. Crusada said that after Samson had
presented the said papers to him, Samson brought them to Ricardo Baraan, the
bookkeeper of the provincial treasurer's office, for processing and for the latter's
signature (Exh. WW).
From Baraan's office, Samson hand-carried the vouchers to the provincial
auditor's office. He asked Virginia Cruz, a clerk, to record the same (Exh. CC).

Afterwards, Samson asked Donato Rosete, the assistant provincial treasurer, to

initial the vouchers. After Rosete had initialled the vouchers, Samson went to the
provincial treasurer's office where the amounts covered by the vouchers were
paid by Sendaydiego to him in cash (instead of by check) as representative of the
Carried Construction Supply Co. (Exh. EE). He received the payments on March
31 and April 29 and 28 (four payments on that date) as shown on the face of the
vouchers.
The signatures of Sendaydiego and Quirimit, the auditor, on the said six vouchers
are admittedly authentic. Sendaydiego signed the vouchers ahead of Rosete, his
assistant. Sendaydiego's defense is that he signed the vouchers in the honest
belief that the signatures therein of the provincial officials concerned were
genuine because the vouchers had been pre-audited and approved by the
auditor.
Samson denied the authenticity of his two signatures on each of the six vouchers
showing that he received from Sendaydiego the amounts covered thereby as
representative of the lumber and hardware firm (Exh. OO to TT) and that he
presented the vouchers to the provincial treasurer's office (Exh. 6-12
Samson). Sendaydiego testified that Samson's signatures are genuine.
In connection with the six vouchers, Sendaydiego, Samson and Quirimit were
charged with malversation through falsification in three cases docketed as
follows:
1. Criminal Case No. 23349 involving provincial voucher No. 10724
dated February 28, 1969 in the sum of P16,727.52 (Exh. K), L-33252.
2. Criminal Case No. 23350 involving provincial vouchers Nos. 11869,
11870, 11871 dated April 15 (two dates) 28 and 15, 1969 for the
respective amounts of P5,187.28, P6,290.60, P9,769.64 and P4,501,38
(four vouchers, Exh. P, Q, R and S), now L-33253.
3. Criminal Case No. 23351 involving provincial voucher No. 11955
dated April 29, 1969 in the sum of P14,571.81 (Exh. O), now L-33254.

After

trial,

the

lower

court

acquitted

the

auditor,

Quirimit

and

found Sendaydiego and Samson guilty of malversation through falsification of

public or official documents, imposing each of the following penalties:
(1) In Criminal Case No. 23349, an indeterminate sentence of twelve
years, ten months and twenty-one-days, as minimum, to eighteen years,
two months and twenty-one days of reclusion temporal, as maximum,
and a fine of P16,727.52 and to indemnify solidarily the provincial
Government of Pangasinan in the same amount;
(2) In Criminal Case No. 23350, the penalty of reclusion perpetua, and a
fine of P29,748.90 and to indemnify solidarily the provincial government
of Pangasinan in the same amount; and
(3) In Criminal Case No. 23351, an indeterminate sentence of twelve
years, ten months and twenty-one days, as minimum, to eighteen years,
two months and twenty one days of reclusion temporal, as maximum,
and a fine of P14,571.81 and to indemnify solidarily the provincial
government of Pangasinan in the same amount.

Sendaydiego and Samson appealed to this Court.

Sendaydiego died on October 5, 1976. His appeal as to his criminal liability was
dismissed. Death extinguished his criminal liability but his civil liability remained.
The resolution of July 8, 1977 dismissing Sendaydiego's appeal reads as
follows:

prcd

"The death of appellant Sendaydiego during the pendency of his appeal

or before the judgment of conviction rendered against him by the lower
court became final and executory extinguished his criminal liability,
meaning his obligation to serve the personal or imprisonment penalties
and his liability to pay the fines or pecuniary penalties (Art. 89[1],
Revised Penal Code; 1 Viada, Codigo Penal, 4th Ed., 565).
"The claim of complainant Province of Pangasinan for the civil
liability survived Sendaydiego because his death occurred after final

judgment was rendered by the Court of First Instance of Pangasinan,

which convicted him of three complex crimes of malversation through
falsification and ordered him to indemnify the Province in the total sum of
P61,048.23 (should be P57,048.23).
"The civil action for the civil liability is deemed impliedly instituted with
the criminal action in the absence of express waiver or its reservation in
a separate action (Sec. 1, Rule 111 of the Rules of Court). The civil
action for the civil liability is separate and distinct from the criminal action
(People and Manuel vs. Coloma, 105 Phil. 1287; Roa vs. De la Cruz,
107 Phil. 8).
"'When the action is for the recovery of money' 'and the defendant dies
before final judgment in the Court of First Instance, it shall be dismissed
to be prosecuted in the manner especially provided' in Rule 87 of the
Rules of Court (Sec. 21, Rule 3 of the Rules of Court).
"The implication is that, if the defendant dies after a money judgment
had been rendered against him by the Court of First Instance, the action
survives him. It may be continued on appeal (Torrijos vs. Court of
Appeals, L-40336, October 24, 1975; 67 SCRA 394).
"The accountable public officer may still be civilly liable for the funds
improperly disbursed although he has no criminal liability (U. S. vs.
Elvina, 24 Phil. 230; Philippine National Bank vs. Tugab, 66 Phil. 583).
"In view of the foregoing, notwithstanding the dismissal of the appeal of
the deceased Sendaydiego insofar as his criminal liability is concerned,
the Court Resolved to continue exercising appellate jurisdiction over his
possible civil liability for the money claims of the Province of Pangasinan
arising from the alleged criminal acts complained of, as if no criminal
case had been instituted against him, thus making applicable, in
determining his civil liability, Article 30 of the Civil Code (Note: The lower
court had issued an order of attachment against him on January 13,
1970 for the sum of P36,487 and in the brief for said appellant, there is

no specific assignment of error affecting the civil liability fixed by the trial
court.) and, for that purpose, his counsel is directed to inform this Court
within ten (10) days of the names and addresses of the decedent's heirs
or whether or not his estate is under administration and has a duly
appointed judicial administrator. Said heirs or administrator will be
substituted for the deceased insofar as the civil action for the civil liability
is concerned (Secs. 16 and 17, Rule 3, Rules of Court). According
to Sendaydiego's brief, he had a wife and ten children named Arturo,
Licerio, Jr., Prospero, Regulo, Eduardo, Cesar, Nola, Aida, Wilfredo and
Manolo (deceased).
"The title of this case should be amended to show its civil aspect by
adding thereto the following: 'Province of Pangasinan vs. Heirs of Licerio
P.Sendaydiego.'"

Sendaydiego's appeal will be resolved only for the purpose of showing his
criminal liability which is the basis of the civil liability for which his estate would be
liable.
Sendaydiego's appeal; civil liability of his estate. In view of Sendaydiego's
death, it is not necessary to resolve his first two assignments of error, wherein he
assails the imposition of reclusion perpetua as a cruel and unusual penalty and
wherein it is argued that there is no complex crime of malversation through
falsification committed by negligence.
In the third assignment of error, it is contended that the trial court erred in
allowing private prosecutors Millora and Urbiztondo to prosecute the case,
thereby allegedly subjecting the accused to proceedings marked by undue
publicity, pre-judgment, bias and political self-interest.
Atty. Vicente D. Millora, a senior member of the provincial board actually handled
the prosecution of the case from the preliminary investigation, which started on
June 5, 1969, up to the termination of the trial on July 29, 1970.
At the commencement of the preliminary investigation, the counsel for the
accused auditor inquired whether Atty. Millora was authorized by the provincial

board to act as private prosecutor in representation of the province of

Pangasinan, the offended part. Atty. Millora replied that there was a board
resolution designating him as private prosecutor.

The acting provincial commander, who filed the complaints, manifested to the trial
court that he had authorized Atty. Millora to act as private prosecutor (4-8 tsn
June 5, 1969).
Another defense counsel filed a written motion to inhibit Millora and the others as
private prosecutors. The lower court denied the motion in its order of June 18,
1969 (p. 40, Record of Criminal Case No. 23350).
After the termination of the preliminary investigation conducted by the lower
court, the provincial fiscal of Pangasinan and the city fiscal of Dagupan City filed
three informations against the accused all dated November 4, 1969.
At the commencement of the trial on February 23, 1970 the city fiscal, an
assistant provincial fiscal, and Atty. Millora, the private prosecutor, appeared for
the prosecution. The city fiscal moved "that the private prosecutor (Millora) be
authorized to conduct the examination subject to our (the fiscal's) control and
supervision". The trial court granted the motion (7 tsn).

prcd

At the hearing on April 23, 1970 the same city fiscal moved that Atty. Urbiztondo
be authorized to examine the prosecution witnesses under his supervision and
control. The trial court granted the motion (155 tsn).
The record shows that at every hearing the provincial fiscal, the city fiscal or an
assistant fiscal were present together with the private prosecutor.
Under the foregoing circumstances, we believe that there was substantial
compliance with the rule that the criminal action should be "prosecuted under the
direction and control of the fiscal" and that "the provincial fiscal shall represent
the province" in any court (Sec. 4, Rule 110, Rules of Court; sec. 1683, Revised
Administrative Code).

The observation of Sendaydiego's counsel, that the imposition of reclusion

perpetua "could have been the result of the undue publicity, prejudgment, bias
and political self-interest which attended the proceedings", is not well founded.
The trial court's decision dispels any doubt as to its impartiality. The evidence in
the three cases is mainly documentary. The unassailable probative value of the
documents involved. rather than bias and prejudice, was the decisive factor on
which the trial court anchored the judgment of conviction.
Moreover, as already adverted to, Sendaydiego's death had rendered moot the
issue as to the propriety of the imposition of reclusion perpetua. And, as will be
shown later, reclusion perpetua cannot be imposed in these cases because the
crimes committed were not complex.
The other seven assignments of error made by Sendaydiego's counsel refer to
the trial court's conclusion that Sendaydiego and Samson are guilty beyond
reasonable doubt of malversation through falsification or, specifically, that the
provincial treasurer, in signing the six vouchers, evinced "malice or fraud and that
there must have been connivance between" the two.
Several circumstances indicate that Sendaydiego conspired with Samson.
Donato N. Rosete, the assistant provincial treasurer, testified that, contrary to the
usual procedure, he affixed his initial to paragraph 3 of the vouchers
after Sendaydiego had signed it. Rosete adhered to that unusual procedure
because the interested party, Samson, who hand carried the vouchers,
approached Rosete after he (Samson) had conferred with the provincial treasurer
and Samson told Rosete to initial the voucher because it was areglado
na (already settled) since the treasurer had already signed the voucher (54 tsn
July 3, 1969).
Rosete's testimony and affidavit confute appellant Sendaydiego's contention that
the trial court erred in finding that he signed the questioned vouchers before
Rosete had placed his initial in them. After the treasurer had signed the voucher,
Rosete's duty to initial it was only ministerial (75 tsn July 3, 1969).

The bookkeeper in the treasurer's office testified that he indicated in the vouchers
that the amounts covered thereby should be paid in cash. That indication was
made by means of the symbol "A-1-1" placed at the bottom of the vouchers under
the column "Account Number". The bookkeeper was instructed by Samson to
place that symbol. Samson told him that he (Samson) had an understanding with
Treasurer Sendaydiego that the payment should be made in cash. There were
instances when the treasurer insisted on payment by check to creditors other
than Juan Samson.
The cash payments were made to Samson in the inner office of the provincial
treasurer where the cashier was summoned to make the cash payments (11-12
tsn July 9, 1969; p. 11, Exh. EE). As noted by the trial court, it was unusual that
the payments should be made in the treasurer's office when that was a ministerial
chore of the cashier.
The cash payments were made to Samson even if Samson had no power of
attorney from the Carried Construction Supply Co. authorizing him to receive the
payments. The space in the vouchers for the signature of the witness, who
should be present when the payments were received, was blank. The treasurer
did not bother to have a witness to attest to the payments or to require the
exhibition of Samson's residence certificate.
Another apt observation of the trial court is that the forged character of the six
vouchers would have been unmasked by the supposed creditor, Carried
Construction Supply Co., if the payments had been made by means of checks.
The company on receiving the checks would have returned them to the treasurer
because it knew that there was no reason to make any payments at all. The trial
court said that the cash payments prove Sendaydiego's collusion with Samson.
Sendaydiego's counsel assails the lower court's finding that there was a
conspiracy between the provincial treasurer and Samson as shown by the fact
that the amounts covered by the vouchers were paid to Samson by the cashier in
the treasurer's inner office. That point was testified to by Rosete, the assistant
provincial treasurer.

The cashier, Napoleon Ulanday, would have been the best witness on how and
where the payments were made. However, Ulanday died before the preliminary
investigation was started. On May 27, 1969, after the anomalies were unearthed,
he wrote a letter to the provincial treasurer, stating that he paid to Samson the
amounts covered by five vouchers in the presence of Salazar K. Misal and
Josefina E. Pulido (Exh. 13).
Rosete was in a position to state that the cash payments were made to Samson
in the treasurer's inner office because his table was near the main door of the
treasurer's office or was about fifteen meters away (18 tsn). Rosete always knew
when the cashier went to the treasurer's office because the cashier was
summoned by means of a buzzer (long buzz), and when the cashier came out of
the treasurer's office, he would be holding the voucher (12-13 tsn).
Sendaydiego's counsel stressed that no gross negligence can be imputed to the
treasurer (malversation is a crime which can be committed by means
ofdolo or culpa and the penalty in either case is the same). This argument does
not deserve serious consideration because the facts proven by the prosecution
show that he had a tieup with Samson and that he acted maliciously in signing
the six questioned vouchers.
The last contention put forward for Sendaydiego is that, because the trial court
acquitted the auditor, then the treasurer's exoneration follows as a matter of
course. We see no merit in that contention because the evidence for the
prosecution against Sendaydiego is not the same as its evidence against the
auditor. For that reason, the auditor was charged only as an accomplice,
whereas, the treasurer was charged as a principal. The auditor based his
defense on the undeniable fact that the treasurer had approved the six vouchers
"for pre-audit and payment" before they were passed upon by the auditor. In
short, the auditor was misled by the treasurer's certification which the auditor
apparently assumed to have been made in good faith when in truth it was made
in bad faith.

We are convinced after a minutes examination of the documentary and oral

evidence and an unprejudiced consideration of the arguments ofSendaydiego's
learned counsel that his criminal liability was established beyond reasonable
doubt and, therefore, the civil liability of his estate for the amounts malversed was
duly substantiated.
Samson's appeal. Samson's brief has no statement of facts. He contends that
the trial court erred in disregarding the expert testimony that his signatures on the
vouchers are not his signatures; in finding that he forged the vouchers and
received the proceeds thereof, and in relying on circumstantial evidence as proof
of conspiracy.
As a preliminary issue, Samson argues that Judge Eloy B. Bello should have
inhibited himself "in fairness to the accused, in the interest of justice, and as a
gesture of delicadeza" because he had conducted the preliminary investigation.

LexLib

Our searching study of the record fails to sustain Samson's insinuation that he
was prejudiced by the fact that the Judge, who conducted the preliminary
investigation, was the one who tried the case and convicted him. Judge Bello
tried the case fairly. His conduct of the trial does not show that he had already
prejudged their guilt.
Section 13, Rule 112 of the Rules of Court, in allowing a Court of First Instance
to conduct a preliminary investigation, does not disqualify it from trying the case
after it had found probable cause and after the fiscal, as directed by the Court
had filed the corresponding information. The rule assumes that the Judge, who
conducted the preliminary investigation, could impartially try the case on the
merits.
We cannot assume that judges as a rule are opinionated and narrow-minded
insomuch that they would invariably be iron-bound by their findings at the
preliminary investigation.
The case of a Judge of the Court of First Instance, who conducts a preliminary
investigation and then tries the case on the merits, is similar to a situation where
an inferior court conducts a preliminary investigation of a grave or less grave

offense falling within the concurrent jurisdiction of the Court First Instance and
the inferior court. In such a case, the inferior court after terminating the
preliminary investigation is not obligated ( por delicadeza) to remand the case to
the Court of First Instance for trial. The inferior court has the option to try the
case on the merits. (People vs. Palmon, 86 Phil. 350; Natividad vs. Robles, 87
Phil. 834; People vs. Colicio, 88 Phil. 196). The assumption is that the inferior
court can try the case without any ingrained bias or undue prejudice.

Samson sought to prove, through Lieutenant Colonel Jose G. Fernandez, retired

chief of the Constabulary crime laboratory, a handwriting expert, that his
signatures on the vouchers are not his signatures.
Fernandez found that the questioned signatures and the alleged genuine
signatures (exemplars) of Samson have fundamental differences. The expert
concluded that the questioned signatures and the exemplar signatures of
Samson were not written by one and the same person (Exh. 20).
After examining the questioned and genuine signatures and analyzing the
evidence and contentions of the parties, we find that the expert is correct in
declaring that (as admitted by the trial court) there are radical differences
between the questioned and authentic signatures.
But the expert is in error in concluding that Samson did not forge the questioned
signatures or in implying that Samson had no hand in the writing thereof.
The truth is that Samson used two forms of signature. His supposed genuine
signatures found in his residence certificates, income tax returns and the genuine
official receipt of the Carried Construction Supply Co. are "in an arcade form or
rounded form of writing". The surname Samson is encircled.
On the other hand, the questioned signatures used in Samson's transactions with
the provincial government are in angular form; his surname is not encircled, and
the questioned signatures terminate in angular and horizontal strokes.

Samson was consistent in his fakeries. Knowing that the six vouchers evidenced
fictitious transactions, he used therein his fake signature, or the signature which
is different from his signature in genuine documents. He used his forged
signatures in the six fake official receipts of the Carried Construction Supply Co.,
stating that the amounts covered by the six vouchers were received by him (Exh.
K-6, KK to KK-4). the expert admitted that a person may have two forms of
signature (186 tsn July 16, 1970).
Signatures may be deliberately disguised with the dishonest intention of denying
the same as and when necessary (Mehta, Identification of Handwriting and Cross
Examination of Experts, pp. 4th Ed., 1970, p. 224; Harrison, Suspect Documents
418-419).
Sendaydiego himself testified that the questioned signatures of Samson in the six
vouchers were Samson's signatures (94-99 tsn July 31, 1969).
Fernandez, the handwriting expert, declared that the questioned signatures of
Samson in the vouchers were written by only one person (264-265 tsn July 16,
1970).

LLjur

The evidence conclusively proves that Samson, as the representative or collector

of the supposed creditor, Carried Construction Supply Co., hand-carried the
vouchers in question to the offices of the provincial engineer, treasurer and
auditor and then back to the treasurer's office for payment. He actually received
the cash payments. Under those circumstances, Samson is presumed to be the
forger of the vouchers.
The rule is that if a person had in his possession a falsified document and be
made use of it (uttered it), taking advantage of it and profiting thereby, the
presumption is that he is the material author of the falsification. This is especially
true if the use or uttering of the forged documents was so closely connected in
time with the forgery that the user or possessor may be proven to have the
capacity of committing the forgery, or to have close connection with the forgers,
and therefore, had complicity in the forgery. (U.S. vs. Castillo, 6 Phil.

453; People vs.

De

Lara,

45

Phil.

754; People vs.

Domingo,

49

Phil.

28; People vs. Astudillo, 60 Phil. 338; People vs. Manansala, 105 Phil. 1253).
In the absence of a satisfactory explanation, one who is found in possession of a
forged document and who used or uttered it is presumed to be the forger
(Alarcon vs.

Court

of

Appeals,

L-21846,

March

31,

1967,

19

SCRA

688; People vs. Caragao, L-28258, December 27, 1969, 30 SCRA 993).
Samson's use of one form of signature for his crooked transaction with the
provincial government and another form of signature of his valid transactions or
papers shows the deviousness of the falsifications perpetrated in these cases.
(Note that Sendaydiego signed the certification in the first voucher, Exhibit K,
stating that proceeds thereof were paid Samson but Sendaydiego did not sign the
same certification in the other five forged vouchers, Exhibits O, P, Q, R and S).
As to the question of conspiracy, the statement of Samson's counsel on page 19
of his brief, that "the trial court made absolutely no finding of any supposed
conspiracy" between Samson and Sendaydiego, is not correct.
We have already noted that the trial court explicitly stated that the circumstance
that Sendaydiego signed the six vouchers ahead of his assistant shows that there
was "malice or fraud" on the part of Sendaydiego and that there was connivance
between Samson and Sendaydiego when the proceeds of the vouchers were
paid to Samson in Sendaydiego's inner office, instead of in the cashier's office (p.
23, 26, Decision, Appendix to Samson's brief). The trial court said that the fact
that Sendaydiego allowed payment in cash shows "his collusion" with Samson
(Ibid, p. 26).
Samson's contention that the trial court merely conjectured that he had received
the proceeds of the vouchers is not well-taken. The trial court's finding on that
point is based on very strong circumstantial evidence (assuming that it was not
proven that Samson signed the vouchers).
Samson vehemently argues that there is no evidence that the total sum of
P57,048.23 paid under the six vouchers "was really misappropriated". He asserts
that the six vouchers are genuine (although he contends that his signatures

thereon are forgeries) and that there is no proof that the amounts covered
thereby were not paid for the construction materials indicated therein. He insists
that the materials were actually delivered to the province.
These contentions appear to be untenable in the light of the declaration of
Jabanes, the assistant manager of Carried Construction Supply Co., the alleged
supplier, that the materials shown in the six vouchers were never delivered by the
company (Exh. HH).
And Leticia Sevilleja (wife of the provincial engineer), who was employed as
cashier of the Carried Construction Supply Co., denied that Samson turned over
to the company the proceeds of the six vouchers which he was supposed to have
collected for the company from Sendaydiego. The six vouchers appear to be fake
principally because they evidence fictitious sales of construction materials.
Under the said circumstances, it cannot be contended that there was no
malversation after Sendaydiego admitted that Samson acknowledged in the six
vouchers that he received from Treasurer Sendaydiego the total sum of
P57,048.23.
The assertion of Samson's counsel on page 29 of his brief, that the finding as to
his guilt is based on a shaky foundation or is predicated on circumstances which
were not proven, is not correct.
Recapitulation: In resum, it appears that the provincial treasurer wants to base
his exculpation on his belief that in the six vouchers the signatures of Samson
and the officials in the provincial engineer's office appeared to be genuine and on
the fact that the auditor had approved the vouchers. The treasurer claimed that
he acted in good faith in approving the payments of the proceeds of the vouchers
to Samson as the representative of the supplier, Carried Construction Co.
On the other hand, Samson, by impugning his signatures in the vouchers, denied
that he received the said amounts from the cashier of the treasurer's office.
These conflicting versions of the treasurer and Samson have to be resolved in
the light of the inexpugnable fact that Samson had hand-carried the vouchers

and followed up their processing in the offices of the provincial engineer,

treasurer and auditor (Exh. AA, p. 1, Exh. CC, p. 2; Exh. DD; Exh. W and EE, p.
5) and that Samson's principal, the Carried Construction Supply Co., denied
having sold to the provincial government the construction materials described in
the six vouchers and denied having received from Samson the prices of the
alleged sales.
The result is that Samson's denial of his signatures in the six vouchers and in the
six receipts (Exh. K-6 and KK to KK-4) and the provincial treasurer's pretension of
having acted in good faith or having committed an honest mistake have to be
disbelieved.
The unavoidable conclusion is that Sendaydiego and Samson were in cahoots to
defraud the provincial government and to camouflage the defraudation by means
of the six vouchers which have some genuine features and which appear to be
extrinsically authentic but which were intrinsically fake.
Penalties. The trial court and the parties assumed that three complex crimes
of malversation through falsification of public documents were committed in this
case. That assumption is wrong.
The crimes committed in these three cases are not complex. Separate crimes of
falsification and malversation were committed. These are not cases where the
execution of a single act constitutes two grave or less grave felonies or where the
falsification was used as a means to commit malversation.
In the six vouchers the falsification was used to conceal the malversation. It is
settled that if the falsification was resorted to for the purpose of hiding the
malversation, the falsification and malversation are separate offenses (People vs.
Cid, 66 Phil. 354; People vs. Villanueva, 58 Phil. 671; People vs. Garalde, 52
Phil. 1000; People vs. Regis, 67 Phil. 43).
In the Regis case, supra, where the modus operandi is similar to the instant
cases, the municipal treasurer made it appear in two official payrolls dated April
30 and May 2, 1931 that some persons worked as laborers in a certain street
project at Pinamungahan, Cebu. In that way, the two amounts covered by the

payrolls, P473.70 and P271.60, were appropriated and taken from the municipal
funds. As a matter of fact, no such work was done in the said street project and
the persons mentioned in both payrolls had not performed any labor.

It was held in the Regis case, that the falsification and malversation did not
constitute a complex crime because the falsifications were not necessary means
for the commission of the malversations. Each falsification and each malversation
constituted independent offenses which must be punished separately.
The municipal treasurer was convicted of two falsification and two malversations.
Four distinct penalties were imposed.
In the instant cases, the provincial treasurer, as the custodian of the money
forming part of the road and bridge fund, could have malversed or
misappropriated it without falsifying any voucher. The falsification was used as a
device to prevent detection of the malversation.
The falsifications cannot be regarded as constituting one continuing offense
impelled by a single criminal impulse.
Each falsification of a voucher constitutes one crime. The falsification of six
vouchers constitutes six separate or distinct offenses (People vs. MadrigalGonzales, 117 Phil. 956).
And each misappropriation as evidenced by a provincial voucher constitutes a
separate offense. The six misappropriations evidenced by the six vouchers
constitute six distinct offenses (U.S. vs. Sacramento, 53 Phil. 639).
The overall result is that in these three cases six separate offenses of falsification
and six separate crimes of malversation were committed. Appellant Samson is a
co-principal in each of the said twelve offenses.
As already stated, he is presumed to be the author of the falsification because he
was in possession of the forged vouchers and he used them in order to receive
public monies from the provincial treasurer.

cdrep

He is a co-principal in the six crimes of malversation because he conspired with

the provincial treasurer in committing those offenses. The trial court correctly
ruled that a private person conspiring with an accountable public officer in
committing malversation is also guilty of malversation (People vs. Rodis, 105
Phil. 1294; U.S. vs. Ponte, 20 Phil. 379; U.S. vs. Dato and Lustre, 37 Phil. 359;
U.S. vs. Dowdell, 11 Phil. 4; People vs. Caluag, 94 Phil. 457).
Note that a different rule prevails with respect to a stranger taking part in the
commission of parricide or qualified theft. In such cases, the stranger is not guilty
of parricide or qualified theft but only of murder or homicide, as the case may be,
and simple theft, by reason of paragraph 3, article 62 of the Revised Penal Code
(People vs. Patricio, 46 Phil. 875 and People vs. Valdellon, 46 Phil. 245).
Falsification of a public document committed by a private person is punished in
article 172(1) of the Revised Penal Code by prision correccional in its medium
and maximum periods and a fine of not more than P5,000.
For the malversation of the sum of P5,187.28 and P4,501.38, respectively
covered by vouchers Nos. 11869 and 11872 (Exh. P and S), the penalty provided
in paragraph 2 of article 217 of the Revised Penal Code is prision
mayor minimum and medium.
For the malversation of the sums of P6,290.60 and P9,769.64, respectively
covered by vouchers Nos. 11870 and 11871 (Exh. Q and R) the penalty provided
in

paragraph

of

article

217

is prision

mayor maximum

of reclusion

temporal minimum.
For the malversation of the sums of P16,727.52 and P14,571.81 respectively
covered by vouchers Nos. 10724 and 10995 (Exh. K and O), the penalty provided
in paragraph 4 of article 217 is reclusion temporal medium and maximum.
In each of the malversation cases, a fine equal to the amount malversed should
be added to the imprisonment penalty.

In the twelve cases the penalty should be imposed in the medium period since
there are no modifying circumstances (Arts. 64[1] and 65, Revised Penal Code).
Samson is entitled to an indeterminate sentence.
WHEREFORE, Samson is convicted of six crimes of falsification of a public
document and six crimes of malversation.
In lieu of the penalties imposed by the trial court, he is sentenced to the following
penalties:
For each of the six falsifications of the vouchers (Exh. K, O, P, Q, R and S),
Samson is sentenced to an indeterminate penalty of two (2) years of prison
correccional minimum,

as

minimum,

to

four

(4)

years

of prision

correccional medium, as maximum, and to pay a fine of three thousand pesos.

For the malversation of the sum of P16,727.52 covered by voucher No. 10724
(Exh. K), Samson is sentenced to an indeterminate penalty of twelve (12) years
of prision mayor maximum, as minimum, to seventeen (17) years of reclusion
temporal medium, as maximum; to pay a fine in the amount of P16,727.52, and
to indemnify the province of Pangasinan in the same amount (Criminal Case No.
23349, L-33252).

LLpr

For the malversation of the sum of P14,571.81 covered by voucher No. 11995
(Exh. O), Samson is sentenced to an indeterminate penalty of twelve (12) years
of prision mayor maximum, as minimum, to seventeen (17) years of reclusion
temporal medium, as maximum; to pay a fine in the sum of P14,571.81, and to
indemnify the province of Pangasinan in the same amount (Criminal Case No.
23351, L-33254).
For the malversation of the sum of P6,290.60 covered by voucher No. 11870
(Exh. Q), Samson is sentenced to an indeterminate penalty of nine (9) years
of prision

mayor medium,

as

minimum,

to

thirteen

(13)

years

of reclusion temporal minimum, as maximum; to pay a fine of P6,290.60, and to

indemnify the province of Pangasinan in the same amount (Criminal Case No.
23350, L-33253).

For the malversation of the sum of P9.769.64 covered by voucher No. 11871
(Exh. R), Samson is sentenced to an indeterminate penalty of nine (9) years
of prision mayor medium, as minimum, to thirteen (13) years of reclusion
temporal minimum, as maximum; to pay a fine of P9,769.64, and to indemnify the
province of Pangasinan in the same amount (Criminal Case No. 23350, L-33253).
For the malversation of the sum of P5,187.28, covered by voucher No. 11869
(Exh. P), Samson is sentenced to an indeterminate penalty of five (5) years
of prision

correccional maximum,

as

minimum,

to

eight

(8)

of prision

mayor minimum, as maximum; to pay a fine of P5,187.28, and to indemnify the

province of Pangasinan in the same amount (Criminal Case No. 23350, L-33253).
For the malversation of the sum of P4,501.38 covered by voucher no. 11872
(Exh. S), Samson is sentenced to an indeterminate penalty of five (5) years
ofprision correccional maximum, as minimum, to eight (8) years of prision
mayor minimum, as maximum; to pay a fine of P4,501.38, and to indemnify the
province of Pangasinan in the same amount (Criminal Case No. 23350, L-33253).
In the service of the twelve penalties meted to Samson, the threefold limit
provided for in article 70 of the Revised Penal Code should be observed
(People vs. Escares, 102 Phil. 677), meaning that the maximum penalty that he
should serve is three times the indeterminate sentence of twelve (12) years to
seventeen (17) years, the severest penalty imposed on him, or thirty-six (36)
years to fifty-one (51) years (See People vs. Peas, 68 Phil. 533).
The maximum duration of his sentences should not exceed forty (40) years
(Penultimate par. of art. 70; People vs. Alisub, 69 Phil. 362; People vs.
Concepcion, 59 Phil. 518, 68 Phil. 530 and 69 Phil. 58).
The estate of the late Licerio P. Sendaydiego is ordered to indemnify the province
of Pangasinan in the sum of P57,048.23. Samson and the said estate are
solidarily liable for the said indemnity (Art. 110, Revised Penal Code). Samson
should pay one-half of the costs.
SO ORDERED.

Antonio, Concepcion, Jr. and Santos, JJ., concur.

Fernando, J., took no part.
|||

(People v. Sendaydiego, G.R. Nos. L-33252-54, January 20, 1978)

JOSE MISAMIN, complainant, vs. ATTORNEY

MIGUEL

A. SAN JUAN, respondent.

RESOLUTION

FERNANDO, J :
p

It certainly fails to reflect credit on a captain in the Metro Manila Police force and
a member of the bar, respondent Miguel A. San Juan, to be charged with being
the legal representative of certain establishments allegedly owned by Filipinos of
Chinese descent and, what is worse, with coercing an employee, complainant
Jose Misamin, to agree to drop the charges filed by him against his employer Tan
Hua, owner of New Cesar's Bakery, for the violation of the Minimum Wage Law.
There was a denial on the part of respondent. The matter was referred to the
Office of the Solicitor-General for investigation, report and recommendation.
Thereafter, it would seem there was a change of heart on the part of
complainant. That could very well be the explanation for the non-appearance of
the lawyer employed by him at the scheduled hearings. The efforts of the
Solicitor-General to get at the bottom of things were thus set at naught. Under the
circumstances, the outcome of such referral was to be expected. For the law is
rather exacting in its requirement that there be competent and adequate proof to
make out a case for malpractice. Necessarily, the recommendation was one of
the complaints being dismissed. This is one of those instances then where this
Court is left with hardly any choice. Respondent cannot be found guilty of
malpractice.

Respondent, as noted in the Report of the Solicitor-General, "admits having

appeared as counsel for the New Cesar's Bakery in the proceeding before the
NLRC while he held office as captain in the Manila Metropolitan Police. However,
he contends that the law did not prohibit him from such isolated exercise of his
profession. He contends that his appearance as counsel, while holding a
government position, is not among the grounds provided by the Rules of Court for
the suspension or removal of attorneys. The respondent also denies having
conspired with the complainant Misamin's attorney in the NLRC proceeding in
order to trick the complainant into signing an admission that he had been paid his
separation pay. Likewise, the respondent denies giving illegal protection to
members of the Chinese community in Sta. Cruz, Manila." 1
Then came a detailed account in such Report of the proceedings: "Pursuant to
the resolution of this Honorable Court of March 21, 1975, the Solicitor General's
Office set the case for investigation on July 2 and 3, 1975. The counsel for the
complainant failed to appear, and the investigation was reset to August 15, 1975.
At the latter date, the same counsel for complainant was absent. In both
instances, the said counsel did not file written motion for postponement but
merely sent the complainant to explain the reason for his absence. When the
case was again called for hearing on October 16, 1975, counsel for complainant
failed once more to appear. The complainant who was present explained that his
lawyer was busy 'preparing an affidavit in the Court of First Instance of Manila.'
When asked if he was willing to proceed with the hearing in the absence of his
counsel, the complainant declared, apparently without any prodding, that he
wished his complaint withdrawn. He explained that he brought the present action
in an outburst of anger believing that the respondent San Juan took active part in
the unjust dismissal of his complaint with the NLRC. The complainant added that
after reexamining his case, he believed the respondent to be without fault and a
truly good person." 2
The Report of the Solicitor-General did not take into account respondent's
practice of his profession notwithstanding his being a police official, as "this is not
embraced in Section 27, Rule 138 of the Revised Rules of Court which provides

the grounds for the suspension or removal of an attorney. The respondent's

appearance at the labor proceeding notwithstanding that he was an incumbent
police officer of the City of Manila may appropriately he referred to the National
Police Commission and the Civil Service Commission. As a matter of fact,
separate complaints on this ground have been filed and are under investigation
by the Office of the Mayor of Manila and the National Police Commission." 3 As
for the charges that respondent conspired with complainant's counsel to mislead
complainant to admitting having received his separation pay and for giving illegal
protection to aliens, it is understandable why the Report of the Solicitor General
recommended that they be dismissed for lack of evidence.
The conclusion arrived at by the Solicitor-General that the complaint cannot
prosper is in accordance with the settled law. As far back as in re
Tionko, 4decided in 1922, the authoritative doctrine was set forth by Justice
Malcolm in this wise: "The serious consequences of disbarment or suspension
should follow only where there is a clear preponderance of evidence against the
respondent. The presumption is that the attorney is innocent of the charges
preferred and has performed his duty as an officer of the court in accordance with
his oath." 5 The Tionko doctrine has been subsequently adhered to. 6
This resolution does not in any wise take into consideration whatever violations
there might have been of the Civil Service Law in view of respondent practicing
his profession while holding his position of Captain in the Metro Manila police
force. That is a matter to be decided in the administrative proceeding as noted in
the recommendation of the Solicitor-General. Nonetheless, while the charges
have to be dismissed, still it would not be inappropriate for respondent member of
the bar to avoid all appearances of impropriety. Certainly, the fact that the
suspicion could be entertained that far from living true to the concept of a public
office being a public trust, he did make use, not so much of whatever legal
knowledge he possessed, but the influence that laymen could assume was
inherent in the office held not only to frustrate the beneficent statutory scheme
that labor be justly compensated but also to be at the beck and call of what the
complainant called alien interest, is a matter that should not pass unnoticed.

Respondent, in his future actuations as a member of the bar, should refrain from
laying himself open to such doubts and misgivings as to his fitness not only for
the position occupied by him but also for membership in the bar. He is not worthy
of membership in an honorable profession who does not even take care that his
honor remains unsullied.
WHEREFORE,

this

administrative

complaint

against

respondent

Miguel

A. San Juan is dismissed for not having been duly proved. Let a copy of this
resolution be spread on his record.
Barredo, Antonio, Aquino and Concepcion, Jr., JJ., concur.

|||

(Misamin v. San Juan, A.C. No. 1418 (Resolution), August 31, 1976)

PRESIDENTIAL

COMMISSION

ON

GOOD

GOVERNMENT petitioner, vs.

THE

HONORABLE SANDIGANBAYAN (THIRD

DIVISION),

AEROCOM INVESTORS AND MANAGERS, INC., POLYGON

INVESTORS AND MANAGERS, INC., TRADERS ROYAL BANK,
HECTOR

P.

CORPUS,

and

SEVERINO

P.

BUAN,

JR., respondents.
M.M. Lazaro & Associates for respondents Aerocom & H.P. Corpuz.
Juan D. Ocampo for respondent Polygon Investors & Managers, Inc.
Gonzales Sinense Jimenez & Asso. for respondents Traders Royal Bank &
Severino P. Buan, Jr.
Rilloraza, Africa, De Ocampo & Africa for respondent Polygon.
SYNOPSIS

Respondents

Aerocom

and

Polygon

are

stockholders

of

POTC

and

PHILCOMSAT sequestered by the PCGG in 1986. The writs of sequestration

were, however, lifted in Civil Case No. 0114 for failure of the PCGG to institute
the judicial action contemplated under Section 26, Article XVIII of the 1987
Constitution. Thereafter, respondents Aerocom and Polygon, which had received
dividends for 1986 and 1987 without objection from the PCGG, filed an urgent
motion to intervene to permit them to receive their dividends from the POTC for
the years 1988 and 1989. A hearing was conducted thereon, but the PCGG failed
to appear. Given 5 days to oppose the motion, PCGG filed its opposition way
beyond the period given by the Sandiganbayan. The motion to intervene was
granted. PCGG moved for reconsideration, but the same was denied. Meanwhile,
the dividends for the succeeding years were distributed without objection
from PCGG who even wrote a letter to the POTC stating that it was leaving to
the Sandiganbayan the matter of release of dividends declared last November
15, 1991. Hence, this petition.

AcICTS

There is no denial of due process where the PCGG was given an opportunity to
be heard; that the issue on dividends has become moot and academic having
submitted the same to the discretion of the Sandiganbayan, and that PCGG is
estopped from withholding the distribution of the dividends having allowed the
same in previous and in succeeding years.

ESTaHC

SYLLABUS
1. CONSTITUTIONAL LAW; DUE PROCESS; NOT DENIED WHERE PARTY
GIVEN OPPORTUNITY TO BE HEARD. Contrary to what the PCGG would
like this Court to believe, the PCGG was given ample time and opportunity to
oppose the intervenors' Motions. Thus, the Sandiganbayan issued the first
assailed Resolution on December 10, 1991 granting both Motions, only after both
parties have been heard, hence, no grave abuse of discretion amounting to lack
or excess of jurisdiction was committed by the Sandiganbayan.

2. MERCANTILE LAW; CORPORATIONS; STOCKHOLDERS; ENTITLED TO

DIVIDENDS UNLESS STOCKS OF CORPORATION ARE SEQUESTERED;
CASE AT BAR. There is no doubt that AEROCOM and POLYGON are
registered owners of shares of stock of POTC and as such, they received the
dividends declared in 1986 and 1987 without objection from the PCGG. The
records also reveal that they have never been sequestered nor have there been
any case filed against them by the PCGG. POTC was not impleaded as a partydefendant in Civil Case No. 0009 and the writ of sequestration over the said
corporation had long been lifted by the Sandiganbayan. There is nothing,
therefore, that disqualifies or prevents the intervenors from receiving the
questioned dividends.
3. REMEDIAL LAW; ESTOPPEL; DOCTRINE; APPLICABLE IN CASE AT BAR.
Such being the case, there is no reason for the PCGG now to oppose the
release of the 1988 and 1989 declared dividends to the intervenor-corporations.
The PCGG's selective opposition is not only discriminatory because all the other
stockholders have received their dividends, but it is also oppressive because,
after

all,

the PCGG had

already

submitted

to

the

discretion

of

theSandiganbayan the release of the dividend checks. Clearly, the issue of the
questioned dividends has become moot and academic and the PCGG is
estopped from asserting the authority to withhold the release of dividends to
POTC stockholders, the intervenors included.

HTSIEa

DECISION

YNARES-SANTIAGO, J :
p

This is a Petition for Certiorari with Urgent Prayer for Preliminary Mandatory
Injunction, on the ground of grave abuse of discretion amounting to excess of
jurisdiction caused by the Sandiganbayan's issuance of three Resolutions dated
December 10, 1991, January 27, 1992 and January 29, 1992, in Civil Case No.
0114, entitled "Philippine Communications Satellite Corporation (PHILCOMSAT)

and Philippine Overseas Telecommunications Corporation (POTC), Plaintiffs

versus Presidential Commission on Good Government (PCGG), Defendant."
The Presidential Commission on Good Government (PCGG), in a letter-order
dated March 14, 1986, sequestered the shares of stock in POTC and
PHILCOMSAT owned by Jose L. Africa and Roberto S. Benedicto, two of several
known close associates of then President Marcos. The letter-order requested
Carlos M. Farrales, of New Manila, Quezon City, to do the following:
(S)equester and immediately take over the following establishments, as well as all
assets, funds, and records thereof, to wit:
1. PHILIPPINE

OVERSEAS

COMMUNICATION,

INC.

(PHILCOMSAT/POTC) including SUBMARINE CABLE NETWORK at

Currimao, Ilocos Norte and the PHILIPPINE EARTH STATION at
Pinugay, Tanay:
2. EASTERN TELECOMMUNICATIONS, INCORPORATED including
TROPOSCATTER SYSTEM at Sto. Tomas, Baguio and MICROWAVE
SYSTEM at San Fernando, Pampanga;
3. PHILIPPINE LONG DISTANCE TELEPHONE COMPANY;
4. DOMESTIC SATELLITE at the Domsat Station;
and all other subsidiary organizations emanating therefrom.
In this connection, you are hereby named Officer-in-Charge of all the
above-named companies. As such, you are requested to immediately
freeze all the withdrawals, transfers, and/or remittances from the funds of
the above-enumerated companies under any type of deposit accounts,
trust accounts or placements, with the exception of those which are
necessary for maintaining the ordinary course of business.

SECATH

Accordingly, writs of sequestration were issued by the PCGG over POTC and
PHILCOMSAT. On March 29, 1991, POTC and PHILCOMSAT filed before
theSandiganbayan Civil Case No. 0114, for certiorari and injunction, seeking to
nullify the writs of sequestration and to enjoin PCGG and its officers, agents and

nominees from interfering with the management and operation of said

corporations. Plaintiffs hinged their petition on the argument that since
thePCGG had failed to institute the corresponding judicial action required
under Article XVIII, Section 26, second paragraph of the 1987 Philippine
Constitution, 2 the assailed writs of sequestration issued against them had long
ceased to be effective.
The PCGG opposed the petition, arguing that the sequestration was in full force
and effect, belying the plaintiff-corporations' contention that the PCGGhad failed
to file the mandated judicial action. On the contrary, the PCGG alleged, there was
pending before the Sandiganbayan Civil Case No. 0009, filed on July 22, 1987
well within the period allowed by the cited constitutional provision. One of the
named defendants therein was Jose L. Africa, allegedly a stockholder with
Controlling interest in POTC and PHILCOMSAT. The plaintiff-corporations,
however, were not named party-defendants in Civil Case No. 0009. Nevertheless,
the PCGG contended that the filing of the case against Jose L. Africa, despite the
fact that the plaintiff-corporations were not impleaded as party-defendants,
satisfied the Constitutional provision requiring judicial action against these
sequestered corporations.
On August 8, 1991, POTC and PHILCOMSAT filed a motion for summary
judgment, submitting for resolution the sole issue of whether or not Civil Case
No. 0009 pending before the Sandiganbayan is the judicial action contemplated
and required under Section 26, Article XVIII of the 1987 Constitution, considering
that said corporations were not impleaded as defendants in the said case.
The Sandiganbayan found for the plaintiffs POTC and PHILCOMSAT, ruling that
the PCGG failed to institute any judicial action directly against the plaintiffcorporations. While Jose L. Africa was a stockholder of said corporations, the
latter have a legal personality distinct and separate from their stockholders. Thus,
a suit against any of their stockholders is not ipso facto a suit against the
corporations themselves.

Consequently, the Sandiganbayan issued a Resolution in Civil Case No. 0114,

promulgated on December 4, 1991, disposing as follows:
The writs of sequestration over the herein plaintiff-corporations were
issued on March 14, 1986 and April 11, 1986, or before the ratification of
the Constitution on February 2, 1987. The record does not show,
however, that a judicial action has been filed against the plaintiffcorporations from the date of their sequestration up to August 2, 1987 or
six months after the ratification of the Constitution. On the other hand,
what appears in the record is the Certification of the Acting Clerk of
Court of this Court, Atty. Luisabel Alfonso-Cortez, that no case has been
filed against the plaintiff-corporations as of August 5, 1991 (Annex "A",
Motion). (Italics supplied)
It is our view, therefore, and We so hold that for the failure of
defendant PCGG to file the corresponding judicial action against plaintiffcorporations, PHILCOMSAT and POTC, within the period mandated in
Section 26 of Article XVIII of the 1987 Constitution, the writs of
sequestration issued against them are deemed automatically lifted.
WHEREFORE, the Motion for Summary Judgment is hereby granted. As
prayed for, summary judgment is hereby rendered as follows:
1) The sequestration of herein plaintiff-corporations, Philcomsat and
POTC, is hereby declared lifted;
2) Defendant PCGG, its Commissioners, other officers, employees,
agents,

representatives,

nominees

and

designees,

are

hereby

ENJOINED from preventing disbursements by the plaintiff-corporations,

and from doing any other act that would in any way interfere with, hinder
or hamper the management and operation of plaintiff-corporations; and

3) Declaring as null and void all acts of sequestration against plaintiffcorporations as of August 2, 1987.

IcTaAH

Without pronouncement as to costs.

In the meantime, prior to the above-quoted Resolution of the Sandiganbayan, an

"Urgent Motion to Intervene" in Civil Case No. 0114 and another "Urgent Motion
to Permit Intervenors to Receive their Dividends from the POTC," both dated
October 30, 1991, were filed by Aerocom Investors and Managers, Inc.
(AEROCOM) and Polygon Investors and Managers, Inc. (POLYGON). Intervenors
AEROCOM and POLYGON alleged in their twin motions that they are the
registered owners of 1,668 and 963 unencumbered shares of stock in POTC,
respectively; that the POTC had declared the distribution of cash dividends of
P7,700.00 per share on June 14, 1988 and P14,970.00 per share on October 1,
1989; and that the PCGG refused to countersign the checks issued by POTC
covering the dividends in favor of AEROCOM and POLYGON. The Intervenors
further alleged that this belated objection of thePCGG is patently oppressive,
more so after considering that: (l) the PCGG allowed the intervenors to receive
their dividends in the previous years, particularly those distributed on March 4,
June 3 and October 9, 1986, as well as on December 3, 1987; and (2)
the PCGG had left to the discretion of theSandiganbayan the matter of payment
of the 1989 dividends.
The PCGG opposed the intervenors' Motions stressing that the same should
have been filed in Civil Case No. 009 and not in Civil Case No. 0114 since the
issues raised in the said motions are the same as those involved in Civil Case
No. 009.
On December 10, 1991, the Sandiganbayan issued the first assailed Resolution
granting both motions of the intervenors, for the following reasons:
(1) AEROCOM and POLYGON have an interest in the matter under
litigation in Civil Case No. 0114, or in the success of either
parties, being the registered owners of 1,668 and 963 shares of
stock, respectively, in POTC;
(2) The writ of sequestration over POTC had already been previously
lifted in the Resolution promulgated on December 4, 1991;

(3) The

Motion

for

Intervention

was

seasonably

filed

before

the Sandiganbayan rendered judgment in Civil Case No. 0114 by

way of the Resolution aforementioned;
(4) The intervenors' shares of stock in POTC were never sequestered,
thus they have a right to be paid their respective dividends for the
years 1988 and 1989; and the PCGG has no authority to withhold
the release thereof; and
(5) Further delay would unduly deprive the intervenors AEROCOM and
POLYGON of the dividends they are legally entitled to, and
the PCGG's stubborn refusal to have the funds released by the
depository bank is unreasonably discriminating against the
intervenors.

Consequently, the Sandiganbayan disposed, to wit:

WHEREFORE, premises considered, the "Urgent Motion to Intervene"
and "Urgent Motion to Permit Intervenors to Receive their Dividends from
the Philippine Overseas Telecommunications Corporation" filed by
Aerocom Investors and Managers, Inc. and Polygon Investors and
Managers, Inc. are hereby GRANTED.
Accordingly, this Court hereby directs the immediate payment to
intervenors Aerocom and Polygon of their dividends from the Philippine
Overseas Telecommunications Corporation on their 1,668 and 963
POTC shares, respectively. Said payment would cover dividends for the
years 1988 and 1989 in the amount of P7,700 and P14,970 per share,
respectively, together with the interests due thereon from their due dates
up to the dates of actual payment. For this purpose, the Presidential
Commission on Good Government (PCGG). its representatives or
agents is hereby mandated to immediately lift any restriction on the
issuance, release and/or payment to herein movants-intervenors of any
and all checks, vouchers, and the like appertaining to the aforesaid cash
dividends. Furthermore, PCGG is ordered to report to this Court in

writing, compliance with the foregoing directive. within fifteen (15) days
from receipt hereof.
SO ORDERED. 4

The PCGG filed a Motion for Reconsideration arguing that the filing of Civil Case
No. 0009 seeking, among others, to recover the ill-gotten wealth of the beneficial
owners of POTC, AEROCOM and POLYGON was, in effect, faithful compliance
with the pertinent constitutional requirement. Although the said corporations were
not impleaded as defendants therein, the Sandiganbayan should have allowed
the PCGG to pierce the veil of corporate fiction of these corporations and to
present evidence to prove that these dummy corporations were machinations by
which the named defendants in Civil Case No. 0009, such as Jose L Africa,
acquired their ill-gotten wealth. Furthermore, the PCGG contended that the
matter of who is rightfully entitled to the dividends declared by these corporations
can

only

be

resolved

together

with

the

issues

pending

before

the Sandiganbayan in Civil Case No. 0009. Accordingly, the PCGG had the
authority to withhold the release of the disputed dividends until final resolution of
Civil Case No. 0009.

acIASE

For their part, intervenors AEROCOM and POLYGON filed an Ex-Parte Motion for
Clarification asking the Sandiganbayan to reaffirm the immediate effectivity of the
Resolution dated December 10, 1991 and also to direct the Traders Royal Bank
to honor and pay immediately the amounts stated in Check Nos. 382450 and
382451 without need of PCGG approval. The intervenors also moved to strike
out PCGG's Motion for Reconsideration on the ground that it was filed out of time
and, therefore was merely pro forma and dilatory.
On January 27, 1992, the Sandiganbayan issued the second assailed Resolution
denying both the PCGG's Motion for Reconsideration and the intervenors'
clarificatory motion. The Sandiganbayan reaffirmed its earlier Resolution dated
December 10, 1991, to wit.
At the outset, it bears repeating that the arguments presented by
defendant PCGG in support of the subject motion have all been squarely

met

and

disposed

of

by

this

Court

in

our

previous

Resolutions. PCGG adamantly insists that the filing of Civil Case No.
0009 which is purportedly a suit against the so-called beneficial owners
of POTC, Aerocom, and Polygon, is compliance with Sec. 26, Art. XVIII
of the 1987 Constitution, thereby maintaining the efficacy of the writ of
sequestration it issued against POTC. We cannot sustain such a view.
These corporations to wit: POTC, Aerocom and Polygon were never
impleaded in such civil case. The fact that defendant PCGG raises the
argument that the beneficial owners of these corporations were
impleaded as parties-defendants in said case could only be interpreted
as a tacit admission of its patent failure to file the corresponding judicial
action against them pursuant to the constitutional mandate. As such, the
writ of sequestration it issued over POTC should be deemed to have
been automatically lifted. Moreover, to paraphrase the words of the
Supreme Court in Republic of the Philippines vs. Sandiganbayan, et al.
(August 12, 1991, G.R. No. 92376), whether or not the impleaded
defendants in Civil Case No. 0009 are indeed the beneficial owners of
POTC,

Aerocom,

and

Polygon

is

matter

which

defendant PCGG merely assumes and still has to prove in said case. All
told, defendant PCGG fails to convince us that the automatic lifting of the
writ of sequestration over POTC is not founded on solid factual and legal
grounds.
With respect to the propriety of applying the doctrine of piercing the veil
of corporate identity, we reiterate our earlier holding that the application
of said principle would only come into play once the Court has already
acquired jurisdiction over the corporation. Since this Court has not
acquired jurisdiction over POTC in Civil Case No. 0009, precisely
because it was not impleaded therein as a party defendant, said
contention cannot be upheld.
Finally, defendant PCGG alleges that the motion filed by intervenors
Aerocom and Polygon should have been treated as an incident in Civil

Case No. 0009. We do not think so. By reason of the fact that POTC is
not even a party in Civil Case No. 0009, herein intervenors do not have
any interest in the subject matter of litigation therein as required by Sec.
2, Rule 12 of the Revised Rules of Court. Contrast this with the situation
in the present case wherein intervenors Aerocom and Polygon are
shareholders of plaintiff POTC and as such, have sufficient interest to
intervene, as in fact said intervention has been allowed by this Court in
the Resolution sought to be reconsidered. Suffice it to state that the
propriety of Aerocom and Polygon's intervention in the above-entitled
case has not been successfully challenged.
WHEREFORE, for the aforestated reasons, the "Urgent Motion (a) to
strike out Motion for Reconsideration for being filed out of time; proforma and purely dilatory or frivolous, (b) for Immediate Execution of the
December 10, 1991 Resolution" filed by intervenors Aerocom Investors
and Managers, Inc. and Polygon Investors and Managers, Inc. is hereby
DENIED for lack of merit.
On the other hand, the "Motion for Reconsideration" filed by defendant
Presidential Commission on Good Government (PCGG) is likewise
hereby DENIED for lack of merit. Accordingly, the Resolution of this
Court dated December 10, 1991 is affirmed.
SO ORDERED. 5

On January 29, 1992, the Sandiganbayan issued the third assailed Resolution, to
wit:
Acting on the "Ex-Parte Motion for Clarification" filed by intervenors
Aerocom Managers and Investors, Inc. and Polygon Managers and
Investors, Inc. on December 16, 1991 and considering our Resolutions
of December 10, 1991 and January 27, 1992, We find the same to be
impressed with merit. Accordingly, Traders Royal Bank is hereby directed
to immediately honor and pay Check Nos. 382450 and 382451 issued by
Philippine Overseas Telecommunications Corporation (POTC) in favor of

Aerocom Managers and Investors, Inc. and Polygon Managers and

Investors, Inc., representing dividend payments to the latter for the years
1988 and 1989, as previously indicated in the aforementioned Resolution
of December 10, 1991.

SO ORDERED. 6

Hence, the instant petition for certiorari filed by the PCGG assailing the three
(3) Sandiganbayan Resolutions, ascribing to the said court grave abuse of
discretion amounting to lack or excess of jurisdiction in issuing the same,
contending that these Resolutions are not only conflicting, but also without basis.
The PCGG further stressed that the implementation of these Resolutions will
dissipate beyond retrieval ill-gotten wealth which the State, through the PCGG,
has been trying to recover from the Marcos family, their cronies, dummies,
relatives and other nominees. In this particular instance, the amount involved is
not a measly sum as the State stands to lose a total of P59,644,770.00.
On the first Resolution dated December 10, 1991, the PCGG claims that the
same

was

issued

with

grave

abuse

of

discretion

because

the Sandiganbayangranted the Motion to Intervene as well as the relief sought by

the intervenors even before they could file their complaint-in-intervention, thus
depriving the PCGG opportunity to file its answer thereto.
We do not agree. The intervenors' "Urgent Motion to Intervene" was not for the
purpose of filing a complaint against any of the principal parties in Civil Case No.
0114, but only to ask the Sandiganbayan for leave to file the "Urgent Motion to
Permit the Intervenors to Receive their Dividends from POTC," while the main
case was pending. By the time the Sandiganbayan resolved the intervenors'
Motions, it had already rendered judgment declaring the writ of sequestration
lifted and of no effect. Thus, there was no more obstacle to the intervenors'
receipt of the dividends from POTC. Intervenors AEROCOM and POLYGON had
no cause or intention to file a complaint-in-intervention so there was no need or
reason for the PCGG to answer.

Be that as it may, the PCGG was not totally deprived of the opportunity to oppose
the intervenors' Motions. The records reveal that the Motions were filed on
October 30, 1991 and a hearing thereof was held on November 4, 1991.
The PCGG failed to appear at the scheduled hearing, prompting a certain Atty.
Gregorio Ejercito, Jr. to enter a special appearance and to request that
the PCGG be given five (5) days within which to file its opposition to the
intervenors' Motions. Accordingly, the Sandiganbayan issued an Order granting
the PCGG five (5) days, or until November 9, 1991 to file its opposition. 7 And yet,
it took the PCGG eighteen (18) more days after the lapse of the five-day period
granted by the Sandiganbayan to file a motion for leave to admit its opposition to
the intervenors' Motions. 8
If the PCGG now feels that it was denied its day in court, it has only itself to
blame. Not only did the PCGG fail to appear during the scheduled hearing, but its
opposition to the intervenors' Motions was also filed way beyond the period given
by the Sandiganbayan. Be that as it may, the Sandiganbayanwas lenient enough
to admit the belated opposition.
Contrary to what the PCGG would like this Court to believe, the PCGG was given
ample time and opportunity to oppose the intervenors' Motions. Thus,
the Sandiganbayan issued the first assailed Resolution on December 10, 1991
granting both Motions, only after both parties have been heard, hence, no grave
abuse of discretion amounting to lack or excess of jurisdiction was committed by
the Sandiganbayan. 9
The second assailed Resolution dated January 27, 1992, denied the PCGG's
Motion for Reconsideration of the Resolution dated December 10, 1991.
We find the denial of the PCGG's Motion for Reconsideration proper and wellsupported by the facts. The only issue raised in the Motions filed by the
intervenors was whether or not AEROCOM and POLYGON are entitled to the
dividends declared for distribution by the POTC. A review of the pleadings as well
as the documentary evidence would readily show that, indeed, the intervenors
are entitled thereto.

There is no doubt that AEROCOM and POLYGON are registered owners of

shares of stock of POTC and as such, they received the dividends declared in
1986 and 1987 without objection from the PCGG. The records also reveal that
they have never been sequestered nor have there been any case filed against
them by the PCGG. POTC was not impleaded as a party-defendant in Civil Case
No. 0009 and the writ of sequestration over the said corporation had long been
lifted by the Sandiganbayan. There is nothing therefore, that disqualifies or
prevents the intervenors from receiving the questioned dividends.
In fact, the PCGG subsequently did not raise any objection to the distribution of
dividends in the succeeding years. In a letter dated January 16, 1992 addressed
to the POTC, the then PCGG Chairman, David Castro, wrote:
"As it was in the case of dividend payments out of the dividend
declaration of September 28, 1989, we are leaving to the discretion of
the Court (Sandiganbayan) the matter of the release of dividend checks
for cash dividends declared last November 15, 1991." 10 (Italics supplied)

Such being the case, there is no reason for the PCGG now to oppose the release
of the 1988 and 1989 declared dividends to the intervenor-corporations.
The PCGG's selective opposition is not only discriminatory because all the other
stockholders have received their dividends, but it is also oppressive because,
after

all,

the PCGG had

already

submitted

to

the

discretion

of

the Sandiganbayan the release of the dividend checks. Clearly, the issue of the
questioned dividends has become moot and academic and the PCGG is
estopped from asserting the authority to withhold the release of dividends to
POTC stockholders, the intervenors included.
Finally, on the third assailed Resolution dated January 29, 1992, this Court finds
no error in the Sandiganbayan's directive to the Trader's Royal Bank to
immediately honor and pay Check Nos. 382450 and 382451 issued by the POTC
in favor of the Intervenor-corporations.

IcDESA

The records show that since the promulgation of the said Resolution on
December

10,

1991,

fifty

(50)

days

had

elapsed

before

the SandiganbayanImplemented said Resolution and it was only on January 30,

1992 when the Intervenor-corporations deposited the said checks. Hence, there
was no grave abuse of discretion on the part of the Sandiganbayan when it
issued the third assailed Resolution directing the Traders Royal Bank to honor
and pay the subject dividend checks in favor of the Intervenor-corporations.
WHEREFORE, in view of all the foregoing, the instant petition is hereby
DISMISSED for lack of merit.
|||

(PCGG v. Sandiganbayan, G.R. No. 103797, August 30, 2000)