EN BANC

[G.R. No. 53869. March 25, 1982.]

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.

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 ground
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 L-51122 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." 4 Thus, "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 barred because 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. R-18857, 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. R-18857,
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. Nos. 53869 & 51928, [March 25,
|||

1982], 198 PHIL 427-441)

EN BANC

[G.R. No. L-12817. April 29, 1960.]

JULIO D. ENRIQUEZ, SR., representing the law firm

of ENRIQUEZ & ENRIQUEZ,  petitioner, vs. HON.
PEDRO M. GIMENEZ in his capacity as AUDITOR
GENERAL OF THE PHILIPPINES, respondent.

Julio D. Enríquez, 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. 4415-4417). 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 said Republic 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],
|||

107 PHIL 932-938)

 EN BANC

[G.R. No. 42992. August 8, 1935.]

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.
Avanceña, C.J., Villa-Real, Abad Santos, Hull, Imperial,
Butte and Goddard, JJ., concur.
 (Salcedo v. Hernandez, G.R. No. 42992, [August 8, 1935], 61
|||

PHIL 724-734)
 EN BANC

[Adm. Case No. 598 . March 28, 1969.]

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.
 (Deles v. Aragona, Jr., Adm. Case No. 598, [March 28, 1969],
|||

137 PHIL 61-73)

EN BANC

[A.C. No. 492 . September 5, 1967.]

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
Raña 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 Raña 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 4 that
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 Raña 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 volunteers his 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 co-operate,
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.
 (Blanza v. Arcangel, A.C. No. 492, [September 5, 1967], 128
|||

PHIL 1-5)

EN BANC

[A.C. No. 6492. November 18, 2004.]

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 and
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
of Simpliciano and Capela Law Office subscribed and
sworn to before Notary Public Heherson Alnor
G. Simpliciano whose commission expires December 31,
2002. TCAScE

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.
 (Zoreta v. Simpliciano, A.C. No. 6492, [November 18, 2004], 485
|||

PHIL 395-406)

EN BANC

[A.C. No. 8390. July 2, 2010.]

[Formerly CBD 06-1641]

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 return cards. 6 Despite court
orders and notices, Atty. Valerio refused to abide. 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 IBP-CBD 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 of schizophrenia 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 a 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 2,
|||

2010], 636 PHIL 627-634)

EN BANC

[G.R. No. L-12426. February 16, 1959.]

PHILIPPINE LAWYER'S ASSOCIATION,  petitioner, v
s. 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 the Philippine 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 Philippine Bar 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 Association v. Agrava, G.R. No. L-12426,

|||

[February 16, 1959], 105 PHIL 173-184)

SECOND DIVISION

[G.R. Nos. 86100-03. January 23, 1990.]

 METROPOLITAN BANK AND TRUST
COMPANY,  petitioner, vs. THE
HONORABLE COURT OF APPEALS and ARTURO
ALAFRIZ and ASSOCIATES,  respondents.

Bautista, Picazo, Buyco, Tan & Fider for petitioner.

Arturo A. Alafriz & Associates for and in their own behalf.

SYLLABUS

1. JUDGMENTS; CHARGING LIENS; ENFORCEABLE AS SECURITY

FOR PAYMENT OF ATTORNEY'S FEES. — On the
matter of attorney's liens, Section 37, Rule 138 provides: " . . .
He shall also have a lien to the same extent upon all judgments
for the payment of money, and executions issued in
pursuance of such judgments, which he has secured a
litigation of his client, from and after the time when he shall
have caused a statement of his claim of such lien to be
entered upon the records of the court rendering such
judgment, or issuing such execution, and shall have caused
written notice thereof to be delivered to his client and to the
adverse party; and he shall have the same right and power over
such judgments and executions as his client would have to
enforce his lien and secure the payment of his just fees and
disbursements." Consequent to such provision, a charging lien,
to be enforceable as security for the payment of attorney's fees,
requires as a condition sine qua non a judgment for money and
execution in pursuance of such judgment secured in the main
action by the attorney in favor of his client. A lawyer may
enforce his right to fees by filing the necessary petition as an
incident in the main action in which his services were rendered
when something is due his client in the action from which the fee
is to be paid.
2. ID.; ID.; NOT ENFORCEABLE IN CASE AT BAR. — In the case at
bar, the civil cases below were dismissed upon the
initiative of the plaintiffs "in view of the full
satisfaction of their claims." The dismissal order neither
provided for any money judgment nor made any monetary award
to any litigant, much less in favor of petitioner who was a
defendant therein. This being so, private respondent's supposed
charging lien is, under our rules, without any legal basis. It is
flawed by the fact that there is nothing to generate it and to
which it can attach in the same manner as an ordinary lien arises
and attaches to real or personal property. In point
is Morente vs. Firmalino, cited by petitioner in support of its
position. In that case, movant-appellant attorney sought the
payment of his fees from his client who was the defendant in a
complaint for injunction which was dismissed by the
trial court after the approval of an agreement entered into by
the litigants. This Court held: " . . . The defendant having
suffered no actual damage by virtue of the issuance of a
preliminary injunction, it follows that no sum can be awarded the
defendant for damages It becomes apparent, too, that no amount
having been awarded the defendant, herein appellant's lien could
not be enforced. The appellant, could, by appropriate action,
collect his fees as attorney."
3. ID.; ID.; FOREIGN JUDGMENTS NOT GIVEN WEIGHT WHERE
THE LAW APPLICABLE IS CLEAR AND UNEQUIVOCAL. — It is true
that there are some American cases holding that the lien
attaches even to properties in litigation. However, the statutory
rules on which they are based and the factual situations involved
therein are neither explained nor may it be said that they
are of continuing validity as to be applicable in this jurisdiction.
It cannot be gainsaid that legal concepts of foreign origin
undergo a number of variegations or nuances upon adoption by
other jurisdictions, especially those with variant legal systems.
Since in our jurisdiction the applicable rule provides that a
charging lien attaches only to judgments for money and
executions in pursuance of such judgment, then it must be
taken in haec verba. The language of the law is clear and
unequivocal and, therefore, it must be taken to mean exactly
what it says, barring any necessity for elaborate interpretation.
4. ID.; PETITION FOR RECOVERY OF ATTORNEY'S FEES,
HEARING NECESSARY. — A petition for recovery of attorney's
fees, either as a separate civil suit or as an incident in the main
action, has to be prosecuted and the allegations therein
established as any other money claim. The persons who are
entitled to or who must pay attorney's fees have the right to be
heard upon the question of their propriety or amount. Hence, the
obvious necessity of a hearing is beyond cavil.
5. ID.; FEES; QUANTUM MERUIT BASIS, ELEMENTS THEREOF. —
in fixing a reasonable compensation for the services rendered by
a lawyer on the basis of quantum meruit, the elements to be
considered are generally (1) the importance of the subject
matter in controversy, (2) the extent of the services rendered,
and (3) the professional standing of the lawyer. These are aside
from the several other considerations laid down by this Court in
a number of decisions as pointed out by respondent court. A
determination of all these factors would indispensably require
nothing less than a full-blown trial where private respondent can
adduce evidence to establish its right to lawful attorney's fees
and for petitioner to oppose or refute the same.
5. ID.; ID.; COLLECTION THEREOF; PROPER LEGAL REMEDY
SHOULD BE AVAILED OF AND PROCEDURAL RULES DULY
OBSERVED. — As in the exercise of any other right conferred by
law, the proper legal remedy should be availed of and the
procedural rules duly observed to forestall and obviate the
possibility of abuse or prejudice, or what may be misunderstood
to be such, often to the undeserved discredit of the legal
profession. Law advocacy, it has been stressed, is not capital
that yields profits. The returns it births are simple rewards for a
job done or service rendered. It is a calling that, unlike
mercantile pursuits which enjoy a greater deal of freedom from
government interference, is impressed with public interest, for
which it is subject to State regulation.

DECISION
REGALADO, J  : p

This petition for review on certiorari impugns the

decision of the Court of Appeals in CA-G.R. Nos. 08265-
08268 1 affirming the order of Branch 168, Regional
Trial Court, National Capital Judicial Region, in Civil Cases Nos.
19123-28,19136 and 19144, fixing attorney's fees and directing
herein petitioner Metropolitan Bank and Trust Company
(Metrobank, for brevity), as defendant in said civil cases, to pay
its attorneys, herein private respondent Arturo Alafriz and
Associates, movant therein, the amount of P936,000.00 as
attorney's fees on a quantum merit basis.
The records show that from March, 1974 to September, 1983,
private respondent handled the above-mentioned civil cases
before the then Court of First Instance of Pasig (Branches I, II,
VI, X, XIII, XIX, XX AND XXIV) in behalf of petitioner. 2 The civil
cases were all for the declaration of nullity of certain
deeds of sale, with damages.
The antecedental facts 3 which spawned the filing of said
actions are undisputed and are hereinunder set forth as found by
the trial court and adopted substantially in the
decision of respondent court. A certain Celedonio Javier bought
seven (7) parcels of land owned by Eustaquio Alejandro, et al.,
with a total area of about ten (10) hectares. These properties
were thereafter mortgaged by Javier with the petitioner to
secure a loan obligation of one Felix Angelo Bautista and or
International Hotel Corporation. The obligors having defaulted,
petitioner foreclosed the mortgages after which
certificates of sale were issued by the provincial sheriff in its
favor as purchaser thereof. Subsequently, Alejandro, alleging
deceit, fraud and misrepresentation committed against him by
Javier in the sale of the parcels of land, brought suits against
Javier, et al., and included petitioner as defendant therein.
 LibLex

It was during the pendency of these suits that these

parcels of land were sold by petitioner to its sister corporation,
Service Leasing Corporation on March 23, 1983 for the purported
price of P600,000.00. On the same day, the properties were
resold by the latter to Herby Commercial and Construction
Corporation for the purported price of P2,500,000.00. Three
months later, or on June 7, 1983, Herby mortgaged the same
properties with Banco de Oro for P9,200,000.00. The
lower court found that private respondent, did not have
knowledge of these transfers and transactions.
As a consequence of the transfer of said parcels of land to
Service Leasing Corporation, petitioner filed an urgent motion for
substitution of party on July 28, 1983. Private respondent, on its
part, filed on August 16, 1983 a verified motion to enter in the
records of the aforesaid civil cases its charging lien, pursuant
to Section 37, Rule 138 of the Rules of Court, equivalent to
twenty-five percent (25%) of the actual and current market
values of the litigated properties as its attorney's fees. Despite
due notice, petitioner failed to appear and oppose said motion, as
a result of which the lower court granted the same and
ordered the Register of Deeds of Rizal to annotate the
attorney's liens on the certificates of title of the
parcels of land.
Meanwhile, the plaintiffs Alejandro, et al. in the aforesaid civil
cases, which had been consolidated and were pending before the
Regional Trial Court of Pasig, filed a motion to dismiss their
complaints therein, which motion the lower court granted with
prejudice in its order dated September 5, 1983. On December 29,
1983, the same court ordered the Register of Deeds to
annotate the attorney's liens of private respondent on the
derivative titles which cancelled Transfer Certificates of Title
Nos. 453093 to 453099 of the original seven (7) parcels of land
hereinbefore adverted to.
On May 28, 1984, private respondent filed a motion to fix its
attorney's fees, based on quantum meruit, which motion
precipitated an exchange of arguments between the parties. On
May 30, 1984, petitioner manifested that it had fully paid private
respondent; the latter, in turn, countered that the
amount of P50,000.00 given by petitioner could not be
considered as full payment but merely a cash advance, including
the amount of P14,000.00 paid to it on December 15, 1980. It
further appears that private respondent attempted to arrange a
compromise with petitioner in order to avoid suit, offering a
compromise amount of P600,000.00 but the negotiations were
unsuccessful.  cdll

Finally, on October 15, 1984, the court a quo issued the order

assailed on appeal before respondent court, granting
payment of attorney's fees to private respondent, under the
following dispositive portion:
"PREMISES CONSIDERED, the motion is hereby granted
and the Metropolitan Bank and Trust Company
(METROBANK) and Herby Commercial and Construction
Corporation 4 are hereby ordered to pay the movant
Arturo Alafriz and Associates the amount of P936,000.00
as its proper, just and reasonable attorney's fees in these
cases." 5

On appeal, respondent court affirmed the order of the

trial court in its decision promulgated on February 11, 1988. A
motion for reconsideration, dated March 3, 1988, was filed by
petitioner but the same was denied in a resolution promulgated
on November 19, 1988, hence the present recourse.
The issues raised and submitted for determination in the present
petition may be formulated thus: (1) whether or not private
respondent is entitled to the enforcement of its charging lien for
payment of its attorney's fees; (2) whether or not a separate
civil suit is necessary for the enforcement of such lien, and (3)
whether or not private respondent is entitled to twenty-five
(25%) of the actual and current market values of the litigated
properties on a quantum meruit basis.
On the first issue, petitioner avers that private respondent has no
enforceable attorney's charging lien in the civil cases before
the court below because the dismissal of the complaints
therein were not, in the words of Section 37, Rule 138,
judgments for the payment of money or executions issued in
pursuance of such judgments. 6
We agree with petitioner.
On the matter of attorney's liens, Section 37, Rule 138
provides:
" . . . He shall also have a lien to the same extent upon all
judgments for the payment of money, and executions
issued in pursuance of such judgments, which he has
secured a litigation of his client, from and after the time
when he shall have caused a statement of his
claim of such lien to be entered upon the
records of the court rendering such judgment, or issuing
such execution, and shall have caused written notice
thereof to be delivered to his client and to the adverse
party; and he shall have the same right and power over
such judgments and executions as his client would have
to enforce his lien and secure the payment of his just
fees and disbursements."

Consequent to such provision, a charging lien, to be enforceable

as security for the payment of attorney's fees, requires as a
condition sine qua non a judgment for money and execution in
pursuance of such judgment secured in the main action by the
attorney in favor of his client. A lawyer may enforce his right to
fees by filing the necessary petition as an incident in the main
action in which his services were rendered when something is
due his client in the action from which the fee is to be paid. 7
In the case at bar, the civil cases below were dismissed upon the
initiative of the plaintiffs "in view of the full
satisfaction of their claims." 8 The dismissal order neither
provided for any money judgment nor made any monetary award
to any litigant, much less in favor of petitioner who was a
defendant therein. This being so, private respondent's supposed
charging lien is, under our rules, without any legal basis. It is
flawed by the fact that there is nothing to generate it and to
which it can attach in the same manner as an ordinary lien arises
and attaches to real or personal property.  llcd
In point is Morente vs. Firmalino, 9 cited by petitioner in
support of its position. In that case, movant-appellant attorney
sought the payment of his fees from his client who was the
defendant in a complaint for injunction which was dismissed by
the trial court after the approval of an agreement entered into
by the litigants. This Court held:
" . . . The defendant having suffered no actual damage by
virtue of the issuance of a preliminary injunction, it
follows that no sum can be awarded the defendant for
damages It becomes apparent, too, that no amount having
been awarded the defendant, herein appellant's lien could
not be enforced. The appellant, could, by appropriate
action, collect his fees as attorney."

Private respondent would nevertheless insist that the lien

attaches to the "proceeds of a judgment of whatever
nature," 10 relying on the case of Bacolod-Murcia Milling Co.
Inc.  vs. Henares  11 and some American cases holding that the
lien attaches to the judgment recovered by an attorney and the
proceeds in whatever form they may be. 12
The contention is without merit just as its reliance is misplaced.
It is true that there are some American cases holding that the
lien attaches even to properties in litigation. However, the
statutory rules on which they are based and the factual
situations involved therein are neither explained nor may it be
said that they are of continuing validity as to be applicable in
this jurisdiction. It cannot be gainsaid that legal
concepts of foreign origin undergo a number of variegations or
nuances upon adoption by other jurisdictions, especially those
with variant legal systems.
In fact, the same source from which private respondent culled
the American cases it cited expressly declares that "in the
absence of a statute or of a special agreement providing
otherwise, the general rule is that an attorney has no lien on the
land of his client, notwithstanding such attorney has, with
respect to the land in question, successfully prosecuted a suit to
establish the title of his client thereto, recovered title or
possession in a suit prosecuted by such client, or defended
successfully such client's right and title against an unjust claim
or an unwarranted attack," 13 as is the situation in the case at
bar. This is an inescapable recognition that a contrary rule
obtains in other jurisdictions thereby resulting in doctrinal
rulings of converse or modulated import.  LLpr

To repeat, since in our jurisdiction the applicable rule provides

that a charging lien attaches only to judgments for money and
executions in pursuance of such judgment, then it must be
taken in haec verba. The language of the law is clear and
unequivocal and, therefore, it must be taken to mean exactly
what it says, barring any necessity for elaborate
interpretation. 14
Notably, the interpretation, literal as it may appear to be, is not
without support in Philippine case law despite the
dearth of cases on all fours with the present case. In Caiña, et
al. vs. Victoriano, et al.,  15 the Court had the occasion to rule
that "the lien of respondent is not of a nature which attaches
to the property in litigation but is at most a personal claim
enforceable by a writ of execution." In Ampil  vs. Juliano-
Agrava, et al.,  16 the Court once again declared that a charging
lien "presupposes that the attorney has secured a favorable
money judgment for his client . . . ." Further,
in Director  of Lands  vs. Ababa, et al., 17 we held that "(a)
charging lien under Section 37, Rule 138 of the Revised
Rules of Court is limited only to money judgments and not to
judgments for the annulment of a contract or for
delivery of real property as in the instant case."
Even in the Bacolod-Murcia Milling case, which we previously
noted as cited by private respondent, there was an express
declaration that "in this jurisdiction, the lien does not attach to
the property in litigation."
Indeed, an attorney may acquire a lien for his compensation upon
money due his client from the adverse party in any action or
proceeding in which the attorney is employed, but such lien does
not extend to land which is the subject matter of the
litigation. 18 More specifically, an attorney merely defeating
recovery against his client as a defendant is not entitled to a lien
on the property involved in litigation for fees and the court has
no power to fix the fee of an attorney defending the client's title
to property already in the client's possession. 19
While a client cannot defeat an attorney's right to his charging
lien by dismissing the case, terminating the services of his
counsel, waiving his cause or interest in favor of the adverse
party or compromising his action, 20 this rule cannot find
application here as the termination of the cases below was not
at the instance of private respondent's client but of the
opposing party.
The resolution of the second issue is accordingly subsumed in
the preceding discussion which amply demonstrates that private
respondent is not entitled to the enforcement of its charging
lien.
Nonetheless, it bears mention at this juncture that an
enforceable charging lien, duly recorded, is within the
jurisdiction of the court trying the main case and this
jurisdiction subsists until the lien is settled. 21 There is certainly
no valid reason why the trial court cannot pass upon a petition
to determine attorney's fees if the rule against
multiplicity of suits is to be activated. 22 These decisional
rules, however, apply only where the charging lien is valid and
enforceable under the rules.
On the last issue, the Court refrains from resolving the same so
as not to preempt or interfere with the authority and adjudicative
facility of the proper court to hear and decide the controversy
in a proper proceeding which may be brought by private
respondent.  LLphil

A petition for recovery of attorney's fees, either as a separate

civil suit or as an incident in the main action, has to be
prosecuted and the allegations therein established as any other
money claim. The persons who are entitled to or who must pay
attorney's fees have the right to be heard upon the
question of their propriety or amount. 23 Hence, the obvious
necessity of a hearing is beyond cavil.
Besides, in fixing a reasonable compensation for the services
rendered by a lawyer on the basis of quantum meruit, the
elements to be considered are generally (1) the
importance of the subject matter in controversy, (2) the
extent of the services rendered, and (3) the professional
standing of the lawyer. 24 These are aside from the several
other considerations laid down by this Court in a
number of decisions as pointed out by respondent court. 25 A
determination of all these factors would indispensably require
nothing less than a full-blown trial where private respondent can
adduce evidence to establish its right to lawful attorney's fees
and for petitioner to oppose or refute the same.
 
Nothing in this decision should, however, be misconstrued as
imposing an unnecessary burden on private respondent in
collecting the fees to which it may rightfully be entitled. But, as
in the exercise of any other right conferred by law, the proper
legal remedy should be availed of and the procedural rules duly
observed to forestall and obviate the possibility of abuse or
prejudice, or what may be misunderstood to be such, often to the
undeserved discredit of the legal profession.
Law advocacy, it has been stressed, is not capital that yields
profits. The returns it births are simple rewards for a job done or
service rendered. It is a calling that, unlike mercantile pursuits
which enjoy a greater deal of freedom from government
interference, is impressed with public interest, for which it is
subject to State regulation. 26
ACCORDINGLY, the instant petition for review is hereby
GRANTED and the
decision of respondent Court of Appeals of February 11, 1988
affirming the order of the trial court is hereby REVERSED and
SET ASIDE, without prejudice to such appropriate proceedings as
may be brought by private respondent to establish its right to
attorney's fees and the amount thereof.
SO ORDERED.
 (Metropolitan Bank and Trust Co. v. Court of Appeals, G.R. Nos.
|||

86100-03, [January 23, 1990], 260 PHIL 389-401)

SECOND DIVISION

[G.R. No. L-2662. March 26, 1949.]

SHIGENORI KURODA, petitioner, vs. Major General

RAFAEL JALANDONI, Brigadier General CALIXTO
DUQUE, Colonel MARGARITO TORALBA, Colonel
IRENEO BUENCONSEJO, Colonel PEDRO TABUENA,
Major FEDERICO ARANAS, MELVILLE S. HUSSEY and
ROBERT PORT, respondents.

Pedro Serran, Jose G. Lukban,  and  Liberato B. Cinco  for

petitioner.
Fred Ruiz Castro, Federico Arenas, Mariano Yengco, Jr.,
Ricardo A. Arcilla,  and  S. Meville Hussey  for respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; VALIDITY OF EXECUTIVE

ORDER NO. 68 ESTABLISHING A NATIONAL WAR CRIMES
OFFICE. — Executive Order No. 68 which was issued by the
President of the Philippines on the 29th day of July, 1947, is
valid in its section 3 that "The Philippines renounces war as an
instrument of national policy, and adopts the generally
accepted principles of international law as part of the law of
the nation."
2. INTERNATIONAL LAW; VIOLATORS OF THE LAWS AND
CUSTOMS OF WAR, OF HUMANITY AND CIVILIZATION,
LIABILITY AND RESPONSIBILITY OF. — In accordance with the
generally accepted principles of international law of the
present day, including the Hague Convention, the Geneva
Convention and significant precedents of international
jurisprudence established by the United Nations, all those
persons, military of civilian, who have been guilty of planning,
preparing or waging a war of aggression and of the
commission of crimes and offenses consequential and
incidental thereto, in violation of the laws and customs of war,
of humanity and civilization, are held accountable therefor.
3. ID.; POWER OF THE PRESIDENT OF THE PHILIPPINES.
— IN the promulgation and enforcement of Executive Order No.
68, the President of the Philippines has acted in conformity
with the generally accepted principles and policies and
international law which are part of our constitution.
4. CONSTITUTIONAL LAW; POWER OF PRESIDENT AS
COMMANDER IN CHIEF OR ARMED FORCES OF THE
PHILIPPINES. — The promulgation of said executive order is an
exercise by the President of his powers as Commander in
Chief of all our armed forces.
5. ID.; ID.; — The President as Commander in Chief is
fully empowered to consummate this unfinished aspects of
war, namely, the trial and punishment of war criminals,
through the issuance and enforcement of Executive Order No.
68.
6. INTERNATIONAL LAW; HAGUE AND GENEVA
CONVENTION FORM PART OF THE LAW OF THE PHILIPPINES;
EVEN IF THE PHILIPPINES WAS NOT SIGNATORY THEREOF,
PROVISIONS OF PHILIPPINE CONSTITUTION HAS BEEN
COMPREHENSIVE TO THAT EFFECT. — The rules and
regulations of the Hague and Geneva Conventions form part of
and are wholly based on the generally accepted principles of
international law. In fact, these rules and principles were
accepted by the two belligerent nations, the United States and
Japan, who were signatories to the two Conventions. Such
rules and principles, therefore, form part of the law of our
nation even if the Philippines was not a signatory to the
conventions embodying them, for our Constitution has been
deliberately general and extensive in its scope and is not
confined to the recognition of rules and principles of
international law as contained in treaties to which our
government may have been or shall be a signatory.
7. id.; rights and obligations of a nation were not erased
by assumption of full sovereignty RIGHT TO TRY AND PUNISH
CRIMES THERETOFORE COMMITTED. — When the crimes
charged against petitioner were allegedly committed, the
Philippines was under the sovereignty of the United States,
and thus we were equally bound together with the United
States and with Japan, to the rights and obligations contained
in the treaties between the belligerent countries. These rights
and obligations were not erased by our assumption of full
sovereignty. If at right, on our own, of trying and punishing
those who committed crimes against our people.
8. ID.; ID.; ID.; — War crimes committed against our
people and our government while we are a Commonwealth, are
triable and punishable by our present Republic.
9. MILITARY COMMISSION GOVERNED BY SPECIAL LAW.
— Military Commission is a special military tribunal governed
by a special law and not by the Rules of Court which govern
ordinary civil courts.
10. MILITARY COMMISSION; COUNSEL APPEARING
BEFORE IT NOT NECESSARILY A MEMBER OF THE PHILIPPINE
BAR. — There is nothing in Executive Order No. 68 which
requires that counsel appearing before said commission must
be attorneys qualified to practice law in the Philippines in
accordance with the Rules of Court. In fact, it is common in
military tribunals that counsel for the parties are usually
military personnel who are neither attorneys nor even
possessed of legal training.
11. ID.; TRIAL OF WAR CRIMES BEFORE PHILIPPINE
COURTS; ALLOWANCE OF AMERICAN ATTORNEYS TO
REPRESENT UNITED STATES. — The appointment of the two
American attorneys is not violative of our national sovereignty.
It is only fair and proper that the United States, which has
submitted the vindication of crimes against her government
and her people to a tribunal of our nation, should be allowed
representation in the trial of those very crimes. If there has
been any relinquishment of sovereignty, it has not been by our
government by the United States Government which has
yielded to us the trial and punishment of her enemies. The
least that we could do in the spirit of comity is to allow them
representation in said trials.
12. ID.; ID.; ID. — It is of common knowledge that the
United States and its people have been equally, if not more
greatly, aggrieved by the crimes with which petitioner stands
charged before the Military Commission. It can be considered
a privilege for our Republic that a leader nation should submit
the vindication of the honor of its citizens and its government
to a military tribunal of our country.
13. ID.; JURISDICTION; SUPREME COURT WILL NOT
INTERFERE WITH DUE PROCESSES OF MILITARY
COMMISSION. — The Military Commission having been
convened by virtue of a valid law, with jurisdiction over the
crimes charged which fall under the provisions of Executive
Order No. 68, and having jurisdiction over the person of the
petitioner by having said petitioner in its custody, this court
will not interfere with the due processes of such Military
Commission.
Per PERFECTO, J., dissenting:
14. ATTORNEYS AT LAW; ALIENS CANNOT PRACTICE
LAW. — It appearing that Attys. Hussey and Port are aliens and
have not been authorized by the Supreme Court to practice
law, they cannot appear as prosecutors in a case pending
before the War Crimes Commission.
15. CONSTITUTIONAL LAW; LEGISLATIVE POWER
VESTED IN CONGRESS; EXCEPTION. — While there is no
express provision in the fundamental law prohibiting the
exercise of legislative power by agencies other than Congress,
a reading of the whole context of the Constitution would
dispel any doubt as to the constitutional intent that the
legislative power is to be exercised exclusively by Congress,
subject only to the veto power of the President, to his to
suspend the writ of habeas corpus, to place any part of the
Philippines under martial law, to the rule-making power
expressly vested by the Constitution in the Supreme Court.
16. ID.; ID.; SCOPE OF POWERS OF DIFFERENT
GOVERNMENTAL DEPARTMENTS. — Because the powers
vested by our Constitution to the several departments of the
government are in the nature of grants, not a recognition of
pre-existing powers, no department of the government may
exercise any power or authority not expressly granted by the
Constitution or by law by virtue of express authority of the
Constitution.
17. ID.; ID.; POWER OF PRESIDENT TO PROMULGATE
EXECUTIVE ORDER DEFINING AND ALLOCATING
JURISDICTION FOR PROSECUTION OF WAR CRIMES ON
MILITARY COMMISSION. — The provision in Executive Order
No. 68 (series of 1947) of the President of the Philippines, that
persons accused as war criminals shall be tried by military
commission, is clearly legislative in nature and intends to
confer upon military commission jurisdiction to try all persons
charged with war crimes. But, the power to define and allocate
jurisdiction for the prosecution of persons accused of crimes
is exclusively vested by the Constitution in Congress.
18. ID.; ID.; POWER TO ESTABLISH GOVERNMENT
OFFICE. — Executive Order No. establishes a National War
Crimes Office; but, the power to establish government offices
is essentially legislative.
 19. ID.; RULE-MAKING POWER OF SUPREME COURT;
PRESIDENT HAS NO POWER, MUCH LESS DELEGATE SUCH A
POWER, TO PROVIDE RULES OF PROCEDURE FOR CONDUCT
OF TRIALS. — Executive Order No. 68 provides rules of
procedure for the conduct of trials before the War Crimes
Office. This provision on procedural subject constitutes a
usurpation of the rule-making power vested by
the Constitution in the Supreme Court. It further authorizes
military commissions to adopt additional rules of procedure. If
the President of the Philippines cannot exercise the rule
making power vested by the Constitution in the Supreme
Court, he cannot, with more reason, delegate that power to
military commissions.
20. ID.; LEGISLATIVE POWER VESTED IN CONGRESS;
USURPATION OF POWER TO APPROPRIATE FUNDS. —
Executive Order No. 68 appropriates funds for the expenses of
the National War Crimes Office. This constitutes another
usurpation of legislative power, as the power to vote
appropriations belongs to Congress.
21. ID.; EMERGENCY POWERS OF PRESIDENT UNDER
COMMONWEALTH ACTS NOS. 600, 620 AND 671. —
Commonwealth Acts Nos. 600, 620 and 671, granting the
President of the Philippines emergency powers to promulgate
rules and regulations during national emergency has ceased to
have effect since the liberation of the Philippines, or at latest,
upon the surrender of Japan on September 2, 1945. The
absurdity of the contention that these emergency acts
continued in effect even after the surrender of Japan cannot
be gainsaid. Only a few months after liberation, and even
before the surrender of Japan, the Congress started to
function normally. To let the hypothesis on continuance prevail
will result in the existence of two distinct, separate and
independent legislative organs. — the Congress and the
President of the Philippines. Should there be any disagreement
between Congress and the President, a possibility that no one
can dispute, the President may take advantage of the long
recess of Congress (two-thirds of every year) to repeal and
overrule legislative enactments of Congress, and may set up a
veritable system of dictatorship, absolutely repugnant to the
letter and spirit of the Constitution.
22. STATUTORY CONSTRUCTION; PRESUMPTION THAT
LEGISLATIVE BODY DID NOT INTEND TO
VIOLATE CONSTITUTION. — It has never been the purpose of
the National Assembly to extend the delegation (embodied in
Commonwealth Acts Nos. 600, 620 and 671) beyond the
emergency created by war, as to extent it farther would be
violate of the express provisions of the Constitution. We are of
the opinion that there is no doubt on this question; but, if there
could still be any, the same should be resolved in favor of the
presumption that the National Assembly did not intend to
violate the fundamental law.
23. CONSTITUTIONAL LAW; DUE PROCESS AND EQUAL
PROTECTION OF LAW. — Executive Order No. 68 violates the
fundamental guarantees of due process and equal protection
of the law, because it permits the admission of many kinds of
evidence by which no innocent person can afford to get
acquittal, and by which it is impossible to determine whether
an accused is guilt or not beyond all reasonable doubt.

DECISION

MORAN,  C. J  :p

Shigenori Kuroda, formerly a Lieutenant-General of the

Japanese Imperial Army and Commanding General of the
Japanese Imperial Forces in the Philippines during a period
covering 1943 and 1944, who is now charged before a Military
Commission convened by the Chief of Staff of the Armed
Forces of the Philippines, with having unlawfully disregarded
and failed "to discharge his duties as such commander to
control the operations of members of his command, permitting
them to commit brutal atrocities and other high crimes against
noncombatant civilians and prisoners of the Imperial Japanese
Forces, in violation of the laws and customs of war" — comes
before this Court seeking to establish the illegality of
Executive Order No. 68 of the President of the Philippines; to
enjoin and prohibit respondents Melville S. Hussey and Robert
Port from participating in the prosecution of petitioner's case
before the Military Commission; and to permanently prohibit
respondents from proceeding with the case of petitioner.
In support of his case, petitioner tenders the following
principal arguments:
First. — "That Executive Order No. 68 is illegal on the
ground that it violates not only the provisions of our
constitutional law but also our local laws, to say nothing of the
fact (that) the Philippines is not a signatory nor an adherent to
the Hague Convention on Rules and Regulations covering Land
Warfare and, therefore, petitioner is charged of 'crimes' not
based on law, national and international." Hence, petitioner
argues — "That in view of the fact that this commission has
been empanelled by virtue of an unconstitutional law and an
illegal order, this commission is without jurisdiction to try
herein petitioner."
Second. — That the participation in the prosecution of
the case against petitioner before the Commission in behalf of
the United States of America, of attorneys Melville Hussey and
Robert Port, who are not attorneys authorized by the Supreme
Court to practice law in the Philippines, is a diminution of our
personality as an independent state, and their appointments
as prosecutors are a violation of our Constitution for the
reason that they are not qualified to practice law in the
Philippines.
Third. — That Attorneys Hussey and Port have no
personality as prosecutors, the United States not being a party
in interest in the case.
Executive Order No. 68, establishing a National War
Crimes Office and prescribing rules and regulations governing
the trial of accused war criminals, was issued by the President
of the Philippines on the 29th day of July, 1947. This Court
holds that this order is valid and constitutional. Article 2
of our Constitution provides in its section 3, that —
"The Philippines renounces war as an instrument of
national policy, and adopts the generally accepted
principles of international law as part of the law of the
nation."
In accordance with the generally accepted principles of
international law of the present day, including the Hague
Convention, the Geneva Convention and significant precedents
of international jurisprudence established by the United
Nations, all those persons, military or civilian, who have been
guilty of planning, preparing or waging a war of aggression and
of the commission of crimes and offenses consequential and
incidental thereto, in violation of the laws and customs of war,
of humanity and civilization, are held accountable therefor.
Consequently, in the promulgation and enforcement of
Executive Order No. 68, the President of the Philippines has
acted in conformity with the generally accepted principles and
policies of international law which are part of our
Constitution.
The promulgation of said executive order is an exercise
by the President of his powers as Commander in Chief of all
our armed forces, as upheld by this Court in the case
of Yamashita vs. Styer L-129, 42 Off. Gaz., 654) 1 when we
said —
"War is not ended simply because hostilities have
ceased. After cessation of armed hostilities, incidents of
war may remain pending which should be disposed of as in
time of war. 'An important incident to a conduct of war is
the adoption of measures by the military command not
only to repel and defeat the enemies but to seize and
subject to disciplinary measures those enemies who in
their attempt to thwart or impede our military effort have
violated the law of war.' (Ex parte Quirin, 317 U. S., 1; 63
Sup. Ct., 2.) Indeed, the power to create a military
commission for the trial and punishment of war criminals
 is an aspect of waging war. And, in the language of a
writer, a military commission 'has jurisdiction so long as a
technical state of war continues. This includes the period
of an armistice, or military occupation, up to the effective
date of a treaty of peace, and may extend beyond, by
treaty agreement.' (Cowls, Trial of War Criminals by
Military Tribunals, American Bar Association Journal,
June, 1944.)"
Consequently, the President as Commander in Chief is
fully empowered to consummate this unfinished aspect of war,
namely, the trial and punishment of war criminals, through the
issuance and enforcement of Executive Order No. 68.
Petitioner argues that respondent Military Commission
has no jurisdiction to try petitioner for acts committed in
violation of the Hague Convention and the Geneva Convention
because the Philippines is not a signatory to the first and
signed the second only in 1947. It cannot be denied that the
rules and regulations of the Hague and Geneva conventions
form part of and are wholly based on the generally accepted
principles of international law. In fact, these rules and
principles were accepted by the two belligerent nations, the
United States and Japan, who were signatories to the two
Conventions. Such rules and principles, therefore, form part of
the law of our nation even if the Philippines was not a
signatory to the conventions embodying them, for our
Constitution has been deliberately general and extensive in
its scope and is not confined to the recognition of rules and
principles of international law as contained in treaties to
which our government may have been or shall be a signatory.
Furthermore, when the crimes charged against petitioner
were allegedly committed, the Philippines was under the
sovereignty of the United States, and thus we were equally
bound together with the United States and with Japan, to the
rights and obligations contained in the treaties between the
belligerent countries. These rights and obligations were not
erased by our assumption of full sovereignty. If at all, our
emergence as a free state entitles us to enforce the right, on
our own, of trying and punishing those who committed crimes
against our people. In this connection, it is well to remember
what we have said in the case of Laurel vs. Misa (76 Phil.,
372):
". . . The change of our form of government from
Commonwealth to Republic does not affect the
prosecution of those charged with the crime of treason
committed during the Commonwealth, because it is an
offense against the same government and the same
sovereign people . . . "
By the same token, war crimes committed against our people
and our government while we were a Commonwealth, are
triable and punishable by our present Republic.
Petitioner challenges the participation of two American
attorneys, namely, Melville S. Hussey and Robert Port, in the
prosecution of his case, on the ground that said attorneys are
not qualified to practice law in the Philippines in accordance
with our Rules of Court and the appointment of said attorneys
as prosecutors is violative of our national sovereignty.
In the first place, respondent Military Commission is a
special military tribunal governed by a special law and not by
the Rules of Court which govern ordinary civil courts. It has
already been shown that Executive Order No. 68 which
provides for the organization of such military commissions is a
valid and constitutional law. There is nothing in said executive
order which requires that counsel appearing before said
commissions must be attorneys qualified to practice law in the
Philippines in accordance with the Rules of Court. In fact, it is
common in military tribunals that counsel for the parties are
usually military personnel who are neither attorneys nor even
possessed of legal training.
Secondly, the appointment of the two American attorneys
is not violative of our national sovereignty. It is only fair and
proper that the United States, which has submitted the
vindication of crimes against her government and her people
to a tribunal of our nation, should be allowed representation in
 the trial of those very crimes. If there has been any
relinquishment of sovereignty, it has not been by our
government but by the United States Government which has
yielded to us the trial and punishment of her enemies. The
least that we could do in the spirit of comity is to allow them
representation in said trials.
Alleging that the United States is not a party in interest in
the case, petitioner challenges the personality of attorneys
Hussey and Port as prosecutors. It is of common knowledge
that the United States and its people have been equally, if not
more greatly, aggrieved by the crimes with which petitioner
stands charged before the Military Commission. It can be
considered a privilege for our Republic that a leader nation
should submit the vindication of the honor of its citizens and
its government to a military tribunal of our country.
The Military Commission having been convened by virtue
of a valid law, with jurisdiction over the crimes charged which
fall under the provisions of Executive Order No. 68, and having
jurisdiction over the person of the petitioner by having said
petitioner in its custody, this Court will not interfere with the
due processes of such Military Commission.
 (Shigenori Kuroda v. Jalandoni, G.R. No. L-2662, [March 26,
|||

1949], 83 PHIL 171-194)

EN BANC
 [G.R. No. L-38974. March 25, 1975.]

OMICO MINING AND INDUSTRIAL CORPORATION and

FREDERICK G. WEBBER, petitioners, vs.  JUDGE
AMADOR T. VALLEJOS, in his capacity as Judge of
the Court of First Instance of Cavite, ALFREDO
CATOLICO, and LEONARDO ALCID, in his capacity as
City Sheriff of Manila,  respondents.

Pio R. Marcos, Guillermo B. Bangonill & Jose P. Perez  for

petitioners.
Jose S. Lu  for respondent Alfredo Catolico.

SYNOPSIS

While petitioner's motion to dismiss the complaint filed by

then CFI Judge Catolico was pending resolution by the trial
court, the latter filed a petition to declare petitioners in default
alleging that seven months had lapsed since summons was
served on petitioners and that petitioners' motion was a
"useless piece of paper" as the notice of hearing was fatally
defective because it was addressed to the clerk of court. The
court granted the petition, received ex parte the evidence of
Catolico, rendered judgment thereon against petitioners, and
on motion of Catolico, directed the issuance of a writ of
execution. Petitioners filed their notice of appeal to the
Supreme Court after their motion for reconsideration was
denied; but, because of the impending execution of the
judgment by default, they filed the instant petition assailing
the order of default, the reception of evidence ex parte, and
the judgment by default as having been made with grave abuse
of discretion.
The Supreme Court ruled that the notice of hearing
addresses to the clerk of court stating the time and place of
hearing with a notation that a copy thereof has been sent
through registered mail to Catolico's counsel, who, as per
certification of the post office, actually received the notice
one day before the day set for the hearing of the motion, was
not defective; and because petitioners were incorrectly
declared in default while their motion to dismiss was still
pending resolution, the holding of the trial of the case on the
merits, in their absence, without notice to them of the date of
the hearing, was a denial of due process. Reiterating a
previous ruling, the Court further ruled that even if an appeal is
open to petitioners, certiorari is allowed where the appeal is
no longer an adequate and speedy remedy as the trial court
had already ordered the issuance of a writ of execution.
Petition granted.

SYLLABUS

1. MOTION TO DISMISS; NOTICE OF HEARING; NOTICE

ADDRESSED TO CLERK OF COURT NOT DEFECTIVE IF
PLAINTIFF SUFFICIENTLY NOTIFIED OF TIME AND PLACE OF
HEARING. — The notice of hearing in a motion to dismiss,
although addressed to the clerk of court and not to the party
concerned, is not fatally defective if it states the time and
place of hearing with a notation that a copy thereof had been
sent through registered mail to plaintiff's counsel, who, as per
certification of the post office, actually received the notice
one day before the day set for the hearing of the motion. What
is decisive is that plaintiff had sufficient notice of the time and
place of the hearing of the motion to dismiss. The attendance
of this circumstance "may be considered substantive enough
to truncate the adverse literal application of the pertinent
rules violated."
2. ID.; DENIAL; PERIOD FOR FILING RESPONSIVE
PLEADING COMPUTED FROM RECEIPT OF NOTICE OF DENIAL
OF MOTION. — Under Section 4 of Rule 16 of the Revised Rules
of Court, if the motion to dismiss is denied or if the
determination thereof is deferred, the movant shall file his
answer within the period prescribed by Rule 11, computed
from the time he received notice of the denial or deferment,
unless the court provides a different period. In other words,
the period for filing responsive pleading commences to run all
over again from the time the defendant received notice of the
denial or deferment of his motion to dismiss.
3. ID.; PENDENCY THEREOF PRECLUDES ENTRY OF
DEFAULT ORDER. — It is generally irregular to enter an order
of default while a motion to dismiss remains pending and
undisposed of. Thus, where defendants were incorrectly
declared in default while their motion to dismiss was still
pending resolution, the holding of the trial of the case on the
merits, in their absence, without due notice to them of the
date of the hearing, was a denial of due process.
4. JUDGES; OFFICIAL CONDUCT; CONDUCT MUST BE
FREE FROM APPEARANCE OF IMPROPRIETY. — The
ambivalence with which the respondent judge applied the
rules, being unduly strict with respect to defendants but
unduly liberal with respect to the plaintiff, falls short of the
requirement that the official conduct of a judge should not only
be free from impropriety, but also from the appearance of
impropriety.
5. ID.; PROHIBITIONS; JUDGES CANNOT ENGAGE IN
PRIVATE PRACTICE OF LAW; REASONS. — The contact of
professional services entered into between private respondent
and the petitioners, while the former was still a judge of the
Court of First Instance, constituted private practice of law and
in contravention of the express provision of Section 35 of Rule
138 of the Revised Rules of Court. The aforecited Rule was
promulgated by the Supreme Court pursuant to its
constitutional power to regulate the practice of law. It is
based on sound reasons of public policy, for there is no
question that the rights, duties, privileges and functions of the
office of an attorney-at-law are so inherently incompatible with
the high official functions, duties, powers, discretions and
privileges of a judge of the Court of First Instance.
 6. ID.; DUTIES; FULL TIME AND ATTENTION MUST BE
GIVEN TO JUDICIAL DUTIES. — The inhibitory rule embodied in
Section 35 of Rule 138 makes it obligatory upon the judicial
officers concerned to give their full time and attention to their
judicial duties, prevent them from extending special favors to
their own private interests and assure the public of their
impartiality in the performance of their functions. These
objectives are dictated by a sense of moral decency and the
desire to promote the public interest.
7. ID.; CONTRACTS; VOID CONTRACTS; CONTRACT FOR
PROFESSIONAL SERVICES BETWEEN JUDGE AND PRIVATE
CORPORATION, VOID. — A contract for professional services
entered into between a judge of the Court of First Instance and
a private corporation is void because a contract, whose cause,
object or purpose is contrary to law, morals, good customs,
public order or public policy, is considered inexistent and void
from the beginning.
8. SPECIAL CIVIL ACTIONS; CERTIORARI; REMEDY
AVAILABLE TO DEFENDANT ILLEGALLY DECLARED IN
DEFAULT. — A defendant who has been illegally declared in
default is not precluded from pursuing a more speedy and
efficacious remedy, like a petition for certiorari to have the
judgment by default set aside as nullity.
9. ID.; ID.; REMEDY MAY BE AVAILED OF IF APPEAL IS
NOT ADEQUATE. — The rule that certiorari does not lie when
there is an appeal is relaxed where, as in the instant case,
appeal is no longer adequate and speedy, as the trial court had
already ordered the issuance of a writ of execution.

DECISION

ANTONIO, J  : p

Original petition for certiorari and prohibition with writ of

preliminary injunction to set aside the orders and judgment
rendered by respondent Judge in Civil Case No. N-1963
(Alfredo Catolico v. Omico Mining and Industrial Corporation,
et al.) as having been made without or in excess of
jurisdiction, or with grave abuse of discretion.
I
FACTS
On June 1, 1973, Alfredo Catolico (herein private
respondent), then a judge of the Court of First Instance of
Cavite, filed with said court a complaint, docketed as Civil
Case No. N-1963 and assigned to Branch II presided by
respondent Judge Amador T. Vallejos, against Omico Mining
and Industrial Corporation and Frederick G. Webber, the latter
in his personal capacity and as President and Chairman of the
Board of Directors of said corporation, alleging two (2) causes
of action. The first, for the return of ten (10) certificates of
stock of the corporation borrowed from him by the defendants,
and the second, for the payment of his services as legal
counsel for the corporation. Under the first cause of action,
plaintiff Catolico alleged among others that he is a resident of
Cavite City where he is a judge of the Court of First Instance
and stockholder of the defendant Omico Mining and Industrial
Corporation holding thirty (30) certificates of stock duly paid
up bearing Nos. 13437 to 13466, the same having been issued
to him way back in August, 1969; that defendant corporation,
through its co-defendant Frederick G. Webber, pleaded with
him that ten (10) certificates of stock, Nos. 13437 to 13446, be
allowed to remain with them under their responsibility, jointly
and severally, for the specific purpose of using said
certificates as part collateral for a loan in the amount of
P10,000,000.00, the defendants were then negotiating with the
Development Bank of the Philippines, and that both
defendants, jointly and severally, promised to return said
certificates of stock upon the approval or disapproval of the
loan application; that when disapproval of said loan
application appeared imminent, the defendants again pleaded
with him for the retention of the same ten (10) certificates of
stock because they were negotiating for the purchase of the
Bunning and Company of Tuguegarao for P2,000,000.00, and
that they needed said certificates as part collateral for the
transaction; that when those two transactions failed, he
demanded several times of the defendants for the return to
him of the ten (10) certificates aforementioned so that he
could use them, but said demands were of no avail; that in
view of the failure of the defendants to comply with his
demands, he is forced to file the complaint seeking the return
to him of said ten (10) certificates of stock. Under the second
cause of action, plaintiff after reproducing the pertinent
averments in the first cause of action, among which is the
averment that he is a judge of the Court of First Instance of
Cavite, further alleged that on October 13, 1968, both
defendants entered into a contract of personal and
professional services with him under the terms of which he
was to head defendant corporation's legal department with the
condition that he should render such services only after his
office hours, "even into the dead wee hours of the night and
wherever such services would not run in conflict with his
duties as Judge"; that in consideration of such services, the
defendants undertook to pay him a yearly salary of P35,000.00
from the date of the contract, but where a case shall have
been settled in and out of court, and defendants shall have
won or saved money because of such settlement, he shall be
paid by way of commission ten percent (10%) of the amount
involved in the litigation and/or settlement; that, pursuant to
said contract, he has rendered legal services as head of the
legal department of defendant Omico and has attended to the
personal consultation of defendant Frederick G. Webber until
the filing of the complaint, when, by reason thereof, their
official relations were severed; that the defendants should
render the corresponding accounting of his unpaid commission
and salaries, taking into consideration the partial payments
and advances given to him as salary; that a more detailed
specification of the services rendered by him in favor of the
defendants were made in a letter to the defendants, mailed on
May 28, 1973 from his official residence in Cavite City; that the
defendants refused and failed to render such accounting and
to pay his emoluments, in spite of his repeated demands to
that effect. Plaintiff, therefore, prayed that, on the first cause
of action, defendants be ordered to return to him the ten (10)
certificates of stock, or, in case the return thereof cannot be
done, to issue in his favor the same number and amount of
certificates of stock as replacement or to pay him the par
value thereof; and, on the second cause of action, defendants
be ordered to render the corresponding accounting of the
amounts due him in accordance with the averments in the
complaint, and to pay him the balance as reflected in the
accounting as approved by the court; to pay him moral,
exemplary, punitive and afflictive damages, in such amounts
as assessed by the court; to pay him attorney's fees and costs;
and to grant him such other reliefs available in the premises. 1
Served with the corresponding summons and copies of
the complaint, the petitioners, as defendants therein, on June
10, 1973 filed a motion to dismiss the complaint on two
grounds, namely: (1) improper venue, in that the case was filed
in Cavite where plaintiff is not a resident, the truth being that
he is a resident of Quezon City where he has his permanent
family home; and, as to the second cause of action, the
contract of personal and professional services between
plaintiff and defendants was entered into in the City of Manila,
and, therefore, the case should have been filed in Manila in
accordance with Section 1 of Rule 4 of the Revised Rules of
Court; and (2) lack of cause of action, in that with regard to
the stock certificates, the same are in the name of Vicente
Resonda; and, with respect to the contract of personal and
professional services wherein it was agreed that the plaintiff
shall head the legal department of defendant Omico Mining &
Industrial Corporation, the same is illegal, void and
unenforceable, plaintiff being a judge of the Court of First
Instance who is prohibited by Section 35 of Rule 138 of the
Revised Rules of Court from engaging in private practice as a
member of the Bar. The motion to dismiss contains the
following notice of hearing:
"The Clerk of Court
Court of First Instance of Cavite City
Branch II
Greetings:
Please include the foregoing motion in the calendar
of the Honorable Court on Saturday, June 16, 1973, and
have the same submitted for resolution without further
arguments on the part of the defendants.
(Sgd.) JOSE F. PEREZ
COPY FURNISHED:
(By registered Mail)
Atty. Jaime B. Lumasag,
Counsel for the Plaintiff,
5-C Banawe, Quezon City"

Attached to the motion is Registry Receipt No. 45297

issued by Manila Central Post Office on June 9, 1973. 2
On June 16, 1973, the date set for the hearing of the
motion to dismiss, neither the parties nor their respective
counsels appeared in court. But the court, noting that there
was no clear showing in the record that notice of hearing of
said motion had been served upon counsel for the plaintiff,
issued on June 18, 1973 an Order postponing consideration of
the motion "until counsel for the defendants shall have shown
to the satisfaction of the Court that a copy of his motion to
dismiss has been furnished counsel for the plaintiff." The Order
adds that "in said event, the Clerk of Court shall calendar
anew the hearing of the motion to dismiss furnishing a copy of
the date of the hearing to counsels for the plaintiff and for the
defendants." 3 Copies of said Order were sent to the
respective counsels of the parties on June 10, 1973 by
registered mail. 4
While the motion to dismiss was pending resolution by
the court because defendants had not yet presented to the
court the required proof of service, plaintiff, on January 11,
1974, filed a petition to declare the defendants in default and
to allow him to present his evidence ex parte. In said petition,
plaintiff alleged, in substance, that defendants had been
served with summons and copies of the complaint on June 8,
1973; that as of January 11, 1974, or after a lapse of seven (7)
months from the service of summons, defendants had not filed
their answer to the complaint; that the defendants had filed a
motion to dismiss the complaint on June 10, 1973, the hearing
of which had been set to June 16, 1973 but the notice of said
hearing was addressed to the Clerk of Court, not to Atty.
Jaime B. Lumasag, counsel for plaintiff; that the Revised Rules
of Court provides that petitions and motions should be sent to
opposing parties who should be notified of the date of the
hearing thereof; that the notice of hearing in defendants'
motion to dismiss is fatally defective, it being addressed to the
Clerk of Court; and that because of that defect, defendants'
motion to dismiss is a "useless piece of paper",
citing Philippine Advertising Counselors, Inc. v. Hon. Pedro A.
Revilla, G. R. No. L-31869, promulgated on August 8,
1973. 5 By Order of January 15, 1974, the court granted the
petition 6 and, consequently, it received ex parte the
evidence of the plaintiff and rendered judgment thereon on
January 29, 1974, the dispositive portion of which reads:
"WHEREFORE, judgment is hereby rendered in favor
of the plaintiff and against the defendants directing the
latter:
"1. To return to the plaintiff ten (10) certificates of
stock corresponding to 100,000 shares of
the Omico Mining and Industrial Corporation in the name
of Vicente Resonda bearing Nos. 13437 up to and
including 13446 or in lieu thereof, to deliver to said
plaintiff new certificates of the above-named corporation
of equivalent value;
"2. To pay to the plaintiff the total amount of One
Million One Hundred Eighty-six Thousand Four Hundred
 Thirty-five Pesos and Eleven Centavos (P1,186,435.11) at
the legal rate of interest until said amount is fully paid;
"3. To pay to the plaintiff by way of attorney's fees
the amount of Ten Thousand Pesos (P10,000.00);
"4. To pay the costs." 7

On March 5, 1974, defendants filed a motion for

reconsideration, advancing the arguments (1) that the
judgment is contrary to law and the liberal interpretation of
the Revised Rules of Court, in that they have complied with the
provisions of Section 10 of Rule 13, Revised Rules of Court, by
stating in the motion to dismiss that a copy thereof was
furnished by registered mail to Atty. Jaime B. Lumasag,
counsel for the plaintiff, and attaching thereto the registry
receipt therefor issued by the Manila Central Post Office; that
the purpose of the notice has been served because as per
certification of the post office of Quezon City, said Atty. Jaime
B. Lumasag received the copy of the Motion to Dismiss before
June 16, 1973, the date set for the hearing of the motion; and
that, with respect to the return card, they have not received
the same, hence, they could not comply with the submission
thereof; (2) that the circumstances obtaining in the case do
not warrant the default order which finally paved the way for
the rendering of judgment in favor of the plaintiff, because
counsel for the plaintiff had received a copy of the motion to
dismiss one day before the hearing thereof; that said motion
should have been acted upon, considering that it contains
contentious issues which when resolved would show the
complaint to be "nothing but empty claims"; and that the ruling
in Philippine Advertising Counselors, Inc. cannot apply,
because the facts therein are at variance with those of the
present case; and (3) that the defendants have a valid defense
and strong evidence to rebut and/or controvert the claims of
the plaintiff as shown by the affidavits of Jose F. Perez and
Hilarion P. Dugenio, legal counsel and corporate secretary,
respectively, of Omico Mining and Industrial Corporation. The
motion contains a notice to counsel for plaintiff that the
hearing thereof has been set for March 15, 1974. 8
On March 15, 1974, plaintiff Catolico, on his own behalf,
filed a motion to postpone hearing of the motion for
reconsideration to April 29, 1974, to enable him to prepare an
intelligible opposition thereto. The motion does not contain a
notice of hearing. It merely states at the foot thereof that a
copy of said motion was furnished Pio R. Marcos and Guillermo
Bandonil, counsel for defendants, without stating how delivery
was effected. 9 But notwithstanding absence of notice of
hearing, the court, considering the absence of objection
thereto on the part of the defendants, granted the motion for
postponement, with the condition that the defendants be
furnished with a copy of the opposition; that defendants may
file their reply to the opposition within fifteen (15) days from
receipt of a copy thereof; and that thereafter the matter be
deemed submitted for resolution. 10
On May 31, 1974, while defendants' motion for
reconsideration was still pending before the court because the
defendants had not filed yet their reply to the opposition as
they had not received a copy thereof, 11 plaintiff Catolico filed
a motion for immediate execution of judgment, alleging,
among other things, that said judgment had already become
final and executory because the defendants failed to have the
order of default lifted; that the motion for reconsideration was
filed out of time; that there was a "manifest attempt on the
part of the defendants to delay the proceedings to afford them
an opportunity to have all their assets and shares dissipated
by continuous sale of the same to the prejudice" not only of
respondent Catolico but also of "some forty to fifty creditors
who filed complaints against the defendants for estafa and
civil suits for collection amounting to hundreds of thousands of
pesos"; that some 80% of defendants' assets and properties
had already been sold at fantastically low prices to defraud
creditors who had been deceitfully assured by the
management that they are well protected; that the judgment
might become ineffective "due to the notoriously deceptive
movements" (sic) to which the defendants "daily and
continuously expose themselves"; and that immediate
execution of the judgment is the only protection that can be
rendered to plaintiff under the premises. 12
On June 18, 1974, the Court issued simultaneously two
(2) Orders, one denying defendants' motion for
reconsideration, 13 and the other directing the issuance of a
writ of execution of its decision of January 29, 1974. In the
latter Order, the court appointed the City Sheriff of Manila,
herein respondent Leonardo Alcid, to execute said writ of
execution. 14
On June 19, 1974, defendants filed their notice of appeal
to this Court, an appeal bond and a record on appeal. The
record on appeal was approved on August 27, 1974 only
because of the absence of the respondent Judge from his
station, he being then a participant in the seminar of Judges of
Court of First Instance in the Development Academy of the
Philippines at Tagaytay City. 15
On the same date, June 19, 1974, in the afternoon,
respondent Sheriff of Manila, through his Senior Legal
Assistant and Acting Executive Sheriff Dominador Q. Cacpal,
served a notice of garnishment to the defendants, together
with a writ of execution issued by the respondent Judge. On
July 22, Pio R. Marcos, as President and Chairman of the Board
of Directors of defendant Omico Mining and Industrial
Corporation, wrote a letter to respondent Sheriff asking that
the defendants be given a little chance to exhaust the legal
remedies available to hold in abeyance the execution and
garnishment. Among the reasons presented by Marcos are that
defendants were not given a chance to have their day in court
in the motion for immediate execution of judgment and that
they have already appealed from the lower court's decision
and order of immediate execution. 16
Because of the impending execution of the judgment by
default which they believe to be illegal, defendants, on July 25,
1974, filed with this Court the instant petition praying, among
other things, that respondent Judge be restrained from
commanding the City Sheriff of Manila, or his duly authorized
representative, to execute the decision of January 29, 1974.
The petition assails mainly the Order of respondent Judge,
declaring the defendants in default, the consequent reception
of the evidence of the plaintiff ex parte and the judgment by
default rendered thereon, as having been made without or in
excess of jurisdiction, or with grave abuse of discretion
because said respondent Judge failed to resolve first the
defendants' motion to dismiss. In a resolution dated July 24,
1974, We required, without giving due course to the petition,
respondents to comment on said petition within ten (10) days
from notice thereof, and, as prayed for, issued a temporary
restraining order.
Respondent Judge and private respondent Catolico filed
separate comments. Per resolution dated August 20, 1974, We
resolved to consider their comments as their Answer to the
petition.
In his answer, respondent Judge justifies his failure to
act on the aforesaid motion to dismiss the complaint in this
wise:
"In insisting in their petition that it was obligatory for
this respondent to grant or deny said motion to dismiss,
counsels who filed this petition seem to be feigning
ignorance as to reasons why this respondent chose to
ignore their motion to dismiss and considered it a mere
scrap of paper. It is humbly submitted that said reasons
have been amply set forth and discussed in the Decision
rendered in Civil Case No. N-1963 (Annex F to the petition)
in accordance with the decision of this Honorable Tribunal
in the case of Philippine Advertising Counselors,
Inc., versus Hon. Pedro Revilla, et al., G.R. No. L-31869),
to this effect:
'Finally, Section 4, Rule 15 of the Rules of Court
provides that notice of a motion shall be served by
the applicant to all parties concerned, at least three
 days before the hearing thereof, together with a copy
of the motion, and of any affidavits and other papers
accompanying it, and Section 5 of the same rule
requires the motion to be directed to the parties
concerned and to state the time and place for the
hearing of the motion. A motion which fails to
comply with these requirements is nothing but a
useless piece of paper . . .'" (Emphasis supplied).
"Counsels who filed the instant petition know more
than anybody else that their motion to dismiss did not
comply with the standards required in the decision above
quoted for it was addressed to the Clerk of Court and not
to the party concerned. As such, said motion to dismiss
was but 'a useless piece of paper' without any legal
standing, and, therefore, could neither be granted nor
denied, by this respondent. . . "

Subsequently, or on September 6, 1974, private

respondent filed a motion to dismiss said petition on the
ground that the remedy of certiorari and prohibition is no
longer available to the herein petitioners, inasmuch as they
had already perfected their appeal. 17 Petitioners opposed the
motion to dismiss on the ground that their appeal is
inadequate to protect their rights for, without the restraining
order issued by this Court, the respondents could have
executed the decision and orders in question. 18
II
ISSUES
The first issue to be resolved here is whether the
respondent Judge acted without or in excess of jurisdiction or
with grave abuse of discretion in declaring the defendants in
default, in receiving plaintiff's evidence ex parte and in
rendering judgment thereon.
The second is whether ordinary appeal, not certiorari and
prohibition, is the proper remedy available to petitioners.
III
 1. With regard to the first issue, respondents contend
that the motion to dismiss the complaint is a "useless piece of
paper" because the notice of hearing incorporated therein is
addressed to the Clerk of Court, not to the party concerned,
that is, the plaintiff or his counsel, as required by the rules. We
do not agree. As copied verbatim above, the notice of hearing
states the time and place of hearing, and a copy thereof was
sent through registered mail seven (7) days before the date set
for the hearing of the motion but actually received by plaintiff's
counsel one (1) day before said date, as per certification of the
Quezon City Post Office.
To Our mind, what is decisive here is that plaintiff had
sufficient notice of the time and place of the hearing of the
motion to dismiss. We have said in Manila Surety and Fidelity
Co., Inc.  v. Bath Construction and Company,  19 "unless the
movant sets the time and place of hearing the court would
have no way to determine whether that party agrees to or
objects to the motion, and if he objects, to hear him on his
objection, since the Rules themselves do not fix any period
within which he may file his reply or opposition." In
the Matusa case, We said that granting that the notice is
defective for failure to specify the exact date when the motion
to dismiss should be heard, the Court, in taking cognizance of
the motion on the date set for the hearing thereof, cured
whatever iota of defect such a pleading may have had,
especially if it is taken into account that upon receipt of the
motion to dismiss, plaintiff was properly notified of the
existence of said pleading. 20 Indeed, We declared that there
may be cases where the attendance of certain circumstances
"may be considered substantive enough to truncate the
adverse literal application of the pertinent rules
violated." 21 The case at bar is such an instance, because
private respondent had sufficient notice of the place, time and
date when the motion to dismiss was to be heard.
It is, therefore, evident from the foregoing that the
respondent Judge acted with grave abuse of discretion when
he declared the petitioners in default. The motion to dismiss
was pending before the court when such declaration was
made, and it is generally irregular to enter an order of default
while a motion to dismiss remains pending and undisposed
of. 22 The irregularity of the order of default is evident from
the fact that when the petitioners were declared in default,
their time for filing an answer had not yet commenced to run
anew because on said date, their counsel had not yet received
any notice of the action taken by the court on their motion to
dismiss. Under Section 4 of Rule 16 of the Revised Rules of
Court, if the motion to dismiss is denied or if the determination
thereof is deferred, the movant shall file his answer within the
period prescribed by Rule 11, computed from the time he
received notice of the denial or deferment, unless the court
provides a different period. In other words, the period for filing
responsive pleading commences to run all over again from the
time the defendant receives notice of the denial or deferment
of his motion to dismiss. Inasmuch as petitioners were
declared in default while their motion to dismiss was still
pending resolution, they were, therefore, incorrectly declared
in default, and the holding of the trial of the case on the
merits, in their absence, without due notice to them of the
date of hearing, was a denial of due process. 23 Consequently,
the order of default, the judgment and the order of execution
are patent nullities.
In connection with the foregoing, We notice the
ambivalence with which the respondent Judge applied the
rules. Thus, while he was unduly strict regarding the
requirements of notice of hearing to the defendants, he was, at
the same time, unduly liberal, with respect to the plaintiff. For
instance, plaintiff's motion for postponement of the hearing of
defendants' Motion for Reconsideration did not contain any
notice of hearing, or proof of service of the notice thereof, or
even the address of the plaintiff who signed personally said
motion. Notwithstanding the absence of these data,
respondent Judge readily granted the motion. Then there is
plaintiff's motion for immediate execution of judgment pending
appeal. Although it was apparent that a copy of said motion
could not have been received by the counsel for the
defendants at their office in Baguio City prior to the date of the
hearing on June 3, 1974, considering that it was only on May
29, 1974 when a copy of said motion was allegedly posted by
registered mail at the Manila Post Office, respondent Judge
did not require, as he did with respect to defendants' motion to
dismiss, proof of service of the notice thereof. Such conduct
falls short of the requirement that the official conduct of a
judge should not only be free from impropriety, but also from
the appearance of impropriety.
2. There is, moreover, the consideration that the
challenged judgment seeks to enforce a contract which is
patently void because it is contrary to law and public policy.
The contract of professional services entered into between
private respondent and the petitioners, while the former was
still a judge of the Court of First Instance, constituted private
practice of law and in contravention of the express provision
of Section 35 of Rule 138 of the Revised Rules of Court. The
aforecited Rule was promulgated by this Court, pursuant to its
constitutional power to regulate the practice of law. It is
based on sound reasons of public policy, for there is no
question that the rights, duties, privileges and functions of the
office of an attorney-at-law are so inherently incompatible with
the high official functions, duties, powers, discretions and
privileges of a judge of the Court of First Instance. 24 This
inhibitory rule makes it obligatory upon the judicial officers
concerned to give their full time and attention to their judicial
duties, prevent them from extending special favors to their
own private interests and assure the public of their
impartiality in the performance of their functions. These
objectives are dictated by a sense of moral decency and the
desire to promote the public interest.
Private respondent should have known or ought to know,
that when he was elevated to the Bench of the Court of First
Instance as a judge thereof, his right to practice law as an
attorney was suspended and continued to be suspended as
long as he occupied the judicial position. 25
It is evident, therefore, that the aforesaid contract is void
because a contract, whose cause, object or purpose is
contrary to law, morals, good customs, public order or public
policy, is considered inexistent and void from the beginning. 26
3. On the question of the remedy availed of by
petitioners, respondents maintain that where appeal is
available, as it has been shown to be available to the
petitioners when they perfected their appeal in Civil Case No.
N-1963, the remedy of certiorari and/or prohibition cannot be
resorted to. In resolving this question, We advert to Our ruling
in Matute  v. Court of Appeals, supra, where We stated:
"In opposing the instant petition, the plaintiff-
respondent contends that the remedy of the defendant
petitioner is not a petition for certiorari but an ordinary
appeal pursuant to Rule 41, Section 2, paragraph 3 which
reads:
"A party who has been declared in default may
likewise appeal from the judgment rendered against
him as contrary to the evidence or to the law, even if
no petition for relief to set aside the order of default
has been presented by him in accordance with Rule
38.'
"We do not agree. The remedy provided for in the
above-quoted rule is properly, though not exclusively,
available to a defendant who has been validly declared in
default. It does not preclude a defendant who has
been illegally declared in default from pursuing a more
speedy and efficacious remedy, like a petition for
certiorari to have the judgment by default set aside as a
nullity.
"It should be emphasized that a defendant who is
properly declared in default is differently situated from
one who is improvidently declared in default. The former
irreparably loses his right to participate in the trial, while
the latter retains such a right and may exercise the same
 after having the order of default and the subsequent
judgment by default annulled and the case remanded to
the court of origin. Moreover the former is limited to the
remedy set forth in section 2, paragraph 3 of Rule 41 by
virtue of which he can contest only the judgment by
default on the designated ground that it is contrary to the
evidence or the law; the latter, however, has the option to
avail of the same remedy or to forthwith interpose a
petition for certiorari seeking the nullification of the order
of default even before the promulgation of a judgment by
default, or in the event that the latter has been rendered,
to have both court decrees — the order of default and the
judgment by default — declared void. The defendant-
petitioner's choice of the latter course of action is correct
for he controverts the judgment by default not on the
ground that it is not supported by evidence or it is
contrary to law, but on the ground that it is intrinsically
void for having been rendered pursuant to a patently
invalid order of default.
"Granting however, that an appeal is open to the
defendant-petitioner, the same is no longer an adequate
and speedy remedy considering that the court a quo had
already ordered the issuance of a writ of execution and
the carrying out of such writ loomed as a great probability.
This is in consonance with the doctrine enunciated in Vda.
de Saludes v. Pajarillo and Bautista (78 Phil. 754) wherein
this Court held that an 'appeal under the circumstances
was not an adequate remedy there being an order or
execution issued by the municipal court.' Hence, the rule
that certiorari does not lie when there is an appeal is
relaxed where, as in the instant case, the trial court had
already ordered the issuance of a writ of execution."

The above ruling applies with cogent force in the present

case.
WHEREFORE, certiorari is granted and the default order,
judgment and writ of execution rendered by the respondent
Judge in Civil Case No. N-1963 are hereby set aside, and the
respondent Judge is ordered to hear and decide the motion to
 dismiss the complaint, taking into account Our foregoing
opinion. The temporary restraining order is made permanent,
with costs against private respondent.
Makalintal, C. J., Fernando, Teehankee, Barredo,
Makasiar, Esguerra, Fernandez and Aquino, JJ., concur.
 (Omico Mining and Industrial Corp. v. Vallejos, G.R. No. L-
|||

38974, [March 25, 1975], 159 PHIL 886-904)