1. Surigao mineral reservation board vs cloribel 31 scra 1 …docshare01.docshare.tips/files/21606/216069411.pdf · 2016-12-11 · 1. Surigao mineral reservation board vs cloribel

1. Surigao mineral reservation board vs cloribel 31 scra 1

G.R. No. L-27072 January 9, 1970

SURIGAO MINERAL RESERVATION BOARD, ET AL., petitioners, vs.HON. GAUDENCIO CLORIBEL ETC., ET AL., respondents, In Re: Contempt Proceedings Against Attorneys Vicente L. Santiago, Jose Beltran Sotto, Graciano C. Regala and Associates, Erlito R. Uy, Juanito M. Caling; and Morton F. Meads.

R E S O L U T I O N

SANCHEZ, J.:

After the July 31, 1968 decision of this Court adverse to respondent MacArthur International Minerals Co., the Solicitor General brought to our attention statements of record purportedly made by Vicente L. Santiago, Erlito R. Uy, Graciano Regala, and Jose Beltran Sotto, members of the Bar, with the suggestion that disciplinary action be taken against them. On November 21, 1968, this Court issued a show-cause order.

The following statements, so the Solicitor General avers, are set forth in the memoranda personally signed by Atty. Jose Beltran Sotto:

a. They (petitioners, including the Executive Secretary) have made these false, ridiculous and wild statements in a desperate attempt to prejudice the courts against MacArthur International. Such efforts could be accurately called "scattershot desperation" (Memorandum for Respondents dated March 27, 1968, pp. 13-14, three lines from the bottom of page 13 and first line page 14).

b. Such a proposition is corrupt on its face and it lays bare the immoral and arrogant attitude of the petitioners. (Respondents' Supplemental Memorandum and Reply to Petitioner's Memorandum Brief, dated April 13, 1968, p. 16, last two lines on bottom of the page).

c. The herein petitioners ... opportunistically change their claims and stories not only from case to case but from pleading to pleading in the same case. (Respondents' Supplemental Memorandum,Ibid., p.17, sixth, seventh and eighth lines from bottom of the page).

MacArthur's third motion for reconsideration signed by Atty. Vicente L. Santiago, on his behalf and purportedly for Attys. Erlito R. Uy, Graciano Regala and Associates, and Jose B. Sotto, the Solicitor General points out, contain the following statements:

d. ... ; and [the Supreme Court] has overlooked the applicable law due to the misrepresentation and obfuscation of the petitioners' counsel. (Last sentence, par. 1, Third Motion for Reconsideration dated Sept. 10, 1968).

e. ... Never has any civilized, democratic tribunal ruled that such a gimmick (referring to the "right to reject any and all bids") can be used by vulturous executives to cover up and excuse losses to the public, a government agency or just plain fraud ... and it is thus difficult, in the light of our upbringing and schooling, even under many of the incumbent justices, that the Honorable Supreme Court intends to create a decision that in effect does precisely that in a most absolute manner. (Second sentence, par. 7, Third Motion for Reconsideration dated Sept. 10, 1968).

The motion to inhibit filed on September 21, 1968 — after judgment herein was rendered — and signed by Vicente L. Santiago for himself and allegedly for Attys. Erlito R. Uy, and Graciano Regala and Associates, asked Mr. Chief Justice Roberto Concepcion and Mr. Justice Fred Ruiz Castro to inhibit themselves from considering, judging and resolving the case or any issue or aspect thereof retroactive to January 11, 1967. The motion charges "[t]hat the brother of the Honorable Associate Justice Castro is a vice-president of the favored party who is the chief beneficiary of the false, erroneous and illegal decision dated January 31, 1968" and the ex parte preliminary injunction rendered in the above-entitled case, the latter in effect prejudging and predetermining this case even before the joining of an issue. As to the Chief Justice, the motion states "[t]hat the son of the Honorable Chief Justice Roberto Concepcion was given a significant appointment in the Philippine Government by the President a short time before the decision of July 31, 1968 was rendered in this case." The appointment referred to was as secretary of the newly-created Board of Investments. The motion presents a lengthy discourse on judicial ethics, and makes a number of side comments projecting what is claimed to be the patent wrongfulness of the July 31, 1968 decision. It enumerates "incidents" which, according to the motion, brought about respondent MacArthur's belief that "unjudicial prejudice" had been caused it and that there was "unjudicial favoritism" in favor of "petitioners, their appointing authority and a favored party directly benefited by the said decision." The "incidents" cited are as follows:

(a) said decision is in violation of the law, which law has not been declared unconstitutional.

(b) said decision ignores totally the applicable law in the above-entitled case.

(c) said decision deprives respondent of due process of law and the right to adduce evidence as is the procedure in all previous cases of this nature.

(d) due course was given to the unfounded certiorari in the first place when the appeal from a denial of a motion to dismiss was and is neither new nor novel nor capable of leading to a wholesome development of the law but — only served to delay respondent for the benefit of the favored party.

(e) the preliminary injunction issued herein did not maintain the status quo but destroyed it, and the conclusion cannot be avoided that it was destroyed for a reason, not for no reason at all.

(f) there are misstatements and misrepresentations in the said decision which the Honorable Supreme Court has refused to correct.

(g) the two main issues in the said decision were decided otherwise in previous decisions, and the main issue "right to reject any or all bids" is being treated on a double standard basis by the Honorable Supreme Court.

(h) the fact that respondent believes that the Honorable Supreme Court knows better and has greater understanding than the said decision manifests.

(i) the public losses (sic) one hundred and fifty to two hundred million dollars by said decision — without an effort by the Honorable Supreme Court to learn all the facts through presentation through the trial court, which is elementary.

On November 21, 1968, Atty. Vicente L. Santiago, again for himself and Attys. Erlito R. Uy and Graciano Regala and Associates, in writing pointed out to this Court that the statements specified by the Solicitor General were either quoted out of context, could be defended, or were comments legitimate and justifiable. Concern he expressed for the fullest defense of the interests of his clients. It was stressed that if MacArthur's attorney could not plead such thoughts, his client would be deprived of due process of law. However, counsel sought to change the words "Chief Justice" to "Supreme Court" appearing on line 7, paragraph 2 of the motion to inhibit. Atty. Santiago also voluntarily deleted paragraph 6 of the said motion, which in full reads:

6. Unfortunately for our people, it seems that many of our judicial authorities believe that they are the chosen messengers of God in all matters that come before them, and that no matter what the circumstances are, their judgment is truly ordained by the Almighty unto eternity. Some seem to be constitutionally incapable of considering that any emanation from their mind or pen could be the product of unjudicial prejudice or unjudicial sympathy or favoritism for a party or an issue. Witness the recent absurdity of Judge Alikpala daring to proceed to judge a motion to hold himself in contempt of court — seemingly totally oblivious or uncomprehending of the violation of moral principle involved — and also of Judge Geraldez who refuses to inhibit himself in judging a criminal case against an accused who is also his correspondent in two other cases. What is the explanation for such mentality? Is it outright dishonesty? Lack of intelligence? Serious deficiency in moral comprehension? Or is it that many of our government officials are just amoral?

And, in addition, he attempted to explain further subparagraphs (f) and (h) of paragraph 7 thereof.

It was on December 2, 1968 that Atty. Vicente L. Santiago filed his compliance with this Court's resolution of November 21, 1968. He there stated that the motion to inhibit and third motion for reconsideration were of his exclusive making and that he alone should be held responsible therefor. He further elaborated on his explanations made on November 21, 1968.

On December 5, 1968, he supplemented his explanations by saying that he already deleted paragraph 6 of the Motion to Inhibit heretofore quoted from his rough draft but that it was still included through inadvertence.

On March 1, 1969, Atty. Vicente L. Santiago, as counsel for MacArthur, registered an amended motion to inhibit. While it repeats the prayer that Mr. Chief Justice Concepcion and Mr. Justice

Castro inhibit themselves, it left but three paragraphs of the original motion to inhibit, taking out the dissertation on judicial ethics and most of the comments attacking the decision of this Court of July 31, 1968.

On the part of Atty. Jose Beltran Sotto, it must be stated that as early as October 7, 1968, he insisted in withdrawing his appearance in this case as one of the lawyers of MacArthur. His ground was that he did not agree with the filing of the motion to inhibit the two justices. According to him, "[t]he present steps (sic) now being taken is against counsel's upbringing and judicial conscience."

In Atty. Jose Beltran Sotto's return of November 29, 1968, he took pains to say that the questioned statements he made were also taken out of context and were necessary for the defense of his client MacArthur. He made the admission, though, that those statements lifted out of context would indeed be sufficient basis for a finding that Section 20(f), Rule 138, had been violated.

On January 8, 1969, additional arguments were filed by Atty. Jose Beltran Sotto. He there averred that the Supreme Court had no original jurisdiction over the charge against him because it is one of civil contempt against a party and the charge is originally cognizable by the Court of First Instance under Sections 4 and 10, Rule 71 of the Rules of Court. He also stressed that said charge was not signed by an "offended party or witness", as required by law; and that the Solicitor General and his assistants could not stand in the stead of an "offended Party or witness."

We now come to Atty. Graciano C. Regala. In his explanation of December 2, 1968, as further clarified by a supplemental motion of December 27, 1968, he manifested that the use of or reference to his law firm in this case was neither authorized nor consented to by him or any of his associates; that on July 14, 1967, one Morton F. Meads, in MacArthur's behalf, offered to retain his services, which was accepted; that Meads inquired from him whether he could appear in this case; that he advised Meads that this case was outside his professional competence and referred Meads to another lawyer who later on likewise turned down the offer; that in view of the rejection, Meads and he agreed to terminate their previous retainer agreement; that he had not participated in any manner in the preparation or authorship of any pleading or any other document in connection with this case.

On February 4, 1969, Atty. Erlito R. Uy explained his side of the case. In brief, he denied participation in any of the court papers subject of our November 21, 1968 order; claimed that he was on six months' leave of absence from July 1, 1968 to December 31, 1968 as one of the attorneys for MacArthur but that he gave his permission to have his name included as counsel in all of MacArthur's pleadings in this case (L-27072), even while he was on leave of absence.

Hearing on this contempt incident was had on March 3, 1969.

A second contempt proceeding arose when, on July 14, 1969, respondent MacArthur, through new counsel, Atty. Juanito M. Caling who entered a special appearance for the purpose, lodged a fourth motion for reconsideration without express leave of court. Said motion reiterated previous grounds raised, and contained the following paragraphs:

4. The said decision is illegal because it was penned by the Honorable Chief Justice Roberto Concepcion when in fact he was outside the borders of the

Republic of the Philippines at the time of the Oral Argument of the above-entitled case — which condition is prohibited by the New Rules of Court — Section 1, Rule 51, and we quote: "Justices; who may take part. — ... . only those members present when any matter is submitted for oral argument will take part in its consideration and adjudication ..." This requirement is especially significant in the present instance because the member who penned the decision was the very member who was absent for approximately four months or more. This provision also applies to the Honorable Justices Claudio Teehankee and Antonio Barredo.

xxx xxx xxx

6. That if the respondent MacArthur International Minerals Company abandons its quest for justice in the Judiciary of the Philippine Government, it will inevitably either raise the graft and corruption of Philippine Government officials in the bidding of May 12, 1965, required by the Nickel Law to determine the operator of the Surigao nickel deposits, to the World Court on grounds of deprivation of justice and confiscation of property and /or to the United States Government, either its executive or judicial branches or both, on the grounds of confiscation of respondent's proprietary vested rights by the Philippine Government without either compensation or due process of law — and invoking the Hickenlooper Amendment requiring the cutting off of all aid and benefits to the Philippine Government, including the sugar price premium, amounting to more than fifty million dollars annually, until restitution or compensation is made.

This elicited another resolution from this Court on July 18, 1969, requiring Atty. Juanito M. Caling "to show cause within five (5) days from receipt of notice hereof why he should not be dealt with for contempt of court."

On July 30, 1969, Atty. Juanita M. Caling filed his return. He there alleged that the said fourth motion for reconsideration was already finalized when Atty. Vicente L. Santiago came to his office and requested him to accommodate MacArthur by signing the motion; that he turned down said request twice on the ground that he did not know anything about the case, much less the truth of the allegations stated in the motion; that "the allegations in said motion were subsequently explained to the undersigned counsel together with the background of the case involved by Atty. Vicente L. Santiago and by one Morton F. Meads"; that upon assurance that there was nothing wrong with the motion he was persuaded in good faith to sign the same; that he was misled in so signing and the true facts of the allegations were not revealed to him especially the oral argument allegedly made in the case.

Because of the foregoing explanation by Atty. Caling, this Court, on August 4, 1969, resolved "to require Atty. Vicente L. Santiago and Morton Meads to file in writing their answer to the said return [of Atty. Caling] and at the same time to show cause why they, Atty. Vicente L. Santiago and Morton Meads, should not be dealt with for contempt of court, on or before August 16, 1969; and ... to direct that the three, Atty. Juanita M. Caling, Atty. Vicente L. Santiago, and Morton Meads, personally appear Before this Court on Thursday, August 27, 1969, at 9:30 a.m., on which date the contempt proceedings against all of them will be heard by this Court."

On August 13, 1969, Atty. Vicente L. Santiago gave his explanation. He disavowed the truth of Atty. Caling's statement that he (Santiago) convinced Caling to sign the motion. The truth, according to Santiago, is that one day Morton Meads went to his office and asked him if he

knew of a lawyer nearby who could help him file another motion for reconsideration, and he (Santiago) mentioned Atty. Caling; he there upon accompanied Meads to Caling, told Caling of Meads' desire and left Meads with Caling. Santiago insists that he never prepared the motion and that he never even read it.

On August 15, 1969, Morton Meads answered. Meads' version is as follows: On July 14, 1969, he went to Atty. Santiago's office with the fourth motion for reconsideration which he himself prepared. Santiago started to read the motion and in fact began to make some changes in Pencil in the first or second paragraph when Meads told him that MacArthur wanted a new lawyer, not Santiago, to file the same. Meads asked Santiago if he could recommend one. They then went to Caling whose office was on the same floor. Santiago introduced Meads to Caling at the same time handing the fourth motion to Caling. While Caling was reading the document, Santiago left. After reading the motion, Caling gave his go-signal. He signed the same after his name was typed therein. The motion was then filed. According to Meads, from the time he entered the office of Santiago to the time the motion was filed, the period that elapsed was approximately one hour and a half. Santiago was with Caling for about three minutes and Meads was with Caling for about fifteen minutes.

In defending himself from the contempt charge, Meads asserts that the quotation from the Rules of Court set forth in the fourth motion for reconsideration has not been taken out of context because said quotation is precisely accurate; that the "xs" indicate that it is not a complete quotation and that it is a common practice in court pleadings to submit partial quotations. Meads further contends that the announced plan to bring the case to the World Court is not a threat. In fact, his answer also included a notice of appeal to the World Court.

On August 27, 1969, this Court heard Attys. Vicente L. Santiago and Juanito Caling and Morton Meads in oral argument with respect to the second contempt incident. We shall now discuss the first and second contempt incidents seriatim.

1. We start with the case of Atty. Vicente L. Santiago. In his third motion for reconsideration, we, indeed, find language that is not to be expected of an officer of the courts. He pictures petitioners as "vulturous executives". He speaks of this Court as a "civilized, democratic tribunal", but by innuendo would suggest that it is not.

In his motion to inhibit, his first paragraph categorizes our decision of July 31, 1968 as "false, erroneous and illegal" in a presumptuous manner. He there charges that the ex parte preliminary injunction we issued in this case prejudiced and predetermined the case even before the joining of an issue. He accuses in a reckless manner two justices of this Court for being interested in the decision of this case: Associate Justice Fred Ruiz Castro, because his brother is the vice president of the favored party who is the chief beneficiary of the decision, and Chief Justice Roberto Concepcion, whose son was appointed secretary of the newly-created Board of Investments, "a significant appointment in the Philippine Government by the President, a short time before the decision of July 31, 1968 was rendered." In this backdrop, he proceeds to state that "it would seem that the principles thus established [the moral and ethical guidelines for inhibition of any judicial authority by the Honorable Supreme Court should first apply to itself." He puts forth the claim that lesser and further removed conditions have been known to create favoritism, only to conclude that there is no reason for a belief that the conditions obtaining in the case of the Chief Justice and Justice Castro "would be less likely to engender favoritism or prejudice for or against a particular cause or party." Implicit in this at least is that the Chief Justice and Justice Castro are insensible to delicadeza, which could make their

actuation suspect. He makes it plain in the motion that the Chief Justice and Justice Castro not only were not free from the appearance of impropriety but did arouse suspicion that their relationship did affect their judgment. He points out that courts must be above suspicion at all times like Caesar's wife, warns that loss of confidence for the Tribunal or a member thereof should not be allowed to happen in our country, "although the process has already begun."

It is true that Santiago voluntarily deleted paragraph 6 which contained language that is as disrespectful. But we cannot erase the fact that it has been made. He explained that, he deleted this paragraph in his rough draft, which paragraph was included in the motion filed in this Court only because of mere inadvertence. This explanation does not make much of a distinguishing difference; it erects no shield. Not only because it was belatedly made but also because his signature appeared on the motion to inhibit which included paragraph 6. And this paragraph 6 describes with derision "many of our judicial authorities" who "believe that they are the chosen messengers of God in all matters that come before them, and that no matter what the circumstances are, their judgment is truly ordained by the Almighty unto eternity." It depicts them as seemingly "incapable of considering that any emanation from their mind or pen could be the product of unjudicial prejudice or unjudicial sympathy or favoritism for a party or an issue." After citing acts of two judges of first instance, he paused to ask: "What is the explanation for such mentality? Is it outright dishonesty? Lack of intelligence? Serious deficiency in moral comprehension? Or is it that many of our government officials are just amoral?"

Paragraph 7 also of the motion to inhibit repeated mention of "unjudicial prejudice" against respondent MacArthur and spoke of "unjudicial favoritism" for petitioners, their appointing authority and a favored party directly benefited by the decision. Paragraph 8 is a lecture on judicial ethics. Paragraph 9 is a warning to this Court about loss of confidence, and paragraph 10 makes a sweeping statement that "any other justices who have received favors or benefits directly or indirectly from any of the petitioners or members of any board-petitioner, or their agents or principals, including the President", should also inhibit themselves.

What is disconcerting is that Atty. Santiago's accusations have no basis in fact and in law. The slur made is not limited to the Chief Justice and Mr. Justice Castro. It sweepingly casts aspersion on the whole court. For, inhibition is also asked of, we repeat, "any other justices who have received favors or benefits directly or indirectly from any of the petitioners or any members of any board-petitioner or their agents or principals, including the president." The absurdity of this posture is at once apparent. For one thing, the justices of this Court are appointed by the President and in that sense may be considered to have each received a favor from the President. Should these justices inhibit themselves every time a case involving the Administration crops up? Such a thought may not certainly be entertained. The consequence thereof would be to paralyze the machinery of this Court. We would in fact, be wreaking havoc on the tripartite system of government operating in this country. Counsel is presumed to know this. But why the unfounded charge? There is the not-too-well concealed effort on the part of a losing litigant's attorney to downgrade this Court.

The mischief that stems from all of the foregoing gross disrespect is easy to discern. Such disrespect detracts much from the dignity of a court of justice. Decidedly not an expression of faith, counsel's words are intended to create an atmosphere of distrust, of disbelief. We are thus called upon to repeat what we have said in Rheem of the Philippines vs. Ferrer (1967), 20 SCRA 441, 444, as follows: "By now, a lawyer's duties to the Court have become common place. Really, there could hardly be any valid excuse for lapses in the observance thereof.

Section 20(b), Rule 138 of the Rules of Court, in categorical terms, spells out one such duty: 'To observe and maintain the respect due to the courts of justice and judicial officers.' As explicit is the first canon of legal ethics which pronounces that '[i]t 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 supreme importance.' That same canon, as a corollary, makes it peculiarly incumbent upon lawyers to support the courts against 'unjust criticism and clamor.' And more. The attorney's oath solemnly binds him to a conduct that should be 'with all good fidelity ... to the courts.' Worth remembering is that the duty of an attorney to the courts can only be maintained by rendering no service involving any disrespect to the judicial office which he is bound to uphold.' "

A lawyer is an officer of the courts; he is, "like the court itself, an instrument or agency to advance the ends of justice."1 His duty is to uphold the dignity and authority of the courts to which he owes fidelity, "not to promote distrust in the administration of justice."2 Faith in the courts a lawyer should seek to preserve. For, to undermine the judicial edifice "is disastrous to the continuity of government and to the attainment of the liberties of the people."3 Thus has it been said of a lawyer that "[a]s an officer of the court, it is his sworn and moral duty to help build and not destroy unnecessarily that high esteem and regard towards the courts so essential to the proper administration of justice."4

It ill behooves Santiago to justify his language with the statement that it was necessary for the defense of his client. A client's cause does not permit an attorney to cross the line between liberty and license. Lawyers must always keep in perspective the thought that "[s]ince lawyers are administrators of justice, oath-bound servants of society, their first duty is not to their clients, as many suppose, but to the administration of justice; to this, their clients' success is wholly subordinate; and their conduct ought to and must be scrupulously observant of law and ethics."5 As rightly observed by Mr. Justice Malcolm in his well-known treatise, a judge from the very nature of his position, lacks the power to defend himself and it is the attorney, and no other, who can better or more appropriately support the judiciary and the incumbent of the judicial position.6 From this, Mr. Justice Malcolm continued to say: "It will of course be a trying ordeal for attorneys under certain conditions to maintain respectful obedience to the court. It may happen that counsel possesses greater knowledge of the law than the justice of the peace or judge who presides over the court. It may also happen that since no court claims infallibility, judges may grossly err in their decisions. Nevertheless, discipline and self-restraint on the part of the bar even under adverse conditions are necessary for the orderly administration of justice."7

The precepts, the teachings, the injunctions just recited are not unfamiliar to lawyers. And yet, this Court finds in the language of Atty. Santiago a style that undermines and degrades the administration of justice. The stricture in Section 3 (d) of Rule 71 of the Rules — against improper conduct tending to degrade the administration of justice8— is thus transgressed. Atty. Santiago is guilty of contempt of court.

2. We next take the case of Atty. Jose Beltran Sotto. We analyze the statements pointed out to us by the Solicitor General hereinbefore quoted. Sotto accuses petitioners of having made "false, ridiculous and wild statements in a desperate attempt to prejudice the courts against MacArthur." He brands such efforts as "scattershot desperation". He describes a proposition of petitioners as "corrupt on its face", laying bare "the immoral and arrogant attitude of the petitioners." He charges petitioners with opportunistically changing their claims and stories not only from case to case but from pleading to pleading in the same case. Such language is not

arguably protected; it is the surfacing of a feeling of contempt towards a litigant; it offends the court before which it is made. It is no excuse to say that these statements were taken out of context. We have analyzed the lines surrounding said statements. They do not in any manner justify the inclusion of offensive language in the pleadings. It has been said that "[a] lawyer's language should be dignified in keeping with the dignity of the legal profession."9 It is Sotto's duty as a member of the Bar "[t]o abstain from all offensive personality and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged." 10

Not far from the case of Atty. Sotto is People vs. Young, 83 Phil. 702, 708, where counsel for the accused convicted of murder made use of the following raw language in his brief : "The accused since birth was a poor man and a son of a poor farmer, that since his boyhood he has never owned a thousand pesos in his own name. Now, here comes a chance for him. A cold fifty thousand bucks in exchange of a man's life. A simple job. Perhaps a question of seconds' work and that would transform him into a new man. Once in a small nipa shack, now in a palatial mansion! This poor ignorant man blinded by the promise of wealth, protection and stability was given to do the forbidden deed." We there held that "[s]uch a plea is a disgrace to the bar and an affront to the court."

It will not avail Sotto any to say that the Solicitor General or his assistants may not be considered offended parties in this case. This Court may motu proprio start proceedings of this nature. There should be no doubt about the power of this Court to punish him for contempt under the circumstances. For, inherent in courts is the power "[t]o control, in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a case before it, in every manner appertaining thereto." 11

We, accordingly, hold that Atty. Jose Beltran Sotto has misbehaved, under Section 3 (a), Rule 71 of the Rules of Court, as an officer of the court in the performance of his official duties; and that he too has committed, under Section 3 (d) of the same rule, improper conduct tending to degrade the administration of justice. He is, therefore, guilty of contempt.

3. Not much need be said of the case of Atty. Graciano C. Regala. It was improper for Atty. Santiago to have included the name of the firm of Atty. Regala without the latter's knowledge and consent. Correctly did Regala insist — and this is confirmed by the other lawyers of respondents — that he had not participated in any way in the pleadings of the above-entitled case. Regala did not even know that his name was included as co-counsel in this case. He is exonerated.

4. Last to be considered with respect to the first contempt incident is the case of Atty. Erlito R. Uy. Borne out by the record is the fact that Atty. Uy was not also involved in the preparation of any of the pleadings subject of the contempt citation. He should be held exempt from contempt.

5. We now turn our attention to the second contempt incident. The fourth motion for reconsideration is, indeed, an act of contumacy.

First. It was filed without express leave of court. No explanation has been made why this has been done.

Second. It lifted Section 1. Rule 51, Rules of Court, out of context. Said Section 1 was quoted as follows: "Justices; who may take part. — ... only those members present when any matter is submitted for oral argument will take part in its consideration and adjudication ..." However, the provision in its entire thought should be read thus —

SECTION 1. Justices; who may take part. — All matters submitted to the court for its consideration and adjudication will be deemed to be submitted for consideration and adjudication by any and all of the Justices who are members of the division of the court at the time when such matters are taken up for consideration and adjudication, whether such Justices were or were not present at the date of submission; however, only those members present when any matter is submitted for oral argument will take part in its consideration and adjudication, if the parties or either of them, express a desire to that effect in writing filed with the clerk at the date of submission. 12

Atty. Caling, who was admitted to the Bar in 1966, did not attempt to explain this point.

Meads, however, for his part tried to reason out why such a distorted quotation came about — the portion left out was anyway marked by "XS" which is a common practice among lawyers. Canon 22 of the Canons of Legal Ethics reminds the lawyer to characterize his conduct with candor and fairness, and specifically states that "it is not candid nor fair for the lawyer knowingly to misquote." While Morton Meads is admittedly not a lawyer, it does not take a lawyer to see the deliberate deception that is being foisted upon this Court. There was a qualification to the rule quoted and that qualification was intentionally omitted.

Third. The motion contained an express threat to take the case to the World Court and/or the United States government. It must be remembered that respondent MacArthur at that time was still trying to overturn the decision of this Court of July 31, 1968. In doing so, unnecessary statements were injected. More specifically, the motion announced that MacArthur "will inevitably ... raise the graft and corruption of [the] Philippine government officials in the bidding of May 12, 1965 ... to the World Court" and would invoke "the Hickenlooper Amendment requiring the cutting off of all aid and benefits to the Philippine Government, including the sugar price premium, amounting to more than fifty million dollars annually ... ."

This is a clear attempt to influence or bend the mind of this Court to decide the case in its favor. A notice of appeal to the World Court has even been embodied in Meads' return. There is a gross inconsistency between the appeal and the move to reconsider the decision. An appeal from a decision presupposes that a party has already abandoned any move to reconsider that decision. And yet, it would appear that the appeal to the World Court is being dangled as a threat to effect a change of the decision of this Court. Such act has no aboveboard explanation.

6. Atty. Caling has not shown to the satisfaction of this Court that he should be exempted from the contempt charge against him. He knows that he is an officer of this Court. He admits that he has read the fourth motion for reconsideration before he signed it. While he has been dragged in only at the last minute, still it was plainly his duty to have taken care that his name should not be attached to pleadings contemptuous in character.

7. As for Morton F. Meads, he had admitted having prepared the fourth motion for reconsideration. He cannot beg off from the contempt charge against him even though he is not a lawyer. He is guilty of contempt.

8. We go back to Atty. Vicente L. Santiago. His insistence that he had nothing to do with the fourth motion for reconsideration and that he had not even read the same is too transparent to survive fair appraisal. It goes against the grain of circumstances. Caling represents before us that it was Santiago who convinced him to sign the motion, who with Meads explained to him the allegations thereof and the background of the case. Caling says that if not for his friendship with Santiago, he would not have signed the motion. On the other hand, Meads states that Santiago began to read the fourth motion for reconsideration and even started to make changes thereon in pencil. We must not forget, too, that according to Meads himself, he spent, on July 14, 1969, quite some time with Santiago before they proceeded to Caling. It is highly improbable that Santiago did not read the fourth motion for reconsideration during all that time.

Furthermore, Santiago is a lawyer of record for respondent MacArthur in this case. He has not resigned from his position as such lawyer. He has control of the proceedings. Whatever steps his client takes should be within his knowledge and responsibility. Indeed, Canon 16 of the Canons of Legal Ethics should have reminded him that "[a] lawyer should use his best efforts to restrain and to prevent his clients from doing those things which the lawyer himself ought not to do, particularly with reference to their conduct towards courts, judicial officers, jurors, witnesses and suitors. If a client persists in such wrongdoing the lawyer should terminate their relation."

The dignity of the Court, experience teaches, can never be protected where infraction of ethics meets with complacency rather than punishment. The people should not be given cause to break faith with the belief that a judge is the epitome of honor amongst men. To preserve its dignity, a court of justice should not yield to the assaults of disrespect. Punctilio of honor, we prefer to think, is a standard of behavior so desirable in a lawyer pleading a cause before a court of justice.

9. One last word. It would seem apropos to say again that, if only for one reason, this Court had really no alternative but to decide the main case against respondent MacArthur. As we held in our decision of July 31, 1968, MacArthur did not even adhere to the terms and conditions of the invitation to bid. For, this invitation to bid explicitly warned that "bids not accompanied by bid bonds will be rejected. And We repeat, "[a]dmittedly, the bid of the Company [MacArthur] had been submitted without the requisite bond." 13 It would not require the adroit mind of a lawyer to say that a bid unaccompanied by a bond., contrary to the instructions to bidders, is not entitled to any consideration.

It should be emphasized, too, that because the decision herein was by a unanimous Court, even if the Chief Justice and Mr. Justice Fred Ruiz Castro had not taken part in the decision on the merits of this case, the result would have been the same: MacArthur's cause would just the same have failed.

For the reasons given, this Court hereby finds:

1. On the first contempt charge, Atty. Vicente L. Santiago and Atty. Jose Beltran Sotto guilty of contempt of court, and fines Atty. Santiago in the sum of P1,000, and Atty. Sotto, P100; and holds Attys. Graciano C. Regala and Associates and Atty. Erlito R. Uy not guilty of contempt of court; and

2. On the second contempt charge, Atty. Vicente L. Santiago, Morton F. Meads and Atty. Juanita M. Caling guilty of contempt of court, and fines Atty. Vicente L. Santiago, an additional P1,000, Morton F. Meads, P1,000, and Atty. Juanito M. Caling, P200.

Let a copy of this resolution be forwarded to the Honorable, the Secretary of Justice, for whatever action he may deem proper to take in the premises against Morton F. Meads who is an alien.

Let another copy of this resolution be forwarded to the Honorable, the Solicitor General, for such action as he may deem proper in relation to the disbarment or suspension of Attys. Vicente L. Santiago, Jose Beltran Sotto and Juanito M. Caling.

The Clerk of this Court is hereby directed to append a copy of this decision to the personal records of Attorneys Vicente L. Santiago, Jose Beltran Sotto and Juanito M. Caling. So ordered.

Reyes, J.B.L., Dizon, Makalintal, Zaldivar and Fernando, JJ., concur.

Concepcion C.J., Castro, Teehankee and Barredo, JJ., took no part.

2. In Re Gutierrez 5 scra 661A.M. No. L-363 July 31, 1962

IN RE: DISBARMENT PROCEEDINGS AGAINST ATTY. DIOSDADO Q. GUTIERREZ, respondent.

Victoriano A. Savellano for complaint.Nestor M. Andrada for respondent.

MAKALINTAL, J.:

Respondent Diosdado Q. Gutierrez is a member of the Philippine Bar, admitted to it on October 5, 1945. In criminal case No. R-793 of the Court of First Instance of Oriental Mindoro he was convicted of the murder of Filemon Samaco, former municipal mayor of Calapan, and together with his co-conspirators was sentenced to the penalty of death. Upon review by this Court the judgment of conviction was affirmed on June 30, 1956 (G.R. No. L-17101), but the penalty was changed to reclusion perpetua. After serving a portion of the sentence respondent was granted a conditional pardon by the President on August 19, 1958. The unexecuted portion of the prison term was remitted “on condition that he shall not again violate any of the penal laws of the Philippines.”

On October 9, 1958 the widow of the deceased Filemon Samaco, victim in the murder case, filed a verified complaint before this Court praying that respondent be removed from the roll of lawyers pursuant to Rule 127, section 5. Respondent presented his answer in due time, admitting the facts alleged by complainant regarding pardon in defense, on the authority of the decision of this Court in the case of In re Lontok, 43 Phil. 293.

Under section 5 of Rule 127, a member of the bar may be removed suspended from his office as attorney by the Supreme Court by reason of his conviction of a crime involving moral

turpitude. Murder is, without doubt, such a crime. The term “moral turpitude” includes everything which is done contrary to justice, honesty, modesty or good morals. In re Carlos S. Basa, 41 Phil. 275. As used in disbarment statutes, it means an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellowmen or to society in general, contrary to the accepted rule of right and duty between man and man. State ex rel. Conklin v. Buckingham, 84 P. 2nd 49; 5 Am. Jur. Sec. 279. pp. 428-429.

The only question to be resolved is whether or not the conditional pardon extended to respondent places him beyond the scope of the rule on disbarment aforecited. Reliance is placed by him squarely on the Lontok case. The respondent therein was convicted of bigamy and thereafter pardoned by the Governor-General. In a subsequent decision, this Court decided in his favor and held: “When proceedings to strike an attorney’s name from the rolls the fact of a conviction for a felony ground for disbarment, it has been held that a pardon operates to wipe out the conviction and is a bar to any proceeding for the disbarment of the attorney after the pardon has been granted.”

It is our view that the ruling does not govern the question now before us. In making it the Court proceeded on the assumption that the pardon granted to respondent Lontok was absolute. This is implicit in the ratio decidendi of the case, particularly in the citations to support it, namely. In Re Emmons, 29 Cal. App. 121; Scott vs. State, 6 Tex. Civ. App. 343; and Ex parte Garland, 4 Wall, 380. Thus in Scott vs. State the court said:

We are of opinion that after received an unconditional pardon the record of the felony conviction could no longer be used as a basis for the proceeding provided for in article 226. The record, when offered in evidence, was met with an unconditional pardon, and could not, therefore, properly be said to afford “proof of a conviction of any felony.” Having been thus cancelled, all its force as a felony conviction was taken away. A pardon falling short of this would not be a pardon, according to the judicial construction which that act of executive grace was received. Ex parte Garland, 4 Wall, 344; Knote v. U.S., 95 U.S. 149, and cases there cited; Young v. Young, 61 Tex. 191.

And the portion of the decision in Ex parte Garland quoted with approval in the Lontok case is as follows:

A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out the existence of guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. It granted before conviction, it prevents any of the penalties and disabilities, consequent upon conviction, from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights it makes him, as it were, a new man, and gives him a new credit and capacity.

The pardon granted to respondent here is not absolute but conditional, and merely remitted the unexecuted portion of his term. It does not reach the offense itself, unlike that in Ex parte Garland, which was “a full pardon and amnesty for all offense by him committed in connection with rebellion (civil war) against government of the United States.”

The foregoing considerations rendered In re Lontok are inapplicable here. Respondent Gutierrez must be judged upon the fact of his conviction for murder without regard to the pardon he invokes in defense. The crime was qualified by treachery and aggravated by its having been committed in hand, by taking advantage of his official position (respondent being municipal

mayor at the time) and with the use of motor vehicle. People vs. Diosdado Gutierrez, supra. The degree of moral turpitude involved is such as to justify his being purged from the profession.

The practice of law is a privilege accorded only to those who measure up to certain rigid standards of mental and moral fitness. For the admission of a candidate to the bar the Rules of Court not only prescribe a test of academic preparation but require satisfactory testimonials of good moral character. These standards are neither dispensed with nor lowered after admission: the lawyer must continue to adhere to them or else incur the risk of suspension or removal. As stated in Ex parte Wall, 107 U.S. 263, 27 Law ed., 552, 556: “Of all classes and professions, the lawyer is most sacredly bound to uphold the laws. He is their sworn servant; and for him, of all men in the world, to repudiate and override the laws, to trample them under foot and to ignore the very bonds of society, argues recreancy to his position and office and sets a pernicious example to the insubordinate and dangerous elements of the body politic.

WHEREFORE, pursuant to Rule 127, Section 5, and considering the nature of the crime for which respondent Diosdado Q. Gutierrez has been convicted, he is ordered disbarred and his name stricken from the roll of lawyers.

Bengzon, C.J., Labrador, Concepcion, Barrera, Paredes, Dizon and Regala, JJ., concur.Padilla, J., took no part.

3.Quiñagwa vs puno 19 scra 439

A.C. No. 389 February 28, 1967

IN RE: DISBARMENT OF ARMANDO PUNO. FLORA QUINGWA complainant,

-versus-ARMANDO PUNO, respondent.

Domingo T. Zavalla for complainant.Armando Puno for and in his own behalf as respondent.

REGALA, J.:

On April 16, 1959, Flora Quingwa filed before this Court a verified complaint charging Armando Puno, a member of the Bar, with gross immorality and misconduct. In his answer, the respondent denied all the material allegations of the complaint, and as a special defense averred that the allegations therein do not constitute grounds for disbarment or suspension under section 25, Rule 127 of the former Rules of Court.

The case was referred to the Solicitor General on June 3, 1958, for investigation, report and recommendation. Hearings were held by the then Solicitor Roman Cancino, Jr., during which the complainant, assisted by her counsel, presented evidence both oral and documentary. The respondent, as well as his counsel, cross-examined the complainant's witnesses. The respondent likewise testified. He denied having sexual intercourse with complainant at the Silver Moon Hotel on June 1, 1958, disclaimed the handwriting "Mr. & Mrs. A. Puno" appearing in the hotel register, and disowned Armando Quingwa Puno, Jr. to be his child.

After the hearing, the Solicitor General filed a complaint, formally charging respondent with immorality. The complaint recites:

That on June 1, 1958, at a time when complainant Flora Quingwa and respondent Armando Puno were engaged to be married, the said respondent invited the complainant to attend a movie but on their way the respondent told the complainant that they take refreshment before going to the Lyric Theater; that they proceeded to the Silver Moon Hotel at R. Hidalgo, Manila; that while at the restaurant on the first floor of the said Silver Moon Hotel, respondent proposed to complainant that they go to one of the rooms upstairs assuring her that 'anyway we are getting married; that with reluctance and a feeling of doubt engendered by love of respondent and the respondent's promise of marriage, complainant acquiesced, and before they entered the hotel room respondent registered and signed the registry book as 'Mr. and Mrs. A. Puno; that after registering at the hotel, respondent shoved complainant inside the room; that as soon as they were inside the room, someone locked the door from outside and respondent proceeded to the bed and undressed himself; that complainant begged respondent not to molest her but respondent insisted, telling her: 'anyway I have promised to marry you'; and respondent, still noticing the reluctance of complainant to his overtures of love, again assured complainant that 'you better give up. Anyway I promised that I will marry you'; that thereupon respondent pulled complainant to the bed, removed her panty, and then placed himself on top of her and held her hands to keep her flat on the bed; that when respondent was already on top of complainant the latter had no other recourse but to submit to respondent's demand and two (2) sexual intercourse took place from 3:00 o'clock until 7:00 o'clock that same evening when they left the hotel and proceeded to a birthday party together; that after the sexual act with complainant on June 1, 1958, respondent repeatedly proposed to have some more but complainant refused telling that they had better wait until they were married; that after their said sexual intimacy on June 1, 1958 and feeling that she was already on the family way, complainant repeatedly implored respondent to comply with his promise of marriage but respondent refused to comply; that on February 20, 1959, complainant gave birth to a child.

That the acts of the respondent in having carnal knowledge with the complainant through a promise of marriage which he did not fulfill and has refused to fulfill up to the present constitute a conduct which shows that respondent is devoid of the highest degree of morality and integrity which at all times is expected of and must be possessed by members of the Philippine Bar.

The Solicitor General asked for the disbarment of the respondent.

A copy of this complaint was served on respondent on May 3, 1962. Thereupon, he answered the complaint on June 9, 1962, again denying that he took complainant to the Silver Moon Hotel and that on the promise of marriage, succeeded twice in having sexual intercourse with her. He, however, admitted that sometime in June, 1955, he and the complainant became sweethearts until November, 1955, when they broke off, following a quarrel. He left for Zamboanga City in July, 1958, to practice law. Without stating in his answer that he had the intention of introducing additional evidence, respondent prayed that the complaint be dismissed.

This case was set for hearing in this Court on July 20, 1962. On the day of the hearing Solicitor Ceferino E. Gaddi who appeared for the complainant submitted the case for decision without oral argument. There was no appearance for the respondents.

Since the failure of respondent to make known in his answer his intention to present additional evidence in his behalf is deemed a waiver of the right to present such evidence (Toledo vs. Toledo, Adm. Case No.

266, April 27, 1963), the evidence produced before the Solicitor General in his investigation, where respondent had an opportunity to object to the evidence and cross-examine the witnesses, may now be considered by this Court, pursuant to Section 6, Rule 139 of the Rules of Court.

After reviewing the evidence, we are convinced that the facts are as stated in the complaint.

Complainant is an educated woman, having been a public school teacher for a number of years. She testified that respondent took her to the Silver Moon Hotel on June 1, 1958, signing the hotel register as "Mr. and Mrs. A. Puno," and succeeded in having sexual intercourse with her on the promise of marriage. The hotel register of the Silver Moon Hotel (Exh. B-1 and Exh. B-2) shows that "Mr. and Mrs. A. Puno" arrived at that hotel on June 1, 1958 at 3:00 P.M. and departed at 7:00 P.M.

Complainant also testified that she last saw respondent on July 5, 1958, when the latter went to Zamboanga City. When she learned that respondent had left for Zamboanga City, she sent him a telegram sometime in August of that year telling him that she was in trouble. Again she wrote him a letter in September and another one in October of the same year, telling him that she was pregnant and she requested him to come. Receiving no replies from respondent, she went to Zamboanga City in November, 1958, where she met the respondent and asked him to comply with his promise to marry her.

Respondent admitted that he left for Zamboanga City in July, 1958, and that he and complainant met in Zamboanga City in November, 1958. The fact that complainant sent him a telegram and letters was likewise admitted in respondent's letter to the complainant dated November 3, 1958 (Exh. E), which was duly identified by the respondent to be his.

Complainant gave birth to a baby boy on February 20, 1959, at the Maternity and Children's Hospital. This is supported by a certified true copy of a birth certificate issued by the Deputy Local Civil Registrar of Manila, and a certificate of admission of complainant to the Maternity and Children's Hospital issued by the medical records clerk of the hospital.

To show how intimate the relationship between the respondent and the complainant was, the latter testified that she gave money to the respondent whenever he asked from her. This was corroborated by the testimony of Maria Jaca a witness for the complainant. Even respondent's letter dated November 3, 1958 (Exh. E) shows that he used to ask for money from the complainant.

The lengthy cross-examination to which complainant was subjected by the respondent himself failed to discredit complainant's testimony.

In his answer to the complaint of the Solicitor General, the respondent averred that he and complainant were sweethearts up to November, 1955 only. The fact that they reconciled and were sweethearts in 1958 is established by the testimony of Fara Santos, a witness of the complainant (pp. 12 & 17, t.s.n.); respondent's letter to the complainant dated November 3, 1958 (Exh. E); and respondent's own testimony (pp. 249 & 255, t.s.n.)

Complainant submitted to respondent's plea for sexual intercourse because of respondent's promise of marriage and not because of a desire for sexual gratification or of voluntariness and mutual passion. (Cf. Tanjanco vs. Court of Appeals, G.R. No. L-18630, December 17, 1966) .

One of the requirements for all applicants for admission to the Bar is that the applicant must produce before the Supreme Court satisfactory evidence of good moral character (Section 2, Rule 127 of the old Rules of Court, now section 2, Rule 138). If that qualification is a condition precedent to a license or

privilege to enter upon the practice of law, it is essential during the continuance of the practice and the exercise of the privilege. (Royong vs. Oblena, Adm. Case No. 376, April 30, 1963, citingIn re Pelaez, 44 Phil. 567). When his integrity is challenged by evidence, it is not enough that he denies the charges against him; he must meet the issue and overcome the evidence for the relator (Legal and Judicial Ethics, by Malcolm, p. 93) and show proofs that he still maintains the highest degree of morality and integrity, which at all times is expected of him. Respondent denied that he took complainant to the Silver Moon Hotel and had sexual intercourse with her on June 1, 1958, but he did not present evidence to show where he was on that date. In the case of United States vs. Tria, 17 Phil. 303, Justice Moreland, speaking for the Court, said:

An accused person sometimes owes a duty to himself if not to the State. If he does not perform that duty he may not always expect the State to perform it for him. If he fails to meet the obligation which he owes to himself, when to meet it is the easiest of easy things, he is hardly indeed if he demand and expect that same full and wide consideration which the State voluntarily gives to those who by reasonable effort seek to help themselves. This is particularly so when he not only declines to help himself but actively conceals from the State the very means by which it may assist him.

With respect to the special defense raised by the respondent in his answer to the charges of the complainant that the allegations in the complaint do not fall under any of the grounds for disbarment or suspension of a member of the Bar as enumerated in section 25 of Rule 127 of the (old) Rules of Court, it is already a settled rule that the statutory enumeration of the grounds for disbarment or suspension is not to be taken as a limitation on the general power of courts to suspend or disbar a lawyer. The inherent powers of the court over its officers can not be restricted. Times without number, our Supreme Court held that an attorney will be removed not only for malpractice and dishonesty in his profession, but also for gross misconduct, which shows him to be unfit for the office and unworthy of the privileges which his license and the law confer upon him. (In re Pelaez, 44 Phil. 567, citing In re Smith [1906] 73 Kan 743; Balinon vs. de Leon Adm. Case No. 104, January 28, 1954; 50 O.G. 583; Mortel vs. Aspiras, Adm. Case No. 145, December 28, 1956, 53 O.G. 627). As a matter of fact, "grossly immoral conduct" is now one of the grounds for suspension or disbarment. (Section 27, Rule 138, Rules of Court).

Under the circumstances, we are convinced that the respondent has committed a grossly immoral act and has, thus disregarded and violated the fundamental ethics of his profession. Indeed, it is important that members of this ancient and learned profession of law must conform themselves in accordance with the highest standards of morality. As stated in paragraph 29 of the Canons of Judicial Ethics:

... The lawyer should aid in guarding the bar against the admission to the profession of candidates unfit or unqualified because deficient in either moral character or education. He should strive at all times to uphold the honor and to maintain the dignity of the profession and to improve not only the law but the administration of justice.

Wherefore, respondent Armando Puno is hereby disbarred and, as a consequence, his name is ordered stricken off from the Roll of Attorneys.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ., concur.

4. Nombrado vs Hernandez 26 scra 13

A.C. No. 555 November 25, 1968

ERNESTO M. NOMBRADO, petitioner, -versus-

ATTY. JUANITO T. HERNANDEZ, respondent.

MAKALINTAL, J.:

This is an administrative case for disbarment instituted by Ernesto M. Nombrado against Juanito T. Hernandez, a member of the Philippine Bar, charging the latter with malpractice on two counts, namely: (1) for having appeared as counsel for Crispin Nazareno in a civil case for forcible entry against Arsenio Pansaon, his former client, being the offended party and complainant, in a criminal case for serious physical injuries wherein Eufemio Velasco (Nazareno), a son of Crispin, was the accused; and (2) for having appeared as counsel for the accused and also for the complaining witness in Criminal Case No. 329 of the Justice of the Peace Court (now municipal court) of Baganga, Davao (now Davao Oriental).

In our resolution of January 14, 1963, we referred this case for investigation to the Solicitor General, who in turn endorsed it to the Provincial Fiscal of Davao for the same purpose, but complainant and respondent being residents of Baganga, Davao Oriental. When the case was set for hearing by the First Assistant Provincial Fiscal of Davao respondent manifested and requested that since the charges were the same as those filed by the same complainant against him in Disbarment Case No. 37 of the Court of First Instance of Davao, wherein a decision had already been rendered, the records of said proceeding, together with the evidence adduced by the parties, be forwarded to this Court, through the Solicitor General, for final disposition. Complainant in turn submitted his evidence in support of the charges against respondent.

With respect to the first count, it is undisputed that sometime in 1952 respondent was engaged by Arsenio Pansaon as his counsel in the prosecution of a criminal case for serious physical injuries entitled "People vs. Eufemio Nazareno" of the Justice of the Peace Court of Baganga, Davao. In that case the accused was charged with having mauled Arsenio Pansaon when the latter was seen within the perimeter of the land then being disputed between said Arsenio Pansaon and Eufemio's father, Crispin Nazareno. However, the case was dismissed when the complaining witness failed to appear on the day of the trial. Several years thereafter Crispin Nazareno, through respondent, filed a complaint for forcible entry against Arsenio Pansaon and two other persons, involving the same parcel of land which was the root cause of the mauling incident. The defendants moved to disqualify respondent from appearing as counsel for the plaintiff on the ground that he had previously acted as counsel for Arsenio Pansaon in the criminal case for physical injuries, but the motion was subsequently withdrawn. In the Justice of the Peace Court the plaintiff lost, but won in the Court of First Instance of Davao on appeal.

When Disbarment Case No. 37 against respondent was heard in the Court of First Instance of Davao, Arsenio Pansaon testified for petitioner and said that perhaps he lost the forcible entry case because respondent had become privy to valuable information about his claim of ownership of the parcel of land in question in the course of their attorney-and-client relationship and must have used such information against him, including a document obtained by respondent from notary public Abellanosa. Respondent denied the truth of the foregoing testimony and in turn declared that the only information he obtained from complainant Pansaon was about the mauling incident itself — how it happened and why he sustained the injuries; that he did not ask Pansaon for any papers or documents in connection with that criminal case, except a medical certificate issued to him by the attending physician; that in handling the

forcible entry case for Crispin Nazareno against his former client, he did not use against the latter any fact or information he acquired in the course of their attorney-and-client relationship; and that if there was any document he presented in the forcible entry case it came from Crispin Nazareno and not from notary public Abellanosa.

The Solicitor General is of the opinion, and we find no reason to disagree with him, that even if respondent did not use against his client any information or evidence acquired by him as counsel it cannot be denied that he did become privy to information regarding the ownership of the parcel of land which was later litigated in the forcible entry case, for it was the dispute over the land that triggered the mauling incident which gave rise to the criminal action for physical injuries. This Court's remarks in Hilado vs. David, 84 Phil. 571, are apropos:

Communications between attorney and client are, in a great number of litigations, a complicated affair, consisting of entangled relevant and irrelevant, secret and well known facts. In the complexity of what is said in the course of dealings between an attorney and client, inquiry of the nature suggested would lead to the revelation, in advance of the trial, of other matters that might only further prejudice the complainant's cause.

Whatever may be said as to whether or not respondent utilized against his former client information given to him in a professional capacity, the mere fact of their previous relationship should have precluded him from appearing as counsel for the other side in the forcible entry case. In the same case of Hilado vs. David, supra, this Tribunal further said:

Hence the necessity of setting down the existence of the bare relationship of attorney and client as the yardstick for testing incompatibility of interests. This stern rule is designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as well to protect the honest lawyer from unfounded suspicion of unprofessional practice.... It is founded on principles of public policy, of good taste. As has been said in another case, the question is not necessarily one of the rights of the parties, but as to whether the attorney has adhered to proper professional standard. With these thoughts in mind, it behooves attorneys, like Caesar's wife, not only to keep inviolate the client's confidence, but also to avoid the appearance of treachery and double-dealing. Only thus can litigants be encouraged to entrust their secrets to their attorneys which is of paramount importance in the administration of Justice.

This Court went even further in San Jose vs. Cruz, 57 Phil. 792, wherein the respondent was charged with malpractice for having represented a new client whose interests were opposed to those of his former client in another case:

... An attorney owes loyalty to his client not only in the case in which he has represented him but also after the relation of attorney and client has terminated and it is not good practice to permit him afterwards to defend in another case other person against his former client under the pretext that the case is distinct from, and independent of the former case.1

Under the first count, respondent has shown a departure from the strict norms of professional conduct laid down for members of the bar.

Under the second count, it appears that respondent was counsel for the defendants Sotero Pontawe and Teofilo Aumada in Criminal Case No. 329 for theft of large cattle before the Justice of the Peace Court of Baganga. Before the scheduled hearing on September 18, 1959, upon request of complaining witness Ramon Morales, respondent prepared a motion to dismiss on the ground that the "real accused in this case are not the above-named persons." Notwithstanding the motion to dismiss, the complaining witness was

cited to appear on September 25, 1959 "to find out why Mr. Ramon Morales, the complainant of Criminal Case No. 329, did not appear on September 18, 1959, the date designated for preliminary investigation proper of this case, and to find out whether the manifestation of counsel of the defense that there is such amicable settlement in this case, Criminal Case No. 329, is true." During the hearing on September 25, 1959, a heated exchange of argument arose between respondent and the private prosecutor, Atty. Danao because of the latter's insistence on calling Morales to the witness stand despite his expressed desistance to prosecute the criminal case. Respondent manifested his intention to "intervene in behalf of the complaining party in connection with the action of Atty. Danao in this particular case."

We concur with the Solicitor General's view that under the foregoing circumstances, respondent's act of preparing the motion to dismiss and stating in the course of the hearing thereof that he was intervening "in behalf of the complaining party", did not constitute simultaneous appearance in behalf of the contending parties since there was no longer any conflict to speak of, the complainant having desisted from prosecuting the case against the accused. Consequently, there was nothing improper in respondent's conduct.

Upon the facts established in connection with the first count the Solicitor General has recommended that the penalty of reprimand and warning be administered, citing the decision of this Court in a comparable case, Caoibes vs. de la Rosa, 27 Phil. 265. We believe the recommendation is justified.

WHEREFORE, respondent Juanito T. Hernandez is hereby reprimanded and warned that a repetition of unprofessional conduct on his part will be dealt with more severely. Let this decision be noted in respondent's record as a member of the Bar.

Concepcion, C. J., Reyes, J.B.L., Dizon, Zaldivar, Sanchez, Castro, Fernando and Capistrano, JJ., concur.

5. Beringuer vs Caranza 26 scra 673

A.C. No. 716 January 30, 1969

EDUARDO J. BERENGUER, complainant, -versus-

PEDRO B. CARRANZA, respondent.

FERNANDO, J.:

The law is an exacting taskmaster. Membership in the bar, as so appropriately put, is a privilege burdened with conditions. 1 A lawyer is called upon by virtue of his oath of office to "do no falsehood, nor consent to the doing of any in court; ... [and to] conduct (himself) as a lawyer according to the best of [his] knowledge and discretion with all good fidelity ... to the courts ..." 2 The question, one that has an element of novelty, is whether respondent Pedro B. Carranza, duly admitted to the practice of the law, did get entangled in the complexity of the strands in the web of obligation such an oath imposes? More specifically, did he manifest the utmost fealty to the trust reposed in him as an officer of the Court by taking all necessary measures to avoid the court being misled, even if such were the result not of design but of inadvertence?

A complaint against respondent Pedro B. Carranza was filed on July 15, 1966, for deception practiced on the Court of First Instance of Sorsogon, in that aware of the falsity of an Affidavit of

Adjudication and Transfer executed by the mother of his client to the effect that her own mother left no legitimate ascendants or descendants or any other heirs except herself, when, as a matter of fact, the deceased was survived by four other daughters and one son, father of the complainant, he introduced the same in evidence. 3

Respondent Carranza was required in our resolution of July 22, 1966, to file an answer. Thereafter, on August 17, 1966, he did so, alleging as the truth of the matter that the aforesaid Affidavit of Adjudication and Transfer was introduced in evidence only to prove the fact of such transfer of the property in question to his client, respondent having "no hand in the making of said affidavit nor of the petition, both of which were prepared in Pasay City." 4

On September 1, 1966, the matter was referred by us to the Solicitor General for investigation, report and recommendation. Such investigation was had wherein both complainant and respondent were duly heard. The issue in the opinion of the then Solicitor General, the Honorable Antonio Barredo, now a member of this Court, as set forth in his report of March 18, 1968, is whether respondent "consented in violation of his oath, to the doing of any falsehood in court."

It was admitted in said report: "If respondent had anything to do with the preparation of the Petition or of the Affidavit of Adjudication, his participation does not appear from the evidence presented in this case. The Petition was subscribed and sworn to in Pasay City before one Atty. A. Mendoza, while the Affidavit was subscribed under oath in Pasay before Notary Public Ernesto V. Ventura. The foregoing documents were posted from Pasay to the Clerk of Court, Sorsogon...." 5

It was likewise noted that respondent testified as to his being "not "very meticulous about the petition" because there was neither private nor government opposition thereto; that if he had intended to deceive the court by virtue of the documents, he could have told his client to answer his questions at the cadastral hearing to conform to the controverted paragraph in the Affidavit of Adjudication concerning the statement reproduced from the tax declaration that the decedent left no legitimate ascendants or descendants or any other heirs except the affiant...." 6

There is this admission in the aforesaid report. Thus: "As the evidence stands, there is no apparent causal link between the falsehood and the fact that respondent is the lawyer handling the cadastral case at the Sorsogon end." 7 Nonetheless, while recognizing the absence of evidence that such falsehood in the Affidavit of Adjudication could be traced to respondent, the report would hold him liable for discretionary action as the circumstance that various estates are involved "certainly warranted a greater exercise of diligence on respondent's part." 8

Moreover, as likewise stated therein, the fact "that he did not even bother to read the entirety of the affidavit runs counter to respondent's inescapable duty to clear up doubts and inconsistencies." 9 For he could have been aware of the family litigations between his client and complainant which are rooted in successional rights...." 10 If only for the above fact then, as stated in the report, "he should precisely have taken the bother to read the entirety of the Affidavit of Adjudication when the cadastral case was heard on January 17, 1966...." 11

From which, in the light of the above, it was the conclusion of the then Solicitor General Antonio Barredo, assisted by Assistant Solicitor General Frine Zaballero: "If he did not, he cannot be relieved from the consequences of his acts as a lawyer, and disclaim responsibility therefor. To allow respondent relief from his duty is to ignore what is obvious from the nature of the litigations in which he entered his appearance.... Actually, respondent's failure to read the affidavit proves that he did not properly inform himself of the evidence he was going to present in court, thereby exhibiting an indifference to proof

inconsistent with facts he definitely knows. Thus, respondent has contributed to confusion and the prolongation of the cadastral suit, which pends as a petition for Relief...." 12

It was the recommendation that the corresponding complaint for the violation of his oath against respondent be instituted. Such complaint was filed by the two above officials on March 18, 1968. Respondent was charged with "violation of his oath of office, [having] caused confusion and prolongation of the cadastral suit for presenting evidence therein containing a false statement inconsistent with facts he definitely knows by reason of the family litigations between his client and complainant herein, which are rooted in successional rights [and that] respondent's failure to discharge his duties as a lawyer consistent with his oath of office finds sanction in Rule 138, Section 27, Revised Rules of Court." 13

Respondent in his answer, dated May 16, 1968, raised no issue as to the facts. He would allege in justification however "that while it is true that the ... respondent was the counsel who appeared for the petitioner in Cadastral Case No. 2, LRC Cadastral Record No. 869 of Sorsogon Cadastre, yet he had nothing to do with the making of the petition and the annexes thereto attached; for the same were made in Pasay City and that when (he) accepted to represent the petitioner in the Cadastral Case mentioned above, there was no opposition from anybody ... not even from the Bureau of Lands nor from the Honorable Solicitor General, making, therefore, the hearing therein a mere formality. Such being the case, the [respondent] presented the petitioner's case on January 17, 1966, without meticulously going over the documents, and the alleged Affidavit of Adjudication and Transfer was presented to show the fact of transfer of the land described therein from the affiant to her son. The stenographic notes in that proceeding will bear this matter out. [Respondent's] failure to notice the existence of an incorrect statement in the said affidavit was a mere oversight. It was not [wilful], for he has not consented to the doing of the falsity therein made, since the same was prepared by petitioner's lawyer in Pasay City; nor did [respondent] willingly do falsehood in the hearing mentioned above; ..." 14

There is something unique in this proceeding then. With the finding of the then Solicitor General Barredo that there was nothing wilful in the conduct pursued by respondent in thus introducing in evidence the Affidavit of Adjudication and Transfer which turned out to be false, in the preparation of which, however, he had nothing to do, the charge of deliberate deception obviously cannot be sustained.

Would that of itself entirely exculpate him from any responsibility? The answer must be in the negative. As was correctly pointed out in the complaint, his failure to exercise greater care did result in the "confusion and prolongation of the cadastral suit." Under the circumstances, it would be to err on, the side of undue leniency if he would be held blameless. He had incurred liability. His fidelity to his oath as attorney was less than entire.

Every member of the bar must be on his guard, lest through oversight or inadvertence, the way he conducts his case or the evidence he presents could conceivably result in a failure of justice. Time and time again, lawyers have been admonished to remember that they are officers of the court, and that while they owe their clients the duty of complete fidelity and the utmost diligence, they are likewise held to strict accountability insofar as candor and honesty towards the court is concerned.

Even if there be no intent to deceive, therefore, a lawyer whose conduct, as in this case, betrays inattention or carelessness should not be allowed to free himself from a charge thereafter instituted against him by the mere plea that his conduct was not wilful and that he has not consented to the doing of the falsity.

A lawyer's oath is one impressed with the utmost seriousness; it must not be taken lightly. Every lawyer must do his best to live up to it. There would be a failure of justice if courts cannot rely on the

submission as well as the representations made by lawyers, insofar as the presentation of evidence, whether oral or documentary, is concerned. If, as unfortunately happened in this case, even without any intent on the part of a member of the bar to mislead the court, such deplorable event did occur, he must not be allowed to escape the responsibility that justly attaches to a conduct far from impeccable.

WHEREFORE, respondent Pedro B. Carranza is reprimanded and warned that a repetition of an offense of this character would be much more severely dealt with. The Court of First Instance of Sorsogon, through any of the district judges, is hereby directed to administer in public the reprimand thus imposed on respondent Pedro B. Carranza. The complainant, Eduardo J. Berenguer, must be duly informed of the date when such reprimand is to be administered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Capistrano and Teehankee, JJ., concur.Barredo,. J., took no part.

6. cobb-perez vs lantim 24 scra 291

G.R. No. L-22320 July 29, 1968

MERCEDES RUTH COBB-PEREZ and DAMASO P. PEREZ, petitioners, vs.HON. GREGORIO LANTIN, Judge of the Court of First Instance of Manila, RICARDO P. HERMOSO and the CITY SHERIFF OF MANILA, respondents.

Crispin D. Baizas and Associates for petitioners. Isidro T. Almeda for respondents.

CASTRO, J.:

This is a motion for partial reconsideration of this Court's decision of May 22, 1968, specifically directed against the following observation therein made:

We feel compelled to observe that during the protracted litigation below, the petitioners resorted to a series of actions and petitions, at some stages alternatingly, abetted by their counsel, for the sole purpose of thwarting the execution of a simple money judgment which has long become final and executory. Some of the actions were filed, only to be abandoned or withdrawn. The petitioners and their counsel, far from viewing courts as sanctuaries for those who seek justice, have tried to use them to subvert the very ends of justice.

Corollarily, this Court assessed treble costs against the petitioners, to "be paid by their counsel.".

The herein movants, Attys. Crispin D. Baizas and A. N. Bolinas, counsels for the petitioners, while submitting to the judgment on the merits, seek reconsideration of the decision in so far as

it reflects adversely upon their "professional conduct" and condemns them to pay the treble costs adjudged against their clients.

At first blush, the motion for reconsideration presents a semblance of merit. After mature deliberation and patient reprobing into the records of the case, however, we are of the firmer conviction that the protracted litigation, alluded to in the above-quoted portion of our decision, was designed to cause delay, and the active participation of the petitioners' counsels in this adventure is patent.

After November 15, 1962 when the Court of Appeals rendered judgment sustaining Damaso Perez' position with respect to the extent of the levy, the subsequent proceedings interposed alternatingly by the petitioner spouses were obviously quixotic maneuvers expected to be overthrown by the courts but calculated to delay an execution long overdue.

Had the petitioners and their counsels seriously believed that the levied shares of stock were conjugal property, why did they not adopt this position from the very start, or, at the latest, in CA-G.R. 29962-R, wherein Damaso Perez challenged the legality of the levy's coverage, in order to end the litigation with reasonable dispatch? They chose, however, to attack the execution in a piecemeal fashion, causing the postponement of the projected execution sale six times. More than eight years after the finality of the judgment have passed, and the same has yet to be satisfied.

In a determined effort to prolong the litigation, the Perez spouses, as represented by their counsels, sought the issuance of preliminary injunctions to restrain the execution of the final judgment in civil case 39407 from courts which did not have jurisdiction and which would, as expected, initially or ultimately deny their prayer. For instance, after Damaso Perez bowed out temporarily from the scene following the rendition of the aforementioned Court of Appeals decision, his wife, Mercedez, Ruth Cobb-Perez, intruded into the controversy and asked for an ex parte writ of preliminary injunction from the Court of First Instance of Rizal in connection with civil case 7532 which she filed with the said court, knowing fully well that the basic civil case 39407 was decided by the Court of First Instance of Manila (Branch VII presided by the respondent Judge Lantin), which latter court was the proper forum for any action relative to the execution. Judge Eulogio Mencias of the Court of First Instance of Rizal, looking to Acosta vs. Alvendia (L-14598, October 31, 1960), which held that courts of first instance have no power to restrain acts outside their territorial jurisdictions, lifted on October 4, 1963 the ex parte writ which he previously issued enjoining the respondent sheriff from carrying out the execution sale. It is clear, however, that Mrs. Perez and her counsels, the movants, knew or ought to have known beforehand that the Court of First Instance of Rizal did not have jurisdiction to issue the writ which Mrs. Perez herself sought, and, anticipating the recall of the writ improvidently issued, on September 3, 1963, a month before the said writ was actually lifted, filed in the basic civil case 39407 an urgent motion to lift the writ of execution issued on August 15, 1961, alleging as justification the conjugal nature of the levied shares of stock and the personal nature of Damaso Perez' judgment debt, the very same reasons advanced in civil case 7532 which was then still pending in the Court of First Instance of Rizal. Incidentally, Mrs. Perez failed to adduce any evidence in support of her aforesaid urgent motion, as in fact neither she nor her counsels appeared during the scheduled hearing, prompting the respondent judge to issue the following order:

When the urgent motion to recall or lift writ of execution was called this morning for hearing, counsel for the movant did not appear despite the fact that he had been duly

notified of the motion for hearing. In view thereof the court assumes that he is waiving his right to present evidence in support of his urgent motion to recall or lift writ of execution. Said urgent motion is therefore deemed submitted for resolution.

Despite the recall of the aforementioned writ of injunction by Judge Mencias on a disclaimer of jurisdiction (since the execution sought to be enjoined was ordered by another tribunal), Mrs. Perez, now assisted by her husband who had staged a comeback, prayed for the issuance of another injunction, this time from Branch XXII of the Court of First Instance of Manila (not the same Branch which issued the controverted writ of execution), in connection with civil case 7532, then still pending in the Court of First Instance of Rizal. As most probably anticipated anew by the Perez spouses and their counsels, Judge Alikpala, presiding judge of Branch XXII, on November 8, 1963 denied the preliminary injunction sought, on the ground, among others, that he had no power to interfere by injunction with the judgment or decree of a court of concurrent or coordinate jurisdiction. On the very day the injunction was denied, Damaso Perez, as if expecting the reversal from Judge Alikpala, was already prepared with another "remedy," as in fact on that day, November 8, 1963, he filed in the basic civil case 39407 an "Urgent Motion for Reconsideration" of the order of October 19, 1963, which denied his wife's above-mentioned motion to recall the controverted writ of execution.

The foregoing motion, far from seriously seeking the reconsideration of the order of October 19, 1963, which in the first place Damaso Perez could not legally do for he was not even a party to the denied "Urgent Motion to Recall Writ of Execution" (filed by his wife alone), was merely an offer to replace the levied stocks with supposed cash dividends due to the Perez spouses as stockholders in the Republic Bank.1 As a matter of fact, when the motion was set for hearing on December 21, 1963, the counsels for Damaso Perez promised to produce the said cash dividends within five days, but the promise was never fulfilled.2 Consequently, the respondent Judge on January 4, 1964, denied the said motion for reconsideration.

The above exposition of the circumstances relative to the protracted litigation clearly negates the avowal of the movants that "in none of the various incidents in the case at bar has any particular counsel of petitioners acted with deliberate aforethought to delay the enforcement of the judgment in Civil Case No. 39407." From the chronology of antecedent events, the fact becomes inescapable that the Perez spouses, coached by their counsels, had sallied forth on a strategem of "remedies" projected to foil the lawful execution of a simple money judgment. It is equally obvious that they foreshadowed their own reversals in the "remedies" they ventured to adopt, such that even before, one remedy had been exhausted, they interposed another until the case reached this Court for the second time. 3 Meanwhile, justice was delayed, and more than one member of this Court are persuaded that justice was practically waylaid.

The movants also contend that even this Court sanctions the aforesaid civil cases 7532 and 55292 as the "proper remedy" when we said that.

In reality, what they attacked is not the writ of execution, the validity and regularity of which are unchallenged, but the levy made by the respondent Sheriff. In this regard, the remedy is not the recall of the writ, but an independent action to enjoin the Sheriff from proceeding with the projected sale, in which action the conjugal nature of the levied stocks should be established as a basis for the subsequent issuance of a permanent injunction, in the event of a successful claim. Incidentally, in the course of the protracted litigation, the petitioners had already availed of this remedy in civil cases 7532 and

55292, only to abandon it as they incessantly sought other, and often simultaneous, devices of thwarting satisfaction of the judgment debt. (Emphasis supplied) .

And because of this statement, they now counter that the said cases could not be branded as having been instituted for delay.

The reference we made to civil cases 7532 and 55292 in the above-quoted statement must not be considered out of context. We said that the petitioners incidentally had already availed of the suggested remedy only in the sense that said civil cases 7532 and 55292 were apparently instituted to prove the conjugal nature of the levied shares of stocks in question. We used the word incidentally advisedly to show that in their incessant search for devices to thwart the controverted execution, they accidentally stumbled on the suggested remedy. But the said civil cases were definitely not the "proper remedy" in so far as they sought the issuance of writs of preliminary injunction from the Court of First Instance of Rizal and the Court of First Instance of Manila (Branch XXII) where civil cases 7532 and 55292 were filed respectively, for the said courts did not have jurisdiction to restrain the enforcement of the writ of execution issued by the Court of First Instance of Manila (Branch VII) under the settled doctrines that Courts are without power to restrain acts outside of their territorial jurisdiction 4 or interfere with the judgment or decree of a court of concurrent or coordinate jurisdiction. 5 However, the recall and the denial of the writs of preliminary injunction in civil cases 7532 and 55292 did not amount to the termination or dismissal of the principal action in each case. Had the Perez spouses desired in earnest to continue with the said cases they could have done so. But the fact is that Mrs. Perez practically abandoned civil case 7532 when she instituted the above mentioned urgent motion to recall writ of execution in the basic civil case 39407, anchored on the same grounds which she advanced in the former case, until the said civil case 7532 was dismissed on November 9, 1963, upon her own motion. Anent civil case 55292, the Perez spouses virtually deserted the same when they instituted the herein petition for certiorari with urgent writ of preliminary injunction based on the same grounds proffered in the said civil case — until the latter was also dismissed on March 20, 1964, with the consent of the parties because of the pendency then of the aforesaid petition for certiorari.

The movants further contend that "If there was delay, it was because petitioners' counsel happened to be more assertive ... a quality of the lawyers (which) is not to be condemned."

A counsel's assertiveness in espousing with candour and honesty his client's cause must be encouraged and is to be commended; what we do not and cannot countenance is a lawyer's insistence despite the patent futility of his client's position, as in the case at bar.

It is the duty of a counsel to advise his client, ordinarily a layman to the intricacies and vagaries of the law, on the merit or lack of merit of his case. If he finds that his client's cause is defenseless, then it is his bounden duty to advise the latter to acquiesce and submit, rather than traverse the incontrovertible. A lawyer must resist the whims and caprices of his client, and temper his client's propensity to litigate. A lawyer's oath to uphold the cause of justice is superior to his duty to his client; its primacy is indisputable.

The movants finally state that the "Petitioners have several counsel in this case but the participation of each counsel was rather limited implying that the decision of this Court ordering that "treble costs are assessed against the petitioners, which shall be paid by their counsel" is not clear. The word "counsel" may be either singular or plural in construction, so that when we said "counsel" we meant the counsels on record of the petitioners who were responsible for the

inordinate delay in the execution of the final judgment in the basic civil case 39407, after the Court of Appeals had rendered its aforementioned decision of November 15, 1962. And it is on record that the movants are such counsels. Atty. Bolinas, upon his own admission, "entered his appearance in the case at bar about the time the Court of First Instance of Manila dismissed the petitioners' Petition for Relief in Civil Case No. 39407," or about August 3, 1961 and even prior to the Court of Appeals decision above-mentioned. Atty. Baizas claims that he "became petitioners' counsel only in October, 1963 when he filed, with Atty. A.N. Bolinao, Jr. Civil Case No. 55292 before the Court of First Instance of Manila presided by the Hon. Judge Alikpala although it appears on record that the urgent motion to recall writ of execution filed by Mrs. Perez in the basic civil case 39407 on September 3, 1963, was over the signature of one Ruby Zaida of the law firm of "Crispin Baizas & Associates" as counsel for Mrs. Perez. It is to be recalled that the said urgent motion is the same motion discussed above, which, curiously enough, antedated by at least one month the lifting of the writ of preliminary injunction issued in civil case 7532.

ACCORDINGLY, the motion for partial reconsideration is denied. Our decision of May 22, 1968 is hereby modified in the sense that Attys. Crispin D. Baizas and A.N. Bolinao, Jr. shall pay jointly and severally the treble costs assessed against the petitioners.

Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, and Angeles, JJ., concur. Concepcion C.J., voted for denial of the motion for reconsideration. Fernando, J., took no part.

7. zubiri vs zubiri 18 scra 1157

G.R. No. L-16745 December 17, 1966

AURORA CAMARA VDA. DE ZUBIRI, plaintiff-appellee, -versus-

WENCESLAO ZUBIRI alias BEN, ET AL., defendants. WENCESLAO ZUBIRI alias BEN, defendant-appellant.

C. Jumapao for plaintiff and appellee.L. E. Petilla and Napoleon Dejores for defendant and appellant.

REGALA, J.:

This is an appeal from the order of the Court of First Instance of Lanao del Norte in Civil Case No. IL-219, dated September 15, 1959 denying the defendant-appellant's motion to postpone, and from its order of the same date denying the latter's petition to set aside judgment.

On April 17, 1959, the plaintiff-appellee, Aurora Camara Vda. de Zubiri, filed with the Court of First Instance of Lanao del Norte a complaint for the recovery of her alleged share in two commercial lots situated in Iligan City against the herein defendant-appellant, Wenceslao Ben Zubiri, and the Standard Vacuum Oil Co., the occupant of portions of the said properties. The plaintiff alleged that the said lots were conjugal, having been purchased by her and her late husband during their marriage, so that at least one-half of the same belonged to her "plus the equal share of the heir or heirs of the decedent." Moreover, the plaintiff claimed that the said parcels were in the possession of the defendant who, "unless he can

prove before this Honorable Court that he is a duly recognized natural child of the late Jesus Zubiri, [he] has no right, interest, and participation whatsoever over the abovementioned two lots."

On May 5, 1959, four (4) pleadings were filed in the aforementioned case, namely: 1) the herein appellant's answer which showed on its face that it was signed by the latter in his own behalf and unassisted by counsel; 2) a Stipulation of Facts, signed by the plaintiff, assisted by counsel, and the defendant, without such assistance; 3) a motion to render judgment on the pleadings, again signed by the plaintiff, duly assisted by counsel, and the defendant-appellant herein, signing alone, without benefit of counsel; and 4) the defendant Standard Vacuum Oil Company's answer to the above complaint.

On May 6, 1959, the trial court rendered judgment in accordance with the aforementioned Stipulation of Facts. Since in both the answer of the herein defendant-appellant and the stipulation of facts the latter admitted practically all the allegations of the complaint, the decision rendered in accordance therewith was actually in favor of the plaintiff.

On June 5, 1959, the defendant-appellant, for the first time thru counsel, filed with the trial court a petition to set aside judgment upon two grounds, to wit: first, the three pleadings filed on May 5, 1959, namely: appellant's answer, the stipulation of facts and the motion to render judgment on the pleadings were all prepared by the plaintiff's counsel and that he, the appellant, was made to sign all of them when he was ill and, therefore, incapable of realizing the full consequences of the act; and, second, that the plaintiff's cause of action was barred by a prior judgment. Under this latter ground, the appellant represented that the properties claimed by the plaintiff had already been determined and adjudicated to him in a previous decisions, under Special Proceedings No. IL-2 of the Court of First Instance of Lanao del Norte, which has since become final. Attached to this petition to set aside judgment were two affidavits of merit executed by the defendant-appellant himself and Vicente A. Miranda, the Clerk of Court of the Court of First Instance of Cebu before whom the three pleadings repudiated in the petition were subscribed. In the affidavit of Vicente A. Miranda, it was recited that the said pleadings were sworn to before him "at the resident of the affiant [defendant-appellant] at F. Ramos Street [Cebu City] because he was then sick and confined in bed and "suffering from fever, with an ice cap on his head and profusely perspiring."

On June 12, 1959, the trial court required the plaintiff to answer the abovementioned petition to set aside judgment within 15 days from receipt of the notice thereof and, thereafter, the said petition was set for hearing on August 29, 1959.

On August 22, 1959, or a week before the scheduled hearing, the counsel for the defendant-appellant filed with the trial court a motion to postpone the hearing set for the 29th on the ground that he, the defendant's counsel, could not release himself from his current employment as to be free to attend the said hearing. On August 29, 1959, however, the court denied the motion to postpone and proceeded with the scheduled hearing despite the absence of the defendant's counsel and, after hearing the plaintiff's argument, likewise denied the petition to set aside judgment. The subsequent motion for reconsideration thereof having been denied too, the defendant-appellant interposed the present appeal.

Although the allowance or denial of petitions for postponement and the setting aside of previous duly issued orders rest principally upon the sound discretion of the magistrate to whom they are addressed (Tell v. Tell, 48 Phil. 70; Macke v. Camps, 5 Phil. 185; Salva v. Palacio, et al., G.R. No. L-4247, January 30, 1952), the exercise of this power, however, ought to be prudent and just. It should always be predicated on the consideration that more than the mere convenience of the courts or of the parties of the case, the ends of justice and fairness would be served thereby. In the case at bar, this consideration seems to have been incompletely observed.

In the first place, the motion for postponement under consideration was the very first filed by the counsel for the appellant. It was filed with the court a full week prior to the scheduled hearing, with due and proper notice to the opposing party. Its ground was not unreasonable and hardly flimsy since it is not denied that then, the counsel for the appellant was under some contractual commitments from which he needed time to be release. Under these circumstances, it does seem that the denial of the motion prevented rather than serve the ends of justice.

Secondly, the appellant's petition to set aside judgment, which was verified and duly supported by two affidavits of merit, was grounded on very serious allegations, to wit: that it was the plaintiff's counsel who prepared and induced the defendant to sign all the pleadings upon which the assailed decision was based, including and particularly the said defendant's answer, that the dismissal of the same, in the absence of the petitioner and without affording him the chance to be heard thereon, indeed was incompatible with the exercise of sound judicial discretion. This Court is gravely concerned with the truth of the above accusation — something which, on account of the lower court's precipitate dismissal of the appellant's petition to set aside judgment is now hidden and undeterminable — particularly because the very face, tenor, and form of the appellant's alleged answer established a prima facie case, so to speak, for the petitioner. Thus, the said alleged answer reads in full:

ANSWER

Comes now the defendant, Wenceslao Zubiri alias Ben in his own behalf, and to this Honorable Court most respectfully states:

1. That the defendant admits the allegations contained in the complaint of the case.

2. That upon the request and suggestion of the defendant and with the conformity of the plaintiff and her lawyer, both parties, plaintiff and defendant have agreed to settle the above entitled case amicably and to submit a STIPULATION OF FACTS for the corresponding decision, with the aim in view to finish this case as soon as possible, and to avoid troubles in coming to Iligan City from Cebu City, losing precious time of this Hon. Court and unnecessary expenses in the future.

Cebu City (for Iligan City) Philippines, May 2, 1959.

(SGD.) Wenceslao (Ben) ZubiriWENCESLAO ZUBIRI alias Ben defendant

A copy of this ANSWER was delivered personally to Atty. C. Jumapao, counsel for the Plaintiff at Mango Avenue, 470, Cebu City, and another copy was served personally to defendant Standard Vacuum Oil Company, Cebu City, this 2nd day of May, 1959.

(SGD.) Wenceslao (Ben) ZubiriWENCESLAO ZUBIRI alias Ben

A mere glance at the above-quoted two-paragraph Answer should have prompted the trial court to wonder and inquire if the defendant was aware of what he was committing thereby. The admission in paragraph 1 of the same was so total and unqualified a repudiation of the defendant's own interest that indeed, especially as it was avowed in the said pleading that the defendant was unassisted by counsel, the trial

court should have insisted upon some assurance that the defendant was solely and fully accountable therefor. After the defendant represented under oath that the plaintiff's counsel was the principal author of the same, and the one who talked him into participating in it, the intervention of the lower court became an absolute necessity.

To be sure, the active participation of a lawyer in one party's affairs relating to a pending case in which the said lawyer is the counsel for the opposing party is brazenly unethical to say the least. The Canons of Legal Ethics very explicitly declare that "it is unprofessional to represent conflicting interests" (No. 6), and command that —

A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel. It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel and he should not undertake to advise him as to the law. (No. 9)

As we have already said in the case of Cantorne v. Ducusin, 57 Phil. 23, the simultaneous representation by a lawyer of both parties to a suit constitutes malpractice which should be severely condemned and the lawyer corrected by disciplinary action. If but for this consideration alone, the court below should have allowed the motion for postponement pleaded by the appellant and heard the merits of the latter's petition to set aside judgment.

Moreover, the affidavits of merit appended to the petition to set aside judgment recited that the defendant-appellant was seriously sick at the time he was made to sign and swear to the above three repudiated pleadings. To be sure, no less than the officer before whom the said pleadings were subscribed and sworn to admitted that this verification was conducted at the appellant's residence in Cebu where the latter was confined "suffering from fever, with an ice cap on his head and profusely perspiring." Under the circumstances, therefore, the mental capacity of the appellant to responsibly assent to commitments set forth in the same three pleadings became doubtful and the trial court should have exerted its earnest efforts to resolve the doubt. Especially so when account is taken of the fact that the subject matter of the suit was not just an insubstantial sum but properties allegedly worth some P165,000.00.

Finally, one of the grounds invoked by the defendant-appellant in his petition to set aside judgment was the alleged finality of a judicial decision in which the properties involved in the above complaint were involved in Special Proceedings No. IL-2 of the Court of First Instance of Lanao and that the decision in the said case declaring him as the sole heir of his deceased father, had since become final. In brief, the appellant maintained that inasmuch as the plaintiff-appellee's claim under her complaint was predicated upon her alleged right as an heir of the late Jesus Zubiri, the same was barred by the aforesaid judgment which, to repeat, allegedly held that the defendant-appellant was the sole and only heir of the same decedent.

By denying the appellant's petition to set aside judgment, therefore, the lower court failed to determine the truth and validity of the aforementioned ground. And yet, if it was true that the plaintiff's complaint was barred by a prior judgment then the order denying the petition to set aside judgment — in other words, maintaining the decision rendered upon the alleged stipulation of another decision that was totally inconsistent and irreconcilable with what was held, and had become final, under the decision in Special Proceedings No. IL-2, considering that in this latter case it was held that only the herein appellant was entitled to participate in the decedent's estate while in the decision upon the alleged stipulation of facts, the appellee as well was determined to be so entitled to participate.

Of course, the appellee assails the proceedings under Special Proceedings No. IL-2 as void on the ground of fraud. She claims that the herein appellant misrepresented in the said case that the late Jesus Zubiri had no other heir save him even as he knew that she, the plaintiff-appellee, was another such heir and that she was still living. This does not alter nor diminish the need for granting the appellant's petition to set aside judgment, however, and hearing the plaintiff's complaint upon its merits. The vice, if any, in Special Proceedings No. IL-2 may well be determined at such hearing.

IN VIEW OF ALL THE FOREGOING, the order of the court below denying the appellant's petition to set aside judgment is hereby revoked and set aside. Let the said petition be granted and the plaintiff-appellee's complaint under Civil Case No. IL-219 be heard or tried on its merits, after the herein appellant shall have been allowed to file his answer or the necessary responsive pleading thereto. No pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ., concur.

8. rubias vs batiller 51 scra 120

G.R. No. L-35702 May 29, 1973

DOMINGO D. RUBIAS, plaintiff-appellant, vs.ISAIAS BATILLER, defendant-appellee.

Gregorio M. Rubias for plaintiff-appellant.

Vicente R. Acsay for defendant-appellee.

TEEHANKEE, J.:

In this appeal certified by the Court of Appeals to this Court as involving purely legal questions, we affirm the dismissal order rendered by the Iloilo court of first instance after pre-trial and submittal of the pertinent documentary exhibits.

Such dismissal was proper, plaintiff having no cause of action, since it was duly established in the record that the application for registration of the land in question filed by Francisco Militante, plaintiff's vendor and predecessor interest, had been dismissed by decision of 1952 of the land registration court as affirmed by final judgment in 1958 of the Court of Appeals and hence, there was no title or right to the land that could be transmitted by the purported sale to plaintiff.

As late as 1964, the Iloilo court of first instance had in another case of ejectment likewise upheld by final judgment defendant's "better right to possess the land in question . having been in the actual possession thereof under a claim of title many years before Francisco Militante sold the land to the plaintiff."

Furthermore, even assuming that Militante had anything to sell, the deed of sale executed in 1956 by him in favor of plaintiff at a time when plaintiff was concededly his counsel of record in the land registration case involving the very land in dispute (ultimately decided adversely against Militante by the Court of Appeals' 1958 judgment affirming the lower court's dismissal of Militante's application for registration) was properly declared inexistent and void by the lower court, as decreed by Article 1409 in relation to Article 1491 of the Civil Code.

The appellate court, in its resolution of certification of 25 July 1972, gave the following backgrounder of the appeal at bar:

On August 31, 1964, plaintiff Domingo D. Rubias, a lawyer, filed a suit to recover the ownership and possession of certain portions of lot under Psu-99791 located in Barrio General Luna, Barotac Viejo, Iloilo which he bought from his father-in-law, Francisco Militante in 1956 against its present occupant defendant, Isaias Batiller, who illegally entered said portions of the lot on two occasions — in 1945 and in 1959. Plaintiff prayed also for damages and attorneys fees. (pp. 1-7, Record on Appeal). In his answer with counter-claim defendant claims the complaint of the plaintiff does not state a cause of action, the truth of the matter being that he and his predecessors-in-interest have always been in actual, open and continuous possession since time immemorial under claim of ownership of the portions of the lot in question and for the alleged malicious institution of the complaint he claims he has suffered moral damages in the amount of P 2,000.00, as well as the sum of P500.00 for attorney's fees. ...

On December 9, 1964, the trial court issued a pre-trial order, after a pre-trial conference between the parties and their counsel which order reads as follows..

'When this case was called for a pre-trial conference today, the plaintiff appeared assisted by himself and Atty. Gregorio M. Rubias. The defendant also appeared, assisted by his counsel Atty. Vicente R. Acsay.

A. During the pre-trial conference, the parties have agreed that the following facts are attendant in this case and that they will no longer introduced any evidence, testimonial or documentary to prove them:

1. That Francisco Militante claimed ownership of a parcel of land located in the Barrio of General Luna, municipality of Barotac Viejo province of Iloilo, which he caused to be surveyed on July 18-31, 1934, whereby he was issued a plan Psu-99791 (Exhibit "B"). (The land claimed contained an area of 171:3561 hectares.)

2. Before the war with Japan, Francisco Militante filed with the Court of First Instance of Iloilo an application for the registration of the title of the land technically described in psu-99791 (Exh. "B")opposed by the Director of Lands, the Director of Forestry and other oppositors. However, during the war with Japan, the record of the case was lost before it was heard, so after the war Francisco Militante petitioned this court to reconstitute the record of the case. The record was reconstituted on the Court of the First Instance of Iloilo and docketed as Land Case No. R-695, GLRO Rec. No. 54852. The Court of First

Instance heard the land registration case on November 14, 1952, and after the trial this court dismissed the application for registration. The appellant, Francisco Militante, appealed from the decision of this Court to the Court of Appeals where the case was docketed as CA-GR No. 13497-R..

3. Pending the disposal of the appeal in CA-GR No. 13497-R and more particularly on June 18, 1956, Francisco Militante sold to the plaintiff, Domingo Rubias the land technically described in psu-99791 (Exh. "A"). The sale was duly recorded in the Office of the Register of Deeds for the province of Iloilo as Entry No. 13609 on July 11, 1960 (Exh. "A-1").

(NOTE: As per deed of sale, Exh. A, what Militante purportedly sold to plaintiff-appellant, his son-in-law, for the sum of P2,000.00 was "a parcel of untitled land having an area Of 144.9072 hectares ... surveyed under Psu 99791 ... (and) subject to the exclusions made by me, under (case) CA-i3497, Land Registration Case No. R-695, G.L.R.O. No. 54852, Court of First Instance of the province of Iloilo. These exclusions referred to portions of the original area of over 171 hectares originally claimed by Militante as applicant, but which he expressly recognized during the trial to pertain to some oppositors, such as the Bureau of Public Works and Bureau of Forestry and several other individual occupants and accordingly withdrew his application over the same. This is expressly made of record in Exh. A, which is the Court of Appeals' decision of 22 September 1958 confirming the land registration court's dismissal of Militante's application for registration.)

4. On September 22,1958 the Court of appeals in CA-G.R. No. 13497-R promulgated its judgment confirming the decision of this Court in Land Case No. R-695, GLRO Rec. No. 54852 which dismissed the application for Registration filed by Francisco Militante (Exh. "I").

5. Domingo Rubias declared the land described in Exh. 'B' for taxation purposes under Tax Dec. No. 8585 (Exh. "C") for 1957; Tax Dec. Nos. 9533 (Exh. "C-1") and 10019 (Exh. "C-3")for the year 1961; Tax Dec. No. 9868 (Exh. "C-2") for the year 1964, paying the land taxes under Tax Dec. No. 8585 and 9533 (Exh. "D", "D-1", "G-6").

6. Francisco Militante immediate predecessor-in-interest of the plaintiff, has also declared the land for taxation purposes under Tax Dec. No. 5172 in 1940 (Exh. "E") for 1945; under Tax Dec. No. T-86 (Exh. "E-1") for 1948; under Tax Dec. No. 7122 (Exh. "2"), and paid the land taxes for 1940 (Exhs. "G" and "G-7"), for 1945 46 (Exh. "G-1") for 1947 (Exh. "G-2"), for 1947 & 1948 (Exh. "G-3"), for 1948 (Exh. "G-4"), and for 1948 and 1949 (Exh. "G-5").

7. Tax Declaration No. 2434 in the name of Liberato Demontaño for the land described therein (Exh. "F") was cancelled by Tax. Dec. No. 5172 of Francisco Militante (Exh. "E"). Liberato Demontaño paid the land tax under Tax Dec. No. 2434 on Dec. 20, 1939 for the years 1938 (50%) and 1959 (Exh. "H").

8. The defendant had declared for taxation purposes Lot No. 2 of the Psu-155241 under Tax Dec. Not. 8583 for 1957 and a portion of Lot No. 2, Psu-

155241, for 1945 under Tax Dec. No. 8584 (Exh. "2-A" Tax No. 8583 (Exh. "2") was revised by Tax Dec. No. 9498 in the name of the defendant (Exh. "2-B") and Tax Dec. No. 8584 (Exh. "2-A") was cancelled by Tax Dec. No. 9584 also in the name of the defendant (Exh. "2-C"). The defendant paid the land taxes for Lot 2, Psu-155241, on Nov. 9, 1960 for the years 1945 and 1946, for the year 1950, and for the year 1960 as shown by the certificate of the treasurer (Exh. "3"). The defendant may present to the Court other land taxes receipts for the payment of taxes for this lot.

9. The land claimed by the defendant as his own was surveyed on June 6 and 7,1956, and a planapproved by Director of Land on November 15, 1956 was issued, identified as Psu 155241 (Exh. "5").

10. On April 22, 1960, the plaintiff filed forcible Entry and Detainer case against Isaias Batiller in the Justice of the Peace Court of Barotac Viejo Province of Iloilo (Exh. "4") to which the defendant Isaias Batiller riled his answer on August 29, 1960 (Exh. "4-A"). The Municipal Court of Barotac Viejo after trial, decided the case on May 10, 1961 in favor of the defendant and against the plaintiff (Exh. "4-B"). The plaintiff appealed from the decision of the Municipal Court of Barotac Viejo which was docketed in this Court as Civil Case No. 5750 on June 3, 1961, to which the defendant, Isaias Batiller, on June 13, 1961 filed his answer (Exh. "4-C"). And this Court after the trial. decided the case on November 26, 1964, in favor of the defendant, Isaias Batiller and against the plaintiff (Exh. "4-D").

(NOTE: As per Exh. 4-B, which is the Iloilo court of first instance decision of 26 November 1964dismissing plaintiff's therein complaint for ejectment against defendant, the iloilo court expressly found "that plaintiff's complaint is unjustified, intended to harass the defendant" and "that the defendant, Isaias Batiller, has a better right to possess the land in question described in Psu 155241 (Exh. "3"), Isaias Batiller having been in the actual physical possession thereof under a claim of title many years before Francisco Militante sold the land to the plaintiff-hereby dismissing plaintiff's complaint and ordering the plaintiff to pay the defendant attorney's fees ....")

B. During the trial of this case on the merit, the plaintiff will prove by competent evidence the following:

1. That the land he purchased from Francisco Militante under Exh. "A" was formerly owned and possessed by Liberato Demontaño but that on September 6, 1919 the land was sold at public auction by virtue of a judgment in a Civil Case entitled "Edw J. Pflieder plaintiff vs. Liberato Demontaño Francisco Balladeros and Gregorio Yulo, defendants", of which Yap Pongco was the purchaser (Exh. "1-3"). The sale was registered in the Office of the Register of Deeds of Iloilo on August 4, 1920, under Primary Entry No. 69 (Exh. "1"), and a definite Deed of Sale was executed by Constantino A. Canto, provincial Sheriff of Iloilo, on Jan. 19, 1934 in favor of Yap Pongco (Exh. "I"), the sale having been registered in the Office of the Register of Deeds of Iloilo on February 10, 1934 (Exh. "1-1").

2. On September 22, 1934, Yap Pongco sold this land to Francisco Militante as evidenced by a notarial deed (Exh. "J") which was registered in the Registry of Deeds on May 13, 1940 (Exh. "J-1").

3. That plaintiff suffered damages alleged in his complaint.

C. Defendants, on the other hand will prove by competent evidence during the trial of this case the following facts:

1. That lot No. 2 of the Psu-1552 it (Exh. '5') was originally owned and possessed by Felipe Batiller, grandfather of the defendant Basilio Batiller, on the death of the former in 1920, as his sole heir. Isaias Batiller succeeded his father , Basilio Batiller, in the ownership and possession of the land in the year 1930, and since then up to the present, the land remains in the possession of the defendant, his possession being actual, open, public, peaceful and continuous in the concept of an owner, exclusive of any other rights and adverse to all other claimants.

2. That the alleged predecessors in interest of the plaintiff have never been in the actual possession of the land and that they never had any title thereto.

3. That Lot No. 2, Psu 155241, the subject of Free Patent application of the defendant has beenapproved.

4. The damages suffered by the defendant, as alleged in his counterclaim."' 1

The appellate court further related the developments of the case, as follows:

On August 17, 1965, defendant's counsel manifested in open court that before any trial on the merit of the case could proceed he would file a motion to dismiss plaintiff's complaint which he did, alleging that plaintiff does not have cause of action against him because the property in dispute which he (plaintiff) allegedly bought from his father-in-law, Francisco Militante was the subject matter of LRC No. 695 filed in the CFI of Iloilo, which case was brought on appeal to this Court and docketed as CA-G.R. No. 13497-R in which aforesaid case plaintiff was the counsel on record of his father-in-law, Francisco Militante. Invoking Arts. 1409 and 1491 of the Civil Code which reads:

'Art. 1409. The following contracts are inexistent and void from the beginning:

xxx xxx xxx

(7) Those expressly prohibited by law.

'ART. 1491. The following persons cannot acquire any purchase, even at a public auction, either in person of through the mediation of another: .

xxx xxx xxx

(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officers and employees connected with the administration of justice, the property and rights of in litigation or levied upon an execution before the court within whose jurisdiction or territory they exercise their respective functions; this prohibition includes the act of acquiring an assignment and shall apply tolawyers, with respect to the property and rights which may be the object of any litigation in which they may take part by virtue of their profession.'

defendant claims that plaintiff could not have acquired any interest in the property in dispute as the contract he (plaintiff) had with Francisco Militante was inexistent and void. (See pp. 22-31, Record on Appeal). Plaintiff strongly opposed defendant's motion to dismiss claiming that defendant can not invoke Articles 1409 and 1491 of the Civil Code as Article 1422 of the same Code provides that 'The defense of illegality of contracts is not available to third persons whose interests are not directly affected' (See pp. 32-35 Record on Appeal).

On October 18, 1965, the lower court issued an order disclaiming plaintiffs complaint (pp. 42-49, Record on Appeal.) In the aforesaid order of dismissal the lower court practically agreed with defendant's contention that the contract (Exh. A) between plaintiff and Francism Militante was null and void. In due season plaintiff filed a motion for reconsideration (pp. 50-56 Record on Appeal) which was denied by the lower court on January 14, 1966 (p. 57, Record on Appeal).

Hence, this appeal by plaintiff from the orders of October 18, 1965 and January 14, 1966.

Plaintiff-appellant imputes to the lower court the following errors:

'1. The lower court erred in holding that the contract of sale between the plaintiff-appellant and his father-in-law, Francisco Militante, Sr., now deceased, of the property covered by Plan Psu-99791, (Exh. "A") was void, not voidable because it was made when plaintiff-appellant was the counsel of the latter in the Land Registration case.

'2. The lower court erred in holding that the defendant-appellee is an interested person to question the validity of the contract of sale between plaintiff-appellant and the deceased, Francisco Militante, Sr.

'3. The lower court erred in entertaining the motion to dismiss of the defendant-appellee after he had already filed his answer, and after the termination of the pre-trial, when the said motion to dismiss raised a collateral question.

'4. The lower court erred in dismissing the complaint of the plaintiff-appellant.'

The appellate court concluded that plaintiffs "assignment of errors gives rise to two (2) legal posers — (1) whether or not the contract of sale between appellant and his father-in-law, the

late Francisco Militante over the property subject of Plan Psu-99791 was void because it was made when plaintiff was counsel of his father-in-law in a land registration case involving the property in dispute; and (2) whether or not the lower court was correct in entertaining defendant-appellee's motion to dismiss after the latter had already filed his answer and after he (defendant) and plaintiff-appellant had agreed on some matters in a pre-trial conference. Hence, its elevation of the appeal to this Court as involving pure questions of law.

It is at once evident from the foregoing narration that the pre-trial conference held by the trial court at which the parties with their counsel agreed and stipulated on the material and relevant facts and submitted their respective documentary exhibits as referred to in the pre-trial order, supra, 2 practically amounted to a fulldress trial which placed on record all the facts and exhibits necessary for adjudication of the case.

The three points on which plaintiff reserved the presentation of evidence at the-trial dealing with the source of the alleged right and title of Francisco Militante's predecessors, supra, 3 actually are already made of record in thestipulated facts and admitted exhibits. The chain of Militante's alleged title and right to the land as supposedly traced back to Liberato Demontaño was actually asserted by Militante (and his vendee, lawyer and son-in-law, herein plaintiff) in the land registration case and rejected by the Iloilo land registration court which dismissed Militante's application for registration of the land. Such dismissal, as already stated, was affirmed by the final judgment in 1958 of the Court of Appeals. 4

The four points on which defendant on his part reserved the presentation of evidence at the trial dealing with his and his ancestors' continuous, open, public and peaceful possession in the concept of owner of the land and the Director of Lands' approval of his survey plan thereof, supra, 5 are likewise already duly established facts of record, in the land registration case as well as in the ejectment case wherein the Iloilo court of first instance recognized the superiority of defendant's right to the land as against plaintiff.

No error was therefore committed by the lower court in dismissing plaintiff's complaint upon defendant's motion after the pre-trial.

1. The stipulated facts and exhibits of record indisputably established plaintiff's lack of cause of action and justified the outright dismissal of the complaint. Plaintiff's claim of ownership to the land in question was predicated on the sale thereof for P2,000.00 made in 1956 by his father-in- law, Francisco Militante, in his favor, at a time when Militante's application for registration thereof had already been dismissed by the Iloilo land registration court and was pending appeal in the Court of Appeals.

With the Court of Appeals' 1958 final judgment affirming the dismissal of Militante's application for registration, the lack of any rightful claim or title of Militante to the land was conclusively and decisively judicially determined. Hence, there was no right or title to the land that could be transferred or sold by Militante's purported sale in 1956 in favor of plaintiff.

Manifestly, then plaintiff's complaint against defendant, to be declared absolute owner of the land and to be restored to possession thereof with damages was bereft of any factual or legal basis.

2. No error could be attributed either to the lower court's holding that the purchase by a lawyer of the property in litigation from his client is categorically prohibited by Article 1491, paragraph

(5) of the Philippine Civil Code, reproduced supra; 6 and that consequently, plaintiff's purchase of the property in litigation from his client (assuming that his client could sell the same since as already shown above, his client's claim to the property was defeated and rejected) was void and could produce no legal effect, by virtue of Article 1409, paragraph (7) of our Civil Code which provides that contracts "expressly prohibited or declared void by law' are "inexistent and that "(T)hese contracts cannot be ratified. Neither can the right to set up the defense of illegality be waived."

The 1911 case of Wolfson vs. Estate of Martinez 7 relied upon by plaintiff as holding that a sale of property in litigation to the party litigant's lawyer "is not void but voidable at the election of the vendor" was correctly held by the lower court to have been superseded by the later 1929 case of Director of Lands vs. Abagat. 8 In this later case of Abagat, the Court expressly cited two antecedent cases involving the same transaction of purchase of property in litigation by the lawyer which was expressly declared invalid under Article 1459 of the Civil Code of Spain (of which Article 1491 of our Civil Code of the Philippines is the counterpart) upon challenge thereof not by the vendor-client but by the adverse parties against whom the lawyer was to enforce his rights as vendee thus acquired.

These two antecedent cases thus cited in Abagat clearly superseded (without so expressly stating the previous ruling in Wolfson:

The spouses, Juan Soriano and Vicente Macaraeg, were the owners of twelve parcels of land. Vicenta Macaraeg died in November, 1909, leaving a large number of collateral heirs but no descendants. Litigation between the surviving husband, Juan Soriano, and the heirs of Vicenta immediately arose, and the herein appellant Sisenando Palarca acted as Soriano's lawyer. On May 2, 1918, Soriano executed a deed for the aforesaid twelve parcels of land in favor of Sisenando Palarca and on the following day, May 3, 1918, Palarca filed an application for the registration of the land in the deed. After hearing, the Court of First Instance declared that the deed was invalid by virtue of the provisions of article 1459 of the Civil Code, which prohibits lawyers and solicitors from purchasing property rights involved in any litigation in which they take part by virtue of their profession. The application for registration was consequently denied, and upon appeal by Palarca to the Supreme Court, the judgement of the lower court was affirmed by a decision promulgated November 16,1925. (G.R. No. 24329, Palarca vs. Director of Lands, not reported.)

In the meantime cadastral case No. 30 of the Province of Tarlac was instituted, and on August 21, 1923, Eleuteria Macaraeg, as administratrix of the estate of Vicente Macaraeg, filed claims for the parcels in question. Buenaventura Lavitoria administrator of the estate of Juan Soriano, did likewise and so did Sisenando Palarca. In a decision dated June 21, 1927, the Court of First Instance, Judge Carballo presiding, rendered judgment in favor of Palarea and ordered the registration of the land in his name. Upon appeal to this court by the administration of the estates of Juan Soriano and Vicente Macaraeg, the judgment of the court below was reversed and the land adjudicated to the two estates as conjugal property of the deceased spouses. (G.R. No. 28226, Director of Lands vs. Abagat, promulgated May 21, 1928, not reported.) 9

In the very case of Abagat itself, the Court, again affirming the invalidity and nullity of the lawyer's purchase of the land in litigation from his client, ordered the issuance of a writ of possession for the return of the land by the lawyer to the adverse parties without reimbursement of the price paid by him and other expenses, and ruled that "the appellant Palarca is a lawyer and is presumed to know the law. He must, therefore, from the beginning, have been well aware of the defect in his title and is, consequently, a possessor in bad faith."

As already stated, Wolfson and Abagat were decided with relation to Article 1459 of the Civil Code of Spain then adopted here, until it was superseded on August 30, 1950 by the Civil Code of the Philippines whose counterpart provision is Article 1491.

Article 1491 of our Civil Code (like Article 1459 of the Spanish Civil Code) prohibits in its six paragraphs certain persons, by reason of the relation of trust or their peculiar control over the property, from acquiring such property in their trust or control either directly or indirectly and "even at a public or judicial auction," as follows: (1) guardians; (2) agents; (3) administrators; (4) public officers and employees; judicial officers and employees, prosecuting attorneys, and lawyers; and (6) others especially disqualified by law.

In Wolfson which involved the sale and assignment of a money judgment by the client to the lawyer, Wolfson, whose right to so purchase the judgment was being challenged by the judgment debtor, the Court, through Justice Moreland, then expressly reserved decision on "whether or not the judgment in question actually falls within the prohibition of the article" and held only that the sale's "voidability can not be asserted by one not a party to the transaction or his representative," citing from Manresa 10 that "(C)onsidering the question from the point of view of the civil law, the view taken by the code, we must limit ourselves to classifying as void all acts done contrary to the express prohibition of the statute. Now then: As the code does not recognize such nullity by the mere operation of law, the nullity of the acts hereinbefore referred to must be asserted by the person having the necessary legal capacity to do so and decreed by a competent court." 11

The reason thus given by Manresa in considering such prohibited acquisitions under Article 1459 of the Spanish Civil Code as merely voidable at the instance and option of the vendor and not void — "that the Code does not recognize such nullity de pleno derecho" — is no longer true and applicable to our own Philippine Civil Code whichdoes recognize the absolute nullity of contracts "whose cause, object, or purpose is contrary to law, morals, good customs, public order or public policy" or which are "expressly prohibited or declared void by law" and declares such contracts "inexistent and void from the beginning." 12

The Supreme Court of Spain and modern authors have likewise veered from Manresa's view of the Spanish codal provision itself. In its sentencia of 11 June 1966, the Supreme Court of Spain ruled that the prohibition of Article 1459 of the Spanish Civil Code is based on public policy, that violation of the prohibition contract cannot be validated by confirmation or ratification, holding that:

... la prohibicion que el articulo 1459 del C.C. establece respecto a los administradores y apoderados, la cual tiene conforme a la doctrina de esta Sala, contendia entre otras, en S. de 27-5-1959, un fundamento de orden moral lugar la violacion de esta a la nulidad de pleno derecho del acto o negocio

celebrado, ... y prohibicion legal, afectante orden publico, no cabe con efecto alguno la aludida retification ... 13

The criterion of nullity of such prohibited contracts under Article 1459 of the Spanish Civil Code (Article 1491 of our Civil Code) as a matter of public order and policy as applied by the Supreme Court of Spain to administrators and agents in its above cited decision should certainly apply with greater reason to judges, judicial officers, fiscals and lawyers under paragraph 5 of the codal article.

Citing the same decisions of the Supreme Court of Spain, Gullon Ballesteros, his "Curso de Derecho Civil, (Contratos Especiales)" (Madrid, 1968) p. 18, affirms that, with respect to Article 1459, Spanish Civil Code:.

Que caracter tendra la compra que se realice por estas personas? Porsupuesto no cabe duda de que el caso (art.) 1459, 40 y 50, la nulidad esabsoluta porque el motivo de la prohibicion es de orden publico. 14

Perez Gonzales in such view, stating that "Dado el caracter prohibitivo delprecepto, la consequencia de la infraccion es la nulidad radical y ex lege." 15

Castan, quoting Manresa's own observation that.

"El fundamento do esta prohibicion es clarisimo. No sa trata con este precepto tan solo de guitar la ocasion al fraude; persiguese, ademasel proposito de rodear a las personas que intervienen en la administrcionde justicia de todos los retigios que necesitan pora ejercer su ministerio librandolos de toda suspecha, que aunque fuere in fundada, redundura endescredito de la institucion." 16 arrives at the contrary and now accepted view that "Puede considerace en nuestro derecho inexistente 'o radicalmente nulo el contrato en los siguentes cases: a) ...; b) cuando el contrato se ha celebrado en violacion de una prescripcion 'o prohibicion legal, fundada sobre motivos de orden publico(hipotesis del art. 4 del codigo) ..." 17

It is noteworthy that Caltan's rationale for his conclusion that fundamental consideration of public policy render void and inexistent such expressly prohibited purchase (e.g. by public officers and employees of government property intrusted to them and by justices, judges, fiscals and lawyers of property and rights in litigation and submitted to or handled by them, under Article 1491, paragraphs (4) and (5) of our Civil Code) has been adopted in a new article of our Civil Code, viz, Article 1409 declaring such prohibited contracts as "inexistent and void from the beginning." 18

Indeed, the nullity of such prohibited contracts is definite and permanent and cannot be cured by ratification. The public interest and public policy remain paramount and do not permit of compromise or ratification. In his aspect, the permanent disqualification of public and judicial officers and lawyers grounded on public policy differs from the first three cases of guardians, agents and administrators (Article 1491, Civil Code), as to whose transactions it had been opined that they may be "ratified" by means of and in "the form of a new contact, in which cases its validity shall be determined only by the circumstances at the time the execution of such new contract. The causes of nullity which have ceased to exist cannot impair the validity of the new contract. Thus, the object which was illegal at the time of the first contract, may have already become lawful at the time of the ratification or second contract; or the service which was impossible may have become possible; or the intention which could not be ascertained may

have been clarified by the parties. The ratification or second contract would then be valid from its execution; however, it does not retroact to the date of the first contract." 19

As applied to the case at bar, the lower court therefore properly acted upon defendant-appellant's motion to dismiss on the ground of nullity of plaintiff's alleged purchase of the land, since its juridical effects and plaintiff's alleged cause of action founded thereon were being asserted against defendant-appellant. The principles governing the nullity of such prohibited contracts and judicial declaration of their nullity have been well restated by Tolentino in his treatise on our Civil Code, as follows:

Parties Affected. — Any person may invoke the in existence of the contract whenever juridical effects founded thereon are asserted against him. Thus, if there has been a void transfer of property, the transferor can recover it by the accion reinvindicatoria; and any prossessor may refuse to deliver it to the transferee, who cannot enforce the contract. Creditors may attach property of the debtor which has been alienated by the latter under a void contract; a mortgagee can allege the inexistence of a prior encumbrance; a debtor can assert the nullity of an assignment of credit as a defense to an action by the assignee.

Action On Contract. — Even when the contract is void or inexistent, an action is necessary to declare its inexistence, when it has already been fulfilled. Nobody can take the law into his own hands; hence, the intervention of the competent court is necessary to declare the absolute nullity of the contract and to decree the restitution of what has been given under it. The judgment, however, will retroact to the very day when the contract was entered into.

If the void contract is still fully executory, no party need bring an action to declare its nullity; but if any party should bring an action to enforce it, the other party can simply set up the nullity as a defense.20

ACCORDINGLY, the order of dismissal appealed from is hereby affirmed, with costs in all instances against plaintiff-appellant. So ordered.

Makalintal, Zaldivar, Castro,. Fernando, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.

9. fornilda vs branch 164 166scra 281

G.R.No. L-72306 January 24, 1989

DAVID P. FORNILDA, JUAN P. FORNILDA, EMILIA P. FORNILDA OLILI, LEOCADIA P. FORNILDA LABAYEN and ANGELA P. FORNILDA GUTIERREZ, petitioners, vs.THE BRANCH 164, REGIONAL TRIAL COURT IVTH JUDICIAL REGION, PASIG, JOAQUIN C. ANTONIA Deputy Sheriff, RTC, 4JR Tanay, Rizal and ATTY. SERGIO AMONOY, respondents.

Irene C. Ishiwata for petitioner A. Gutierrez.

R E S O L U T I O N

MELENCIO-HERRERA, J.:

On 5 October 1988, this Court rendered a Decision, the dispositive portion of which reads:

WHEREFORE, certiorari is granted; the Order of respondent Trial Court, dated 25 July 1985, granting a Writ of Possession, as well as its orders, dated 25 April 1986 and 16 May 1986, directing and authorizing respondent Sheriff to demolish the houses of petitioners Angela and Leocadia Fornilda are hereby set aside, and the Temporary Restraining Order heretofore issued, is made permanent. The six (6) parcels of land herein controverted are hereby ordered returned to petitioner unless some of them have been conveyed to innocent third persons.

With respect to petitioners' prayer for disbarment by reason of malpractice of Respondent Amonoy embodied in their pleading entitled "Mahigpit na Musiyun para Papanagutin Kaugnay ng Paglalapastangan" and "Masasamang Gawain (Mal-Practices)" and "Paninindigan (Memorandum)" both filed on 16 June 1988, Respondent Sergio 1. Amonoy is hereby required, within fifteen (15) days from notice hereof, to submit an answer thereto. After receipt of the same, a new docket number will be assigned to the case.

Costs against respondent, Sergio I. Amonoy. (pp. 497-498, Rollo)

The case for disbarment is dealt with in a separate Resolution of even date in AC No. 3277.

On 25 October 1988 respondent Amonoy filed his Motion for Reconsideration, followed by his "Supplemental Arguments in Support of Motion for Reconsideration" dated 8 November 1988. In essence, he advances the following points:

1) The transaction involved herein being a mortgage, Article 1491[51 of the Civil Code does not apply. Consequently, the mortgage contract executed in favor of respondent Amonoy is valid;

2) Article 1491[5] does not apply to foreclosure sales in favor of judgment creditors;

3) The instant petition is barred by res judicata;

4) The jurisdiction of the foreclosing court does not depend on the alleged invalidity of the mortgage being foreclosed. Thus, the lower court had jurisdiction over the foreclosure case, the alleged invalidity of the contract merely serving as a ground for the dismissal of the petition due to lack of cause of action;

5) Under BP 129, only the Court of Appeals has original and exclusive jurisdiction over actions for annulment of judgment.

We find the foregoing submissions without merit.

Respondent Amonoy avers that at the time of the execution of the mortgage on 20 January 1965, subject properties were no longer "properties in litigation" since the Project of Partition (as signed by the intestate heirs) covering said properties was approved by the lower Court as early as 12 January 1965.

This argument must fail for the reason that while the Project of Partition was approved on 12 January 1965, it was only on 6 August 1969, and after all charges against the estate had been paid, that the estate was declared closed and terminated. In fact, by his own admission, he had acted as counsel from 1959 until 1968 (Comment, p. 145, Rollo). Thus, at the time of the execution of the mortgage contract, the Controverted Parcels were still in litigation and a fiduciary relationship of lawyer and client, which Article 1491[5] precisely seeks to protect, still existed between the parties. To state that mortgages are not included within the prohibition is to open the door to an indirect circumvention of that statutory injunction, acquisition of the property being merely postponed till eventual foreclosure.

Respondent asserts further that Article 1491[5] does not apply to judgment creditors of which, he claims, he was one. Under ordinary circumstances, the argument of respondent could be considered plausible. Unfortunately, however, as heretofore explained, the mortgage was executed in violation of Article 1491[5] so that this Article has a direct bearing on this case and respondent can not escape its provision. Having violated the same, he cannot be considered in the general run of a judgment creditor.

Respondent likewise stresses that res judicata should apply herein since it was a little more than four (4) years from the 22 July 1981 Decision of the Court of Appeals in the Annulment Case (CA-G.R. No. 63214-R) when this Petition was filed. Consequently, he contends that this Petition should be dismissed since it merely raises the same issues brought up and already resolved in the earlier case.

The question of res judicata and jurisdiction of the lower Court over the subject matter of the Foreclosure Case had been amply discussed in the Decision sought to be reconsidered, citing the case of Municipality of Antipolo vs. Zapanta (133 SCRA 822 [1984]), and we find no need to dwell on them again.

Neither of the cases cited by respondent to support his contention that the lower Court had jurisdiction over the Foreclosure Case notwithstanding the invalidity of the mortgage contract, viz., Florentino vs. Galera (5 SCRA 500 [1962] and Talosig vs. Vda. de Nieba (43 SCRA 472 [1972]), refers to a void subject matter over which the Courts involved could not acquire jurisdiction.

Finally, respondent movant submits that only the Court of Appeals has original and exclusive jurisdiction over actions for annulment of judgments of the lower Court under BP Blg. 129 so that the Supreme Court should not take cognizance of the instant case. The focal issue raised herein, however, i.e., whether or not the acquisition by respondent of the property in litigation is valid or not, is a pure question of law. As such, this Court is vested with jurisdiction to take cognizance of this case.

ACCORDINGLY, private respondent's Motion for Reconsideration is hereby DENIED and this denial is FINAL.

SO ORDERED.

Paras, Sarmiento and Regalado, JJ., concur.

Padilla, J., took no part.

10. ordoño vs eduarte 207 scra 229

G.R. No. L-39012 January 31, 1975

AVELINO ORDOÑO, petitioner, vs.HON. ANGEL DAQUIGAN, presiding Judge of the Court of First Instance of La Union, Branch I and CONRADO V. POSADAS, First Assistant Provincial Fiscal of La Union and the PEOPLE OF THE PHILIPPINES, respondents.

Pedro G. Peralta for petitioner.

Conrado V. Posadas for and in behalf of other respondents.

AQUINO, J.:

Avelino Ordoño was charged in the municipal court of San Gabriel, La Union with having raped his daughter, Leonora, on October 11, 1970. The verified complaint dated November 7, 1973 was signed by the twenty four year old victim (Criminal Case No. 104).

In support of that complaint, Catalina Balanon Ordoño, the mother of Leonora, executed a sworn statement wherein she disclosed that on that same date, October 11th, Leonora had apprised her of the outrage but no denunciation was filed because Avelino Ordoño threatened to kill Leonora and Catalina (his daughter and wife, respectively) if they reported the crime to the police.

Catalina Ordoño in her sworn statement further revealed that her husband had also raped their other daughter, Rosa, on March 25 and April 7, 1973. He was charged in court with that offense.

Catalina Ordoño said that the rape committed by Avelino Ordoño against Leonora was mentioned during the investigation and trial of Avelino Ordoño for the rape committed against Rosa Ordoño. Catalina's statement on this point is as follows:

Q — Why did you not file the complaint against your husband concerning the incident involving Leonora Ordoño?

A — We Also narrated the incident during the investigation in the Fiscal's Office and also when I testified in court in the case of my daughter Rosa Ordoño but then my daughter Leonora Ordoño was still in Manila, sir.

During the preliminary investigation of the rape committed against Leonora, Catalina manifested that she was no longer afraid to denounce Avelino Ordoño because he was already in jail for having raped Rosa Ordoño.

The case against Avelino Ordoño, where Leonora Ordoño was the complainant, was elevated to the Court of First Instance of La Union, San Fernando, Branch (Criminal Case No. 356). On May 29, 1974 the Fiscal presented Catalina Ordoño as the second prosecution witness. After she had stated her personal circumstances, the defense counsel objected to her competency. He invoked the marital disqualification rule found in Rule 130 of the Rules of Court which provides:

Sec. 20. Disqualification by reason of interest or relationship. — The following persons cannot testify as to matters in which they are interested, directly or indirectly, as herein enumerated:

xxx xxx xxx

(b) A husband cannot be examined for or against his wife without her consent; nor a wife for or against her husband without his consent, except in a civil case by one against the other or in a criminal case for a crime committed by one against the other;

xxx xxx xxx

Counsel claimed that Avelino Ordoño had not consented expressly or impliedly to his wife's testifying against him.

The trial court overruled the objection. After the denial of Avelino Ordoño's motion for the reconsideration of the adverse ruling, he filed the instant action for certiorari and prohibition. He was allowed to sue in forma pauperis.

The issue is whether the rape committed by the husband against his daughter is a crime committed by him against his wife within the meaning of the exception found in the marital disqualification rule.

Should the phrase "in a criminal case for a crime committed by one against the other" be restricted to crimes committed by one spouse against the other, such as physical injuries, bigamy, adultery or concubinage, or should it be given a latitudinarian interpretation as referring to any offense causing marital discord?

There is a dictum that "where the marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquility which may be disturbed, the reason based upon such harmony and tranquility fails. In such a case identity of interests disappears and the consequent danger of perjury based on that identity is non-existent. Likewise, in such a situation, the security and confidences of private life which the law aims at protecting will be nothing but ideals which, through their absence, merely leave a void in the unhappy home" (People vs. Francisco, 78 Phil. 694, 704).

In the Francisco case, the wife, as a rebuttal witness, was allowed to testify against the husband who was charged with having killed his son and who testified that it was the wife who killed their son.

We think that the correct rule, which may be adopted in this jurisdiction, is that laid down in Cargill vs. State, 35 ALR 133, 220 Pac. 64, 25 Okl. 314, wherein the court said:

The rule that the injury must amount to a physical wrong upon the person is too narrow; and the rule that any offense remotely or indirectly affecting domestic harmony comes within the exception is too broad. The better rule is that, when an offense directly attack or directly and vitally impairs, the conjugal relation, it comes within the exception to the statute that one shall not be a witness against the other except in a criminal prosecution for a crime committed (by) one against the other.

Using the criterion thus judiciously enunciated in the Cargill case, it can be concluded that in the law of evidence the rape perpetrated by the father against his daughter is a crime committed by him against his wife (the victim's mother). *

That conclusion is in harmony with the practices and traditions of the Filipino family where, normally, the daughter is close to the mother who, having breast-fed and reared her offspring, is always ready to render her counsel and assistance in time of need. Indeed, when the daughter is in distress or suffers moral or physical pain, she usually utters the word Inay (Mother) before she invokes the name of the Lord.

Thus, in this case, when Avelino Ordoño, after having raped his daughter Leonora in the early morning of October 11, 1970, tried to repeat the beastly act in the evening of that date, Leonora shouted "Mother" and, on hearing that word, Avelino desisted.

That the rape of the daughter by the father, an undeniably abominable and revolting crime with incestuous implications, positively undermines the connubial relationship, is a proposition too obvious to require much elucidation.

In Wilkinson vs. People, 282 Pac. 257, it was held that the wife was a competent witness against the husband in a prosecution for rape committed by the husband against his stepdaughter, who is the wife's natural daughter because the crime was "an outrage upon nature in its dearest and tenderest relations as well as a crime against humanity itself". The court adopted the interpretation that "a criminal action or proceeding for a crime committed by one against the other" may refer to a crime where the wife is the individual particularly and directly injured or affected by the crime for which the husband is being prosecuted (See Dill vs. People, 19 Colo. 469, 475, 36 Pac. 229, 232).

In State vs. Chambers, 87 Iowa 1, 53 N.W. 1090, it was held under the statutory provision that husband or wife shall in no case be a witness for or against the other, except in a criminal proceeding for a crime committed by one against the other, that the wife was competent to testify against the husband in a case where he was prosecuted for incest committed against his stepdaughter.

In State vs. Shultz, 177 Iowa 321, 158 N.W. 539, it was held that the wife may testify against the husband in a case where he was prosecuted for incest committed against their eleven-year old

daughter because incest is a "crime committed against the wife". (See Owens vs. State, 32 Neb. 167, 49 N.W. 226; Lord vs. State, 23 N.W. 507, 17 Neb. 526; People vs. Segura, 60 Phil. 933).

The trial court did not err in holding that Catalina Ordoño could testify against her husband, Avelino Ordoño, in the case where he is being tried for having raped their daughter, Leonora.

WHEREFORE, the petition for certiorari and prohibition is dismissed. No costs.

SO ORDERED.

Makalintal, C.J., Castro, Fernando, Teehankee, Barredo, Makasiar, Esguerra, Fernandez and Muñoz Palma, JJ., concur.

Antonio, J., is on leave.

11. cuaresma vs daquiz 63 scra 257

G.R. No. L-35113 March 25, 1975

EUGENIO CUARESMA, petitioner, vs.MARCELO DAQUIS, PHHC, CESAR NAVARRO, NICANOR GUEVARRA, Sheriff of Quezon City or his Deputy and JUDGE PACIFICO P. DE CASTRO, respondents. ATTORNEY MACARIO O. DIRECTO, respondent.

R E S O L U T I O N

FERNANDO, J.:ñé+.£ªwph!1

The predicament in which respondent Macario O. Directo, a member of the Philippine bar, now finds himself is one of his own making. In a petition for certiorari filed with this Court on behalf of one Eugenio Cuaresma, he included the following categorical allegations: "4. That your petitioner has no knowledge of the existence of said case (Civil Case No. 12176, CFI of Rizal, Quezon City Branch) aforecited between the respondents Marcelo Daquis, PHHC, and Cesar Navarro, and wherein the respondent Judge, [gave] due course to the complaint, and the subject matter in litigation; 5. That on May 26, 1972, the respondent Judge issued an order of demolition, ordering the respondent Sheriff of Quezon City or his deputy to demolish the house of your petitioner etc., and on the same day May 26, 1972, the Sheriff of Quezon City through his deputy [gave] three (3) days to your petitioner to remove his house or face demolition, ... ;6 ... 7. That your petitioner was not given a day in court to present his side of the case, in violation of law, and of the dictum of due process of the constitution, ... " 1 Thereafter, after receipt of the comments of respondents, it turned out, as set forth in a resolution of this Court of August 4, 1972, "that petitioner was fully aware of the existence of said civil case because on

December 14, 1971 Atty. Macario Directo, as counsel of petitioner, addressed to respondent Marcelo Daquis a letter which indicates that both counsel and petitioner were aware of the existence of the case. It also appears that, before respondents Marcelo Daquis and Cesar Navarro filed a motion for a writ of Possession in Civil Case No. Q-12176, petitioner Eugenio Cuaresma, along with the other occupants of the lot in question, was given thirty (30) days notice to vacate the premises which period was even extended for another thirty (30) days, but that, despite that notice, petitioner Eugenio Cuaresma refused to vacate the lot involved in the case. It further appears that on May 3, 1972, Atty. Macario Directo, as counsel for petitioner, filed a motion for intervention in the aforementioned Civil Case No. Q-12176; and on May 13, 1972, same counsel filed a motion to quash or recall the writ of execution, and an opposition to the issuance of a writ of demolition. On May 22, 1972, respondent Judge Pacifico de Castro issued an order denying the motion to intervene as well as the motion to quash or recall the writ of execution." 2 It was then set forth in such resolution that there was no truth to the allegation that on May 27, 1972, the date of the filing of the petition for certiorari in the present case, petitioner had no knowledge of the existence of Civil Case No. 12176.

Respondent Macario O. Directo was then given ten days to show cause why no disciplinary action should be taken against him for deliberately making false allegations in such petition. Thereafter, on August 16, 1972, came a pleading which he entitled Compliance. This is his explanation: "What your petitioner honestly meant when he alleged that he [has] no knowledge of the existence of said Civil Case No. 12176, CFI of Rizal, Quezon City Branch, was from the time the plaintiff Marcelo Daquis instituted the said case in June 1968 up to and after the time the Court issued the decision in the year 1970. The plaintiff Marcelo Daquis entered into a conditional contract of sale of the lot involved in said Civil Case No. 12176 with the PHHC. There were four (4) purchasers, the plaintiff, two others, and your petitioner. Because of the requirement of the PHHC that only one of them should enter into the contract, Marcelo Daquis was chosen by the others to enter into the same. Since this was a sale on installment basis, by agreement of all the purchasers, duly acknowledged by the PHHC, the monthly dues of the petitioner and the two others, were remitted to Marcelo Daquis, who in turn remits the same to the PHHC. In June 1968 plaintiff Marcelo Daquis instituted Civil Case No. 12176 in the CFI of Quezon City. From June 1968 up to the time and after the decision was issued by the court, plaintiff Marcelo Daquis never informed your petitioner of the said case." 3 He reiterated in a later paragraph that all he wanted to convey was that his knowledge of the aforesaid civil case came only after the decision was issued. He closed his Compliance with the plea that if there were any mistake committed, "it had been an honest one, and would say in all sincerity that there was no deliberate attempt and intent on his part of misleading this Honorable Court, honestly and totally unaware of any false allegation in the petition." 4

The above explanation lends itself to the suspicion that it was a mere afterthought. It could very well be that after his attention was called to the misstatements in his petition, he decided on such a version as a way out. That is more than a bare possibility. There is the assumption though of good faith. That is in his favor. Moreover, judging from the awkwardly worded petition and even his compliance quite indicative of either carelessness or lack of proficiency in the handling of the English language, it is not unreasonable to assume that his deficiency in the mode of expression contributed to the inaccuracy of his statements. While a mere disclaimer of intent certainly cannot exculpate him, still, in the spirit of charity and forbearance, a penalty of reprimand would suffice. At least, it would serve to impress on respondent that in the future he should be much more careful in the preparation of his pleadings so that the least doubt as to his intellectual honesty cannot be entertained. Every member of the bar should realize that candor in the dealings with the Court is of the very essence of honorable membership in the profession.

WHEREFORE, Attorney Macario O. Directo is reprimanded. Let a copy of this resolution be spread on his record.

Barredo, Antonio, Fernandez and Aquino, JJ., concur.1äwphï1.ñët

12. yangzon vs salandanan 68 scra 4213. andres vs cabrera 127 scra 80214. garcia vs alconsel 111 scra 178

A.M. No.2499-CCC (OCA-101) January 30, 1982

RAYMUNDO G. GARCIA, complainant, -versus-JUDGE AMANTE Q. ALCONCEL of the Circuit Criminal Court of Manila, respondent.

R E S O L U T I O N

AQUINO, J.:

Justice Lorenzo Relova, the Court Administrator, submitted the following report on this case:

This administrative complaint stemmed from a decision dated July 11, 1980 which acquitted the accused Isabelo T. Crisostomo in Criminal Case Nos. CMVI-2329, CCC-VI- 2330 and CCC-VI-2331. The dispositive portion of the decision rendered by respondent Judge Amante Q. Alconcel reads:

WHEREFORE, the Court finds the accused Isabelo T. Crisostomo not guilty of the violations charged in an these three cases and hereby acquits him therefrom, with costs de oficio. The bail bonds filed by stud accused for his provisional liberty are hereby and released.

Pursuant to the provisions of Section 13, R. A. No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practice Act, and under which the accused has been suspended by this Court in an Order dated October 22, 1976, said accused is hereby ordered reinstated to the position of President of the Philippine College of Commerce, now known as the Polytechnic University of the Philippines, from which he has been suspended. By virtue of said reinstatement, he is entitled to receive the salaries and other benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him.

The bail bonds filed by the accused for his provisional liberty in these cases are hereby cancelled and released.

The verified complaint alleged that Judge Alconcel violated Section 13 of the Anti- Graft and Corrupt Practices Act when upon acquitting the accused Crisostomo payment of his salaries and other benefits were also ordered; violated the Constitution when he ordered the reinstatement of Crisostomo notwithstanding the fact that President Ferdinand E. Marcos had already appointed Dr. Pablo T. Mateo Jr. as the permanent president of the Polytechnic University of the Philippines for a term of six (6) years; and violated the Revised Penal Code when he rendered an unjust judgment in said cases, actuated as he was with resentment and malice towards the prosecution witnesses who had denounced him to the Supreme Court.

On the charge of violating Section 13 of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, respondent explained that his judgment of reinstatement and payment of salaries are subject to the condition that no administrative proceedings have been filed against Crisostomo, as in fact, he had denied in an order dated August 26,1980 a motion for the issuance of a writ of execution as follows:

This is a motion praying that a writ of execution be issued directing the Board of Regents and the Secretary of the Polytechnic University of the Philippines, ordering them to reinstate the accused to his position as President of the said University. It is admitted that administrative proceedings have been filed against said accused which are still pending investigation.

Undoubtedly, the reinstatement of the accused and his entitlement to the salaries and benefits which he failed to receive during suspension were based on Section 13 of R. A. No. 3019, as amended. The said section provides that such reinstatement and entitlement to salaries and benefits are dependent upon the non-existed of administrative proceedings filed against the accused.

Moreover, the situation presently obtaining in the Polytechnic University of the Philippines is such that a permanent head has already been appointed by the President of the Philippines, a fact which has never been ventilated during the trial of these cases.

In the opinion of the Court, said situation may require a determination as to who is entitled to the position of President of the Polytechnic University of the Philippines which is not within the province of the Circuit Criminal Court.

Wherefore, the motion at bar is denied, for lack of merit.

With respect to the bond charge, respondent argued that at the start of the trial he suspended Crisostomo pursuant to Section 13 of RA No. 3019. Upon acquittal, however, he had to order his reinstatement. But, considering that President Marcos has appointed another to the position, 'then the accused Isabelo T. Crisostomo who had been ordered reinstated must 'vacate' his office as mandated by Section 9, Article XVII.

Relative to the charge of violation of the Revised Penal Code, he averred that the same is a wild accusation 'which could only come from a prejudiced and guilt-oriented mind.

It is clearly manifest that there is nothing wrong in respondent's decision which ordered reinstatement and payment of salaries after the acquittal of the accused Crisostomo. They are the necessary consequence when the Court found him innocent of the crimes charged; otherwise, it would be inconsistent to a finding of not guilty. Section 13 of RA 3019 provides:

'SEC. 13. ... but if he is acquitted he shall be entitled to reinstatement and to the salaries and benefits which he failed to recieve during suspension, unless in the meantime administrative proceedings have been filed against him' (Emphasis supplied).

And, the fact that somebody was appointed to the position of President of the University is of no moment. It would only mean that the accused Crisostomo must have to vacate the office as mandated by Section 9, Article XVI I of the Constitution which provides:

SEC. 9. All officials and employees in the existing Government of the Republic of the Philippines shall continue in office until otherwise provided by law or decreed by the incumbent President of the Philippines, but all officials whose appointments are by this Constitution vested in the Prime Minister shall vacate their respective offices upon the appointment and qualification of their successors.

At any rate, it is a wen established pronouncement by the Court that 'only after the appellate court holds in a final judgment that a trial judge's alleged errors were committed deliberately and in bad faith may a charge of knowingly rendering an unjust decision be levelled against a trial judge. (Gahol vs. Riodique, 64 SCRA 494; Sta. Maria vs. Ubay, 87 SCRA 179).

Wherefore, the undersigned respectfully recommends the dismissal of these charges for lack of merit.

Complainant Garcia was the executive dean of the Polytechnic University of the Philippines, formerly the Philippine College of Commerce, of which Crisostomo used to be the president. Garcia retired.

At the trial of the anti-graft case, Crisostomo testified that Garcia was relieved of his duties as acting dean of undergraduate studies because he "was always sick, lying on (in) his chair and unable to attend to his duties, thereby causing him to lose the privileges which attached to the position of acting dean.

After a careful consideration of the complaint and respondent's comment thereon and the Court Administrator's evaluation thereof, we find that there is no merit in the complaint. Hence, it is hereby dismissed.

Contempt incident against lawyer Jose A. Subida.—Complainant Garcia was asked to file a reply to Judge Alconcel's comment. Lawyer Jose A. Subida, 47, admitted to the bar in 1974, filed in this Court an abrasive and intemperately worded reply containing the following "innuendoes and depreciatory" comments casting contempt and ridicule on respondent judge:

... Complaint would have told him on his face then that absolute loss of confidence in the capacity of respondent judge to conduct trial ...

... Atty. Subida who was aghast at the aberrant behavior of respondent judge ... What kind of judge does the country have here?

... He promulgated his judgment in the criminal cases against the accused without acting on the said motion or petition. What kind of judicial proceeding is this?

... Is being called to the witness stand in the courts an occasion for the delivery of a Plaza Miranda style of speech?

Complaint cannot say whether or not respondent judge's explanation is a joke. But if it were, the joke could make the members of the Supreme Court die laughing. If respondent judge is in earnest, his explanation smacks of intellectual dishonesty. It is an egregious affront to the intelligence of the Honorable members of the Supreme Court.

Does respondent judge know that once a judgment has become final and executory, the prevailing party is entitled to a writ of execution and the issuance of the writ is the court's ministerial duty ...

... His said order is itself a judicial aberration.

... Unavoidably, this makes respondent judge more ignorant of current events than the rest of mankind.

This contention of respondent judge betrays his lack of appreciation of his duty as a judge. Whether he knows it or not, respondent judge is an investigator of facts.

His resort to argumentum ad hominem is most unbecoming of a judge, to say the least.

Respondent contends that the foregoing derogatory and disrespectful remarks serve to discretion not only himself but also this Court.

Respondent invokes the dictum set forth by Chief Justice Fernando in Fortun vs. Labang, L-38383, May 27, 1981, 104 SCRA 607, 616, that "a judge of an inferior court is deserving of the full protection of this tribunal against any form of vexation, inconvenience or harassment, the more so when, as is quite evident, haste and recklessness marked the conduct" of complainant's counsel.

Subida was required in this Court's resolution of October 26, 1981 to comment on Judge Alconcel's motion that he (Subida) be suspended for gross misconduct or punished for contempt of court. He received a copy of that resolution on November 13, 1981. Up to this time, he has not submitted his comment.

We hold that Subida's use of offensive language in his reply constitutes improper conduct or misbehavior which, being a breach of judicial decorum, degrades the administration of justice and constitutes contempt of court.

A lawyer, being an officer of the court, should "observe and maintain the respect due to the courts of justice and judicial officers". He should respect the court, "not for the sake of the temporary incumbent of the judicial office, but for the PO maintenance of its importance" and support the courts against "unjust criticism and clamor". (Sec. 20[b], Rule 138; Canon 1 of Professional Ethics).

A lawyer's oath binds him to observe good fidelity to the courts. He should not perform an act "involving any disrespect to the judicial office which he is bound to uphold" (Lualhati vs. Albert, 57 Phil. 86, 92). He should not use language, which jeopardizes high esteem in courts, creates or promotes distrust in judicial administration, or which could have the effect of "harboring and encouraging discontent which, in many cases, is the source of disorder, thus undermining the foundation upon which rests that bulwark caged judicial power to which those who are aggrieved turn for protection and relief.(Rheem of the Philippines vs. Ferrer, L-22979, June 26,1967, 20 SCRA 441, 445).

As stressed in another case, a lawyer's duty is to uphold the dignity and authority of the courts to which he owes fidelity, "not to promote distrust in the administration of justice" (Surigao Mineral Reservation Board vs. Cloribel, L-27072, January 9, 1972, 31 SCRA 1, 16-17).

A lawyer who has a legitimate cause for grievance against a judge has the right to complain and ask that discipline action be taken against the erring judge, but he should use decorous and judicious language, not the vulgar expressions of derision and vilification "Discipline and self-restraint on the part of the bar even under adverse conditions are necessary for the orderly administration of justice" (Malcolm, Legal and Judicial Ethics, 1949 Ed., 161-162).

For the contempt of court committed by lawyer Subida, which 'was aggravated by his unexpected failure to comply with this Court's resolution requiring him to comment on Judge Alconcel's motion, he is severely censured. The offensive and insolent expressions, which he used in his reply, are stricken out of the record. A copy of this resolution should be attached to his personal record in the Bar Confidant's office.

SO ORDERED.

15. cosmos foundry shop union vs lobo 63 scra 313

G.R. No. L-40136 March 25, 1975

COSMOS FOUNDRY SHOP WORKERS UNION and FILEMON G. ALVAREZ, petitioners, vs.LO BU and COURT OF APPEALS, respondents.

Filemon G. Alvarez for petitioners.

Yolando F Busmente for respondent Lo Bu.

FERNANDO, J.:ñé+.£ªwph!1

The jurisdiction of respondent Court of Appeals is assailed in this certiorari and prohibition proceeding. It is taken to task for entertaining an appeal from the Court of First Instance on a replevin suit which was correctly dismissed as it had all the earmarks of a subterfuge that was resorted to for the purpose of frustrating the execution of a judgment in an unfair labor practice controversy, one moreover already passed upon and sustained by this Court. Petitioner Cosmos Foundry Shop Workers Union is the prevailing party in that labor dispute which

unfortunately had dragged on since 1961, all its efforts to obtain what was due it being rendered illusory through the machinations of a certain Ong Ting, now deceased, and the private respondent Lo Bu. The lack of competence of respondent Court of Appeals to proceed further is thus rather obvious. It is about time that there be an effective vindication of the rights of petitioner labor union, so long set at naught and disregarded, by the employment of techniques, which certainly deserve no encouragement, much less approval. There was a grave infirmity then in the Court of Appeals having dismissed the appeal, reinstating it in its resolution of December 19, 1974. Certiorari and prohibition lie.

The facts show that on January 16, 1973, petitioner Cosmos Foundry Shop Workers Union was able to obtain from the Court of Industrial Relations the third alias writ of execution for the satisfaction and enforcement of the judgment in its favor. 1 Thereafter, Deputy Sheriff Mario Abiog of Manila, who was especially deputized to serve the writ, did so on January 17 and 18, 1973 levying on the personal properties of the Cosmos Foundry Shop or the New Century Foundry Shop for the purpose of conducting the public auction sale. 2 It was then that respondent Lo Bu filed an urgent motion to recall writ of execution, asserting lack of jurisdiction of the Court of Industrial Relations, a point stressed in another motion dated February 2, 1973, on the further ground that petitioner Cosmos Foundry Shop Workers Union failed to put up an indemnity bond. The Court of Industrial Relations in its order dated February 23, 1973 denied his motions. So likewise was the motion for reconsideration, as shown in its order dated March 23, 1973. Private respondent appealed by certiorari such order to this Court. It was docketed as G.R. No. L-36636. 3 This Court, in its resolution dated July 17, 1973, denied the petition for certiorari of private respondent. 4 In the meanwhile, there was a replevin suit by private respondent in the Court of First Instance of Manila covering the same properties. Upon receipt of the order from this Court denying certiorari, petitioner labor union filed a second motion to dismiss the complaint. It was therein alleged that private respondent has no cause of action, he being a fictitious buyer based on the findings of the Court of Industrial Relations in its order dated June 22, 1970 and affirmed by the Supreme Court in its resolution dated July 17, 1973. The lower court dismissed the complaint. 5 That is the decision elevated to the Court of Appeals, and it is precisely because of its obvious character as a further delaying tactic that this petition is filed.

Petitioner labor union has made out a case for certiorari and prohibition.

1. The order of the Court of Industrial Relations in the unfair labor practice case dated June 27, 1970 6 for the satisfaction and enforcement of which the third alias writ of execution was issued in favor of petitioner labor union starts with the following: "This concerns complainant's motion for the issuance of an alias writ of execution, dated March 12, 1970, "allowing the Sheriff to serve the Writ and returnable within 60 days and the said writ should be directed to Cosmos Foundry Shop or New Foundry Shop which is the firm name use(d) by the respondent in lieu of the Cosmos Foundry Shop ... The original writ of execution had been returned wholly unsatisfied as respondents had no visible properties found in their names, and the foundry shop where Mrs. Ong Ting and her family reside at Maisan, Valenzuela, Bulacan, is the "New Century Foundry Shop" (return of the Deputy Provincial Sheriff of Bulacan, dated March 11, 1970). Consequently, in its Order of March 19, 1970, the Court directed the examination of Mrs. Ong Ting and the Cosmos Foundry Shop concerning the latter's and Ong Ting's property and income. Extensive hearings were conducted." 7

Then comes this relevant portion: "From the evidence and the records, the Court finds that after the Cosmos Foundry Shop was burned, Ong Ting established the New Century Foundry Shop.

He and his family resided in the premises of the shop at 118 Maisan Road, Valenzuela, Bulacan. After his proposals to settle the present case for P5,000.00 in September 1968, for P25,000.00 in October 1968, and for P40,000.00 on December 22, 1968, were successively rejected by complainant's counsel, Ong Ting, after hinting of taking measures to avoid liability, soon executed a deed of absolute sale on December 31, 1968, selling all his business, including equipment, machineries, improvements, materials, supplies and rights, in the New Century Foundry Shop, to his compadre Lo Bu, for P20,000.00, which he acknowledged so fully paid ... The deed does not bear the conformity of Mrs. Ong Ting. On January 7, 1969, when Lo Bu applied for the original registration of the firm name, he gave his name as the manager and the capital of the business as P30,000.00 ... Notwithstanding such sale to Lo Bu, Ong Ting filed a verified urgent motion to reopen the case on January 25, 1969, and a verified motion for reconsideration of the Decision on May 12, 1969. In the latter motion, it was alleged that as a result of the fire, "Ong Ting lost everything; we cannot squeeze blood out of nothing ... " This allegation was made despite the recent alleged sale to Lo Bu, from which he realized P20,000.00." 8 The absence of good faith on the part of respondent Lo Bu as the alleged vendee was made clear thus: "There was no actual turn over of the business to Lo Bu, the alleged manager in absentia. At the time Ong Ting died, he was still residing in the premises of the shop ... His family continued to reside therein without paying any rental to Lo Bu. His young 19-year-old son Delfin Ong became in-charge of the shop and the workers. His daughter Gloria Ong became the cashier. Mrs. Ong Ting became the manager and she supervised the work. .. The alleged sale was no doubt intended to circumvent any judgment this Court might render unfavorable to respondents. It is clearly fictitious. And such a declaration by this Court is well within its jurisdiction because what is being sought is the enforcement or implementation of its order. Having acquired jurisdiction, the Court may employ means to carry it into effect (Sec. 6, Rule 135, Rules of Court)." 9

That was why in the dispositive portion of the aforesaid order, an alias writ of execution was issued against the properties held in the name of the New Century Foundry Shop at 118 Maisan Road, Valenzuela, Bulacan for the satisfaction of the judgment in this unfair labor practice proceeding. As noted, there was a replevin suit by the same vendee in bad faith, Lo Bu, which was dismissed by the Court of First Instance of Manila precisely because in the meanwhile the finality of the writ of execution became definitely settled when this Court issued its resolution of July 17, 1973. 10 It denied the petition for certiorari filed by the private respondent, Lo Bu, for the purpose of annulling the third writ of execution issued in accordance with the dispositive portion of the order of the Court of June 22, 1970.

2. To all intents and purposes then, that is the law of the case. What is worse, private respondent Lo Bu certainly cannot plead ignorance, as he himself was the petitioner in the certiorari proceeding before this Court. He failed, and ii was not surprising, for on the facts as found, he was a principal in the nefarious scheme to frustrate the award in favor of petitioner labor union. There was thus a ruling as to the bad faith that characterized his pretension of being the alleged vendee. In Cruz v. Philippine Association of Free Labor Unions 11 it was shown that to avoid the legal consequences of an unfair labor practice, there was a fictitious sale resorted to, as in this case. Under the circumstances, the bad faith being evident, the ostensible vendee was precluded from taking advantage of the situation. So it must be here. Moreover, that is merely, as stated earlier, to accord deference to the fundamental principle of the law of the case, his petition for certiorari having been dismissed by this Court. There is this excerpt from the recent decision ofMangayao v. De Guzman: 12 "The latest case in point as of the time the order complained of was issued is Kabigting v. Acting Director of Prisons, a 1962 decision. As emphasized by the ponente, the then Justice, now Chief Justice, Makalintal: 'It need not be stated that the Supreme Court, being the court of last resort, is the final arbiter of all

legal questions properly brought before it and that its decision in any give case constitutes the law of that particular case. Once its judgment becomes final it is binding on all inferior courts, and hence beyond their power and authority to alter or modify. If petitioner had any ground to believe that the decision of this Court in Special Proceeding No. 12276 should further be reviewed his remedy was to ask for a reconsideration thereof. In fact he did file two motions for that purpose, both of which were denied. A new petition before an inferior court on the same grounds was unjustified. As much, indeed, was clearly indicated by this Court in its resolution of April 3, 1959, herein above reproduced in its entirety. The import of the resolution is too plain to be misunderstood.' So it has been from 1919, when in Compagnie Franco-Indochinoise v. Deutsche-Australische Dampschiffs Gesellschaft, this Court, through Justice Street, categorically declared that a decision that has become the law of the case "is not subject to review or reversal in any court." What is more, in 1967, there is a reaffirmation of the doctrine by this Tribunal in People v. Olarte where it was stressed by Justice J.B.L. Reyes that a ruling constituting the law of the case, "even if erroneous, ... may no longer be disturbed or modified since it has become final ... " Then, in Sanchez v. Court of Industrial Relations, promulgated in 1969, there is the pronouncement that the law of the case 'does not apply solely to what is embodied in [this Court's] decision but likewise to its implementation carried out in fealty to what has been ... decreed.'"13

3. Private respondent, in his special and affirmative defenses, alleged that petitioners have a plain and adequate remedy in the ordinary course of law being the appellees in the pending case in the Court of Appeals sought to be dismissed in this suit for certiorari. As a general rule, such a plea could be looked upon with sympathy. That is the ordinary course of judicial procedure. There would be no basis for legitimate grievance on the part of petitioners. It is not so however in this case. The sad plight of petitioner labor union had been previously noted. It is about time that a halt be called to the schemes utilized by respondent Lo Bu in his far-from-commendable efforts to defeat labor's just claim. It would be repugnant to the principle of social justice 14 and the mandate of protection to labor 15 if there be further delay in the satisfaction of a judgment that ought to have been enforced years ago.

4. One last point. It was set forth in the Petition 16 that respondent Lo Bu filed an urgent motion with the Court of Industrial Relations to recall the writ of execution alleging as one of his grounds lack of jurisdiction to pass upon the validity of the sale of the New Century Foundry Shop, followed by another motion praying for the return of the levied properties this time asserting that petitioner labor union failed to put up an indemnity bond and then a third, this time to allow the sheriff to keep the levied properties at his factory, all of which were denied by the Court en banc in its order of March 23, 1973, assailed in the certiorari proceeding, dismissed by this Court for lack of merit. 17 Counsel Yolando F. Busmente in his Answer to this petition, filed on February 20, 1975, had the temerity to deny such allegations. He simply ignored the fact that as counsel for respondent Lo Bu, petitioner in L-36636, he did specifically maintain: "On January 26, 1973, in order to vindicate his rights over the levied properties, in an expeditious or less expensive manner, herein appellant voluntarily submitted himself, as a forced intervenor, to the jurisdiction of respondent CIR, by filing an urgent 'Motion to Recall Writ of Execution,' precisely questioning the jurisdiction of said Court to pass upon the validity and legality of the sale of the 'New Century Foundry Shop' to him, without the latter being made a party to the case, as well as the jurisdiction of said Court to enforce the Decision rendered against the respondents in Case No. 3021-ULP, by means of an alias writ of execution against his properties found at the 'New Century Foundry Shop;' ... ; Petitioner appellant's urgent motion aforesaid was set for hearing on February 5, 1973, and inasmuch as the auction sale of his properties was set for January 31, 1973, the CIR issued an order on January 30, 1973, one day before the schedule sale, ordering the Sheriff of Manila not to proceed with the auction sale; ... ;

On February 3, 1973, herein petitioner-appellant [Lo Bu] filed another urgent motion dated February 2, 1973, praying for the return of his properties on the ground that the judgment creditor (respondent-appellee) failed to put up an indemnity bond, pursuant to the provision of Section 17, Rule 39 of the Rules of Court; ... On February 10, 1973 respondent-appellee Cosmos Foundry Workers Union interposed its opposition to herein petitioner-appellant's urgent motions dated January 26, 1973 and February 2, 1973, ... ; On February 27, 1973, herein petitioner-appellant received an order from respondent CIR, dated February 25, 1973, denying his urgent motions and ordering the Sheriff of Manila to proceed with the auction sale of his properties "in accordance with law;" ... " 18 Such conduct on the part of counsel is far from commendable. He could, of course, be casuistic and take refuge in the fact that the paragraph of the petition, which he denied, was, in addition to being rather poorly and awkwardly worded, also prolix, with unnecessary matter being included therein without due regard to logic or coherence or even rules of grammar. He could add that his denial was to be correlated with his special defenses, where he concentrated on points not previously admitted. That is the most that can be said of his performance, and it is not enough. For even if such be the case, Attorney Busmente had not exculpated himself. He was of course expected to defend his client's cause with zeal, but not at the disregard of the truth and in defiance of the clear purpose of labor statutes. He ought to remember that his obligation as an officer of the court, no less than the dignity of the profession, requires that he should not act like an errand-boy at the beck and call of his client, ready and eager to do his every bidding. If he fails to keep that admonition in mind, then he puts into serious question his good standing in the bar.

WHEREFORE, the writ of certiorari is granted and the order of December 19, 1974 of respondent Court of Appeals reinstating the appeal is nullified and set aside. The writ of prohibition is likewise granted, respondent Court of Appeals being perpetually restrained from taking any further action on such appeal, except that of dismissing it. Triple costs.

Makalintal, C.J., Antonio and Fernandez, JJ., concur.1äwphï1.ñët

Aquino, J., is on leave.

BARREDO, J., concurring:

I concur in the judgment enjoining the Court of Appeal from entertaining the appeal of private respondent in CA-G.R. No. 56485-R entitled Lo Bu, etc. vs. Cosmos Foundry Shop Workers Union & F. Alvarez.

After petitioners had secured a judgment in the Court of Industrial Relations against Cosmos Foundry Shop and by virtue thereof obtained a writ of execution against said Shop and the Sheriff had levied on properties found therein, herein private respondent appeared and asserting his rights over the levied properties by virtue of a sale made to him by the Shop, impugned the jurisdiction of the Industrial Court to carry out the purported execution. The Industrial Court sustained its authority and on certiorari to the Supreme Court by respondent the petition was dismissed (G.R. No. L-36636). In the meanwhile, respondent sued for replevin of the same properties in the Court of First Instance of Manila, Case No. 89994. In its answer to the replevin action, petitioners invoked the resolution of this Court in G.R. No. L-36636 and moved to dismiss the complaint, which motion was granted. When respondent appealed to the Court of Appeals, petitioners filed the present petition for prohibition.

No doubt, as things stand now, the remedy pursued by petitioners is not the appropriate one. The ground of dismissal upheld by the trial court was in essence res adjudicata. Ordinarily, against such dismissal, the remedy is appeal and, of course, such an appeal cannot be stopped by prohibition. And if only because the Court of Appeals has not been given any opportunity at all to pass on its own alleged lack of jurisdiction, the present action would seem to be premature.

From another point of view, however, it is quite obvious that to allow the respondent Court of Appeals to entertain respondent's appeal would be sanctioning, as the main opinion finds, the apparently endless ingenious schemes, if judicial, of respondent to further delay the execution of the subject judgment which became final and executory almost two years ago after a protracted litigation that started way back in 1961, since thirteen yesteryears from now. Law and justice demand that petitioners should not be further denied the fruit of their legal efforts, to secure redress, particularly because in the order of the Industrial Court denying respondent's motion to recall the writ of execution against Cosmos Foundry Shop, the court found said Shop and respondent to have indulged in a simulated transaction covering the properties in question purposely to avoid satisfaction of the judgment in favor of petitioners.

To reiterate, the ground of dismissal of respondent's replevin suit is a legal one, res adjudicata, termed in the main opinion as "law of the case". Indeed, the Court of Industrial Relations had already found the sale to respondent of the Cosmos Foundry Shop to be fraudulent, and that decision was sustained by this Court. In that proceeding, even the jurisdiction of the Industrial Court was questioned. Thus, both the merits of the respective claims of the parties as well as the validity of the action of the Industrial Court is now beyond question. And that was the basis of petitioners' motion to dismiss the replevin action. Under these circumstances, any appeal from the order of dismissal should have come directly to this Court, the issue passed upon by the trial court being purely legal, premised as it is on conclusions of fact of the Court of Industrial Relations no longer assailable as a matter of law by respondent.

In other words, the Court of Appeals would have no alternative anyway than to certify that appeal to Us, and, accordingly, We can already decide the present action as if certification had in fact been made. The pleadings and the issues before Us now could not be substantially different, if We took the roundabout way of directing such certification to be made before We render Our decision. It is, but proper, therefore, that in the interest of a faster, more effective and less technically cumbersome administration of justice, We should here and now put an end to the controversy between the parties herein.

Contrary to the claim of respondent regarding the jurisdiction of the Industrial Court to pass on the question of the alleged fictiousness of the sale to respondent, there is at least the decision of this Court in Kaisahan ng Mga Manggagawa sa La Campana vs. De los Angeles, 36 SCRA 142, holding that the power of control over the Sheriff in relation to the implementation of writ of execution issued by the Industrial Court belongs to that court and not to any Court of First Instance. (at pp. 155-6.) But even assuming there could be in truth some doubt on the matter, the fact is that issue was actually included in the previous proceeding in that court sustained by this Court in G.R. No. L-36636. If that ruling is in anyway erroneous, We cannot change it anymore. As far as the parties are concerned that is the law of the case. Even a ruling on jurisdiction has the effect of res adjudicata. Much less then could any other court disregard it. And inasmuch as the trial court simply adhered to this view, its order of dismissal can hardly be assailed as erroneous.

IN VIEW OF THE FOREGOING, it is my considered view that for want of appellate jurisdiction, the impugned appeal in the Court of Appeals may be considered as non-existing and that court should be enjoined from taking any further action thereon, even as We decide the case now as if it had been duly appealed to us without the need of any further proceeding, since, as already observed, the necessary pleadings are in effect already before Us.

16. taroma vs sayos 67 scra 508

G.R. No. L-37296 October 30, 1975

RUFINO TAROMA and CAYETANA GASIDAN, petitioners, -versus-

HON. MARCELINO N. SAYO, in his capacity as Presiding Judge of Branch IV (Batac) of the Court of First instance of Ilocos Norte, and INOCENCIO CRISOSTOMO, respondents.

Flor Valdez Anama for petitioners.

Castor Raval for private respondent.

TEEHANKEE, J.:

The Court herein reaffirms its recent rulings that notice of pre-trial should be served separately upon the party and his counsel of record. The Court further restates for the guidance of the bench and bar that rather than the option of the trial court's serving the notice to party of pre-trial directly to the party, the trial courts should best uniformly serve such notice to party through or care of his counsel at counsel's address with the express imposition upon counsel of the obligation of notifying the party of the date, time and place of the pre-trial conference and assuring that the party either appear thereat or deliver to counsel a written authority to represent the party with power to compromise the case, with the warning that the party who fails to do so may be non-suited or declared in default.

Petitioners as plaintiffs had flied an action to quiet title to land and recover the same with damages in the court of first instance of Ilocos Norte against respondent Inocencio Crisostomo. For failure of said respondent-defendant and his counsel to appear at the pre-trial set on March 2, 1971, notwithstanding that his counsel, Atty. Venancio Albano, had been served with notice thereof by registered mail, the lower court then presided by Judge Jose A. Madarang per his order of March 2, 197l declared respondent in default, received ex-parte petitioners' evidence and handed down a year later his decision of March 13, 1972 granting petitioners' suit as prayed for.

On April 12, 1972, (for four days after service of the decision on Atty. Albano), respondent through new counsel, Atty. Castro Raval, filed a motion to set aside the default order and decision with his affidavit of merit on the ground that he had been denied due process and his day in court, since he had not been notified of the pre-trial set for March 2, 1971 and his former counsel disclaimed having received notice thereof. After hearing the parties, respondent Judge Marcelino N. Sayo presiding the lower court (vice Judge Madarang who had since retired) per his Order of February 26, 1973 set aside the default order and ex-parte decision on the principal ground that respondent "was not duly notified of the pre-trial" and reset the case for a new pre-trial.

Reconsideration having been denied, petitioners brought the present action for certiorari and prohibition against the challenged Order of respondent judge and sought determination of the thorny issue of whether notice of pre-trial must be served on the parties-litigants as well as on their counsel of record..

The Court has resolved this issue against petitioners' contention that notice of pre-trial served on counsel alone is sufficient in the two recent decisions of Lim vs Animas1 and Pineda vs. Court of Appeals, 2 wherein we ruled that "notice of the pre-trial must be served separately upon the party affected thereby and his counsel of record, stating therein the purpose, time and place of the pre-trial conference and requiring said party and his counsel to appear thereat. The service to the party may be madedirectly to him or through his counsel who shall be required to some the notice upon the party." 3

The Court based its ruling on Rule 20, section 1 which makes pre-trial mandatory and provides that "after the last pleading has been filed, the court shall direct the parties and their attorneys to appear before it" for a pre-trial conference and on section 2 which further provides that "(A) party who fails to appear at a pre-trial conference may be non-suited or considered as in default."

Hence, the general rule of notice to counsel constituting notice to parties under Rule 13, section 2 4 has been held insufficient and inadequate for purposes of pre-trial. As expounded in Lim, supra "(T)he Court recognizes the importance of pre-trial procedure as a means of facilitating the disposal of cases by simplifying or limiting the issues and avoiding unnecessary proof of facts at the trial, (or exploring the possibility of an amicable settlement or of submission to arbitration), and generally to do whatever may reasonably be necessary to facilitate and shorten the formal trial. Considering, however, the adverse effects of a party's failure to appear at the pre-trial conference, We hold that before the party is non-suited or considered in default, it must be shown that the party and his counsel were duly served with notice of such pre-trial conference." 5

The Court is aware that Rule 20 on pre-trial does not provide for the method of sending the notices thereof both to parties and their attorneys directing them to appear at the pre-trial conference, as well as of the many difficulties and complications which could frustrate and defeat the very holding of the pre-trial, as per the extreme example usually given in seminars on trial problems of numerous plaintiffs and defendants residing in different and distant places, which would unduly tax the courts' staff, resources and facilities for sending individual notices of the pre-trial, say, to a hundred parties, not to mention that the addresses of the parties, litigants are not generally made a matter of record in the case.

For the guidance of the bench and bar, therefore, the Court in reaffirming the ruling that notice of pre-trial must be served separately upon the party and his counsel of record, restates that while service of such notice to party may be made directly to the party, it is best that the trial courts uniformly serve such notice to party through or care of his counsel at counsel's address is with the express imposition upon counsel of the obligation of notifying the party of the date, time and place of the pre-trial conference and assuring that the party either appear thereat or deliver to counsel a written authority to represent the party with power to compromise the case, with the warning that a party who fails to do so may be non-suited or declared in default.

Thus, the notice of pre-trial stating the date, time and place thereof shall be addressed not only to counsels of record but also to the parties themselves who shall be expressly named, care of their counsel at counsel's address of record. To take the present case as a model, the pre-trial notice to respondent and to counsel should read: "Mr. Inocencio Crisostomo, defendant, c/o or through counsel, Atty. Castor Raval, Laoag City and Atty. Castor Raval, counsel for defendant, Laoag City" and should contain the express notice that counsel is charged with the obligation of notifying his client(s) (plaintiff/defendant) of the date, time and place of the pre-trial and of assuring that his client(s) either appear at the pre-trial

conference or deliver to him a written authority to represent his client(s) with power to compromise the case, with the warning that a party who fails to do so may be non-suited or considered as in default under Rule 20, section 2.

This obligation imposed upon counsel as an officer of the Court to receive the notice of pre-trial addressed to his client but to his care and of making sure that the client as party-litigant is duly apprised of the notice and attend the pre-trial or authorize him to represent his client with power to compromise under pain of non-suit or default must be faithfully complied with by counsel. Needless to say, his failure to discharge his duty in compliance with the Court's express requirement shall subject him to disciplinary action and grave administrative liability as a member of the bar.

The petition at bar must, therefore, fail since respondent had not been served with notice of the pre-trial, whether directly or through his then counsel, Atty. Albano. Hence, respondent judge properly set aside the default order and ex-parte decision and reset the case anew for pre-trial and thus "gave both parties every chance to fight their case fairly and in the open, without resort to technicality" — to borrow the language of Pineda, supra.

The Court has noted however from the petition and petitioners' reply that as against the alleged disclaimer of respondent's former counsel, Atty. Venancio Albano, of his having received by registered mail the notice of the pre-trial set for March 2, 1971, there appear on record the clerk's and postmaster's certifications to the contrary attesting that Atty. Albano did actually receive said pre-trial notice. While this would not in any way affect the outcome of the case as herein determined, nevertheless such misrepresentation by Atty. Albano, if duly proven, would constitute a grave misrepresentation of fact which would subject him to serious disciplinary action as a member of the bar, and respondent judge (or his successor 6 ) should duly investigate the matter at the resumption of the proceedings below and submit to the Court a report of his findings and action.

The Court has noted, finally, that contrary to the provisions and requirements of Rule 65, section 5, wherein private respondent Crisostomo, through his counsel, is charged with the duty to appear and defend both in his own behalf and in behalf of respondent judge who is a mere formal party the challenged order of respondent judge which set aside the default order and ex-parte decision against him, said respondent after filing through counsel, Atty. Raval, his Comment on the petition did exactly the reverse by absolutely doing nothing further and left it to respondent judge alone to file a memorandum on his own (the judge's) behalf when it is he (respondent) who should have filed such memorandum as the real party in interest.

The Court enjoins both judges and lawyers to comply with the cited Rule. Judges who are made respondents are mere formal parties and are not to be distracted from their main function of trying and adjudicating cases in their own courts. The burden of defending their challenged action falls on private respondent and the latter's counsel may he subject to disciplinary action should he fail to discharge the task.

The Court in its recent Resolution of October 14, 1975 did inform all concerned "that in all instances where a lower court or judge, including the Court of Appeals, is made respondent in any petition relating to acts or omissions of said court or judge, the provisions of section 5 of Rule 65 ... should be observed, hence whether the summons calls for an answer or a mere comment, respondent court or judge is considered a mere nominal party and need not file any separate pleading or comment distinct from that of the private respondent who is obligated under the above provision to appear and defend the court or judge concerned, unless the summons or order to comment specifically and expressly requires the court or the judge himself to comply with the directive of the superior court. In the latter case, the answer or comment

must be over the signatures of the justices or judge of the respondent court, and not of any counsel whether private or public." 7

ACCORDINGLY, the petition is dismissed and the restraining order issued on May 22, 1973 against the challenged order resetting the case anew for pre-trial and eventual trial and disposition on the merits is lifted. The judge now presiding respondent court shall as indicated in the opinion conduct an investigation of whether respondent's former counsel committed a grave misrepresentation of fact and submit to the Court a report of his findings and action. No costs.

Castro, Actg. (C.J), Barredo, Makasiar, Antonio, Muñoz Palma, Aquino, Concepcion, Jr. and Martin , JJ., concur.

Makalintal, C.J., Fernando and Esguerra, JJ., are on leave.

17. tabiliran vs tabiliran 115 scra 45118. uy chung seng vs magat 119 scra 111

A.M. No. L-2018 December 10, 1982

UY CHUNG SENG and CHING UY SENG, complainants, -versus-

ATTY. JOSE C. MAGAT, respondent.

Romulo Rivera for complainants.

Jose C. Magat in his own behalf.

MELENCIO-HERRERA, J.:

On March 27, 1979, Uy Chung Guan Seng and Ching Uy Seng filed a verified Complaint for Disbarment against respondent Atty. Jose C. Magat alleging that the following circumstances warranted his exclusion from the Roll of Attornies:

On 22 August 1977 (should be 11 August 1977), Complainant CHING UY SENG a ROBERT CHING received a letter from Respondent Atty. JOSE C. MAGAT, threatening to report him to the government authorities if he would not get in touch with him (MAGAT) and his clients with respect to a bunch of documents and papers pertaining to Complainants' business. Such documents turned out to be a part of the articles which were stolen from the office/residence of Complainants on 2 June 1977. In the morning of 13 August 1977, UY CHUNG GUAN SENG a HENRY CHING; his lawyer, Atty. ELISEO LEGASPI; and NBI Agent RODOLFO DAHIROC went to the Office of Atty. MAGAT at Room 512 Madrigal Bldg., Escolta, Manila, in response to the above-mentioned letter. Atty. MAGAT initially demanded the sum of P500,000.00 in exchange for the robbed documents. CHING, LEGASPI and Agent DAHIROC insisted on seeing the documents first and to talk with Atty. MAGAT's clients before they negotiate the terms of the return of the documents. The meeting was reset on 15 August

1977 at 3:00 p.m., during which Atty. MAGAT informed them that their demand was reduced to P300,000.00 on a "take it or leave it" basis. Atty. MAGAT's "clients" who brought in the robbed documents turned out to be the suspects in the robbery of the office/residence of Complainants on 2 June 1977, Atty. MAGAT insisted that HENRY CHING produce P30,000.00 to show his good faith in pushing through with the negotiation. It was at this juncture that the NBI Agents confronted the group and brought them to the NBI office together with the robbed documents for investigation. 1

Required to comment, respondent alleged that there was absolutely no truth to the charge imputed to him; that the incident became the subject of a criminal charge for Light Threats filed by the NBI Agents with the Office of the Fiscal of Manila (IS No. 77-26882) which, after preliminary investigation, was dropped for "utter insufficiency of evidence"; and that after the lapse of more than one year from the date of said criminal complaint, complainants through Atty. Eliseo Legaspi, reopened the case before this Tribunal merely to harass him and assail his character and conduct. Respondent prayed that the complaint be dismissed for utter lack of merit.

On June 5, 1979, upon consideration of the Complaint and the Comment, this Court resolved to suspend respondent from the practice of law effective immediately upon notice, and until further orders. The Court further resolved to refer the case to the Solicitor General for investigation.

On September 24, 1979, the Solicitor General 2 submitted his Report and Recommendation, quoted in full hereunder:

REPORT AND RECOMMENDATION

COME NOW the undersigned counsel and after investigation of the complaint in the above-entitled case pursuant to the Resolution dated June 5, 1979, notice of which was received by the Office of the Solicitor General on June 11, 1979, respectfully submit this Report and Recommendation.

1. This case stemmed from a letter dated August 11, 1977 sent by respondent Atty. Jose C. Magat to Mr. Robert Ching, one of the complainants herein, which, reads as follows:

J.C. Magat Law Office

R-512 Madrigal Building

Escolta, Manila

Tel. No. 48-23-01

PERSONAL DELIVERY

August 11, 1977

Mr. Robert Ching

528 San Fernando, or 107 Renta St.

Binondo, Manila

Dear Mr. Ching:

Mr. Felicisimo Cruz and his companions came to this office with bunch of documents and papers and statements of accounts pertaining to the business transactions of the A-1 Photo Litho and Photo Engraving. Their intention was for me to first get in touch with you about the disposition of the same or go direct to the Government office to examine the said documents with original invoices and triplicates thereof showing discrepancies in amounts.

I do not know whether you will be interested. If you are interested, you may get in touch with me in my office possibly in the afternoon of any day except Sunday and Saturday, although I am here on Saturdays up to 1:00 p.m.

If I do not hear from you upon receipt of this letter either today or tomorrow, I will consider your silence as indifference and that I can proceed to do what I believe is proper.

Very truly yours,

(SGD.) JOSE C. Magat

JCM/

P.S. Enclosed is a sample of transactions of your company indicating the actual amount paid on the original invoice and the amount shown on the triplicate thereof and likewise the amount not reported in our statement of account.

(In.) JCM

(Exh. "C", p. 27, Records).

The letter was personally delivered by respondents secretary to complainant Uy Chung Guan Seng, brother of complainant Robert Ching (pp. 243, 246, t.s.n., July 23, 1979). Enclosed with the letter was a columnar sheet containing a list of invoices indicating the amount actually paid, as shown in the original invoice, and the amount reflected in the triplicate thereof (Exh. C-1, p. 28, Record; p. 246, t.s.n., Id.).

2. On August 11, 1977, the letter was referred to Atty. Eliseo P. Legaspi. In the afternoon of that same day, Atty. Legaspi and Uy Chung Guan Seng went to the office of respondent Magat at Rm. 512 Madrigal Bldg., Escolta, Manila, but Atty. Magat was not there, However, they met Atty. Magat on the Escolta sidewalk in front of the Lyric Theater. Atty. Legaspi and Atty. Magat conferred about the letter and the latter told the former that he will communicate with his client. Atty. Magat also told Atty. Legaspi to come back on August 13 (pp. 94-98, t.s.n., July 9, 1979).

3. In view of the development, Atty. Legaspi wrote on August 12, 1977 a letter to the Director of the National Bureau of Investigation (NBI for short) seeking assistance "by

way of assigning one of your agents in my planned conference with Atty. Magat tomorrow" (Exh. D, p. 29, Records; pp. 28-29, Id.). Conformably with the request, the NBI assigned Agent Rodolfo Dahiroc to assist Atty. Legaspi (p. 32, t.s.n., Id.).

4. On August 13, 1977, Atty. Legaspi, Agent Dahiroc, and complainant Uy Ching Guan Seng, also known as Henry Ching, went to the office of Atty. Magat at Rm. 512 Madrigal Building to Negotiate about the contents of the letter Exhibit "C", but the group of Felicisimo Cruz mentioned in the letter did not arrive. Atty. Magat asked Atty. Legaspi who Agent Dahiroc was, he being then dressed in T-shirt. Atty. Legaspi introduced Agent Dahiroc as his assistant (p. 102, t.s.n., July 9, 1979). Atty. Magat told Atty. Legaspi to return on August 15 (p. 35, t.s.n., July 6, 1979).

5. On August 15, 1977, Atty. Legaspi accompanied by Agent Dahiroc and Henry Ching, again went to the office of Atty. Magat. Upon reaching the place, Atty. Magat told the trio that the group of Felicisimo Cruz will arrive at 5:00 o'clock that afternoon. While waiting for the group of Felicisimo Cruz to arrive, conversation ensued, during which Atty. Magat demanded P500,000.00 for the return of the documents mentioned in the letter. This amount was reduced to P300,000.00, with the request, however, that an advance payment of P30,000.00 be made to show good faith; upon paying the balance, all the documents will be returned (pp. 35-37, Id.; pp. 260261, t.s.n., July 23, 1979). Shortly thereafter Felicisimo Cruz and his group arrived, bringing along with them two sacks of invoices and papers and the black portfolio of Uy Chung Guan Seng. Atty. Magat showed Uy Chung Guan Seng the folder or plastic bag containing papers and the portfolio to verify whether those were really their papers (pp. 37-38, t.s.n., July 6, 1979). It turned out that the person introduced as Felicisimo Cruz is Rodolfo Salita the driver of complainant Robert Ching, who qqq with P 40,000.00 owned by Robert Ching on December 3, 1976 (p. 39, Id.), and who had sent a letter to Uy Chung Guan Seng on July 1, 1977 (Exhs. L and L-1) admitting participation in the robbery committed at the latter's office on June 2, 1977 in which papers and documents pertaining to their business, among other things, were taken. Rodolfo Salita's companions were Jesus Salita and his brother-in-law Robert Rajotte (pp. 3940, Id.).

6. When the group of Rodolfo Salita, alias Felicisimo Cruz, arrived with the documents subject of the negotiation, and after verification of sample documents, Atty. Legaspi community gate secretly with Agent Dahiroc to get reinforcements and then in a loud voice ordered Dahiroc and Uy Chung Guan Seng to get the P30,000.00 being demanded by Atty. Magat as earnest-money (p. 40, Id.; p. 135, t.s.n., July 9, 1979). Whereupon Uy Chung Guan Seng and Agent Dahiroc left Atty. Magat's office and went downstairs. Uy Chung Guan Seng proceeded to the Insular Bank of America in Dasmarinas pretending to get the money there, while agent Dahiroc went to get reinforcements (p. 40, t.s.n., July 6, 1979; pp. 262-264, t.s.n.. July 23, 1979). After a few minutes, Agent Dahiroc and the reinforcements arrived and they placed Rodolfo Salita, Jesus Salita, Robert Rajotte and a certain Rogelio Villagracia under arrest; they also seized the articles and documents brought by Rodolfo Salita and his group (p. 41-42, t.s.n., July 6, 1979; p. 357, t.s.n., July 25, 1979; pp. 383-384, t.s.n., July 27, 1979). Agent Dahiroc, after introducing himself as an NBI agent, apprised Atty. Magat that the documents seized were the subject of a robbery case and that from the tenor of the letter, Exhibit 'C'. there was a case of extortion against respondent (pp. 358-359, t.s.n., July 25, 1979). Agent Dahiroc then invited Atty. Magat to go to the NBI for investigation (p. 359-361, Id.). Atty, Magat pleaded that as a brother in the profession, he wanted to talk with him on a personal

level, so he invited Agent Dahiroc to go with him to the Kentucky Cocktail Lounge which was near his office. Agent Dahiroc acceded because the other persons arrested were already in the custody of the other NBI Agents. At the Kentucky Cocktail Lounge Atty. Magat told agent Dahiroc that if the latter wanted to, they can make some money. Agent Dahiroc answered that there was no money in the documents because they had been brought to the attention of the government and that there was a complaint for robbery. Agent Dahiroc further told Atty. Magat that there was no way for them to have a happy agreement', so the former brought the latter back to the office (pp. 362-363, t.s.n., July 25, 1979; pp. 386387, t.s.n., July 27, 1979). At the office, Atty. Magat insisted on his right not to go to the NBI, so Agent Dahiroc called up the NBI Regional Director and informed him of the unwillingness of Atty. Magat to go with the group to the NBI. As a compromise Atty. Magat was allowed to remain after he had prepared and signed a written undertaking that he would report to the NBI office the following day for questioning regarding the matter (Exh. Q p. 37, Records; pp. 364-366, t.s.n., July 25, 1979). Contrary to his written promise, Atty. Magat did not report to the NBI Office (p. 367, Id.).

Agent Dahiroc prepared an inventory of all the articles and documents seized during the raid at the office of Atty. Magat (Exh. S); NBI photographers took pictures of the office of respondent where the raid took place, as well as of the persons arrested and the articles seized (Exhs. F, G, H, I, J, and K pp. 57, 58, 59, 61, 62, 73, Records), On August 19, 1977, Agent Rodolfo Dahiroc and Leopoldo Cotaco submitted their written report on the incident in question (Exh. R, pp. 7-14, Records; pp. 367-371, Id.).

7. In the course of their conversation during one of his meetings with agent Dahiroc and Atty. Legaspi, respondent Magat told the duo that as counsel for Felicisimo and his group in the transaction, his share would be one-third (1/3) of the amount which they would receive from the complainants (pp. 402-404, t.s.n., July 27, 1979).

8. Respondent Atty. Magat admits that he wrote and sent the letter, Exhibit "C", to complainant Robert Ching but he claims that he prepared the same at the request of Felicisimo Cruz after being shown sales Invoices of A-I Photo Litho, a firm managed by Robert Ching, and after noticing discrepancies in the amounts appearing in the originals and in the duplicates of said invoices (pp. 7-8, t.s.n., July 30, 1979). He also admits that on August 13, 1977, he showed Atty. Legaspi the sample of the sales invoice of the A-1 Photo Litho containing the anomalous discrepancies aforementioned (p. 13, Id.). He, however, denies that he demanded the amounts mentioned by the witnesses for the complainants because what he did was merely to convey the demands of his clients (pp. 18-23, Id.).

9. The actuations of respondent Atty. Magat constitute malpractice and gross misconduct. Writing and sending the letter Exhibit C and demanding from the complainants the amount of P500,000.00, later on reduced to P300,000.00, with P30,000.00 as downpayment to show good faith, in consideration for the return of anomalous invoices and documents, is highly reprehensible. Such acts constitute not only threat but extortion. Respondent's protestations of good faith in sending the letter to the complainants are not convincing if indeed he had no ulterior motive, he should have referred the documents brought by Salita and his companions directly to the BIR instead of addressing a letter with a veiled threat to the complainants and having the letter delivered personally to them.

Even assuming as true the allegation of respondent that he did not actually demand the amounts mentioned above for himself but that he merely conveyed the demands made by the group of Felicisimo Cruz, such act is still violative of an attorney's oath. For then, respondent assisted his clients in a scheme which he knows to be dishonest. He knew that the documents presented by Felicisimo Cruz to him are proof that the government has been unlawfully deprived of much needed taxes. As testified to by him, respondent, after verifying the invoices, was convinced that the A-I Litho and Photo Engraving was cheating the government (pp. 83-84, Id.). He knew too that the decree of Cruz and his group to extort money from the complainants in exchange for the anomalous documents was illegal. Despite such knowledge and awareness, he connived with his clients in violating the law. And for what? It is in consideration of the one-third share he would receive from the proceeds of the transaction. The assistance he extended to his clients' dishonest scheme and his connivance with them in violating the law render the respondent guilty of unprofessional conduct which warrants his disbarment or suspension.

The promoting of organizations, with knowledge of their objects, for the purpose of violating or evading the laws against crime constitutes such misconduct on the part of an attorney, an officer of the court, as amounts to malpractice or gross misconduct in his office, and for which he may be removed or suspended (Code of Civil Procedure, sec. 21). The assisting of a client in a scheme which the attorney knows to be dishonest, or the conniving at a violation of law, are acts which justify disbarment. (In Re Terrel 2 Phil. 266, 267-268; Emphasis supplied).

10. The grounds for disbarment or suspension enumerated in the statute should not be taken as a limitation of the general power of the courts to disbar or suspend a lawyer. For the power of the court over its officers cannot be restricted. A lawyer may be removed not only for malpractice or dishonesty in his profession but also for his gross misconduct which shows him to be unfit for the office and unworthy of the privileges which the law confers upon him (In Re Puno, 19 SCRA 439).

It has been repeatedly ruled that the purpose of disbarment is to protect the courts and the public from the misconduct of officers of the court and to ensure the administration of justice by requiring that those who exercise this important function shag be competent, honorable and trustworthy men in whom courts and dents may repose confidence (Santos vs. Dichoso, 84 SCRA 622). In the case at bar, respondent has not exercised honesty and trustworthiness and has failed to have up to the high standards of the law profession.

It is the duty of a member of the bar to avoid all appearances of impropriety and his actuations should be beyond suspicion. It is true that an attorney enjoys the legal presumption of innocence until the contrary is proved, but this presumption has been rebutted by the clear and convincing evidence presented by the complainants and their witnesses.

The actuations of respondent constitute attempted extortion although what was filed against him in the Office of the City Fiscal of Manila was only for light threats. Of course, respondent was able to show that the charge for light threats lodged against him was dismiss, as shown by the memorandum of Assistant Fiscal Billy M. Apalit and the memorandum of 2nd Assistant City Fiscal Artemio M. Cusi recommending the dismissal

of the charge of light threats filed against him (Exh. 2, 2-A, 2-B & 3, pp. 81-84, Rec.). But the dismissal of the criminal complaint against respondent does not preclude his disbarment. Even granting that the acts committed by him may not be sufficient to make him criminally liable, the same nevertheless constitute gross misconduct and/or malpractice, which are grounds for disbarment. Moreover, the purpose of disbarment, as stated above, is not to punish the offender but to protect the courts and the public from his pernicious activities.

It is not amiss to mention at to juncture that respondent is facing two other administrative cases before this Honorable Court, filed by his own cousins, one involving an affidavit notarized by him and the other an answer to a complaint prepared and filed by him in a certain case (t.s.n., pp. 77- 78, July 30, 1979).

RECOMMENDATION

WHEREFORE, in view of the foregoing considerations, it is respectfully recommended that the respondent Atty. Jose C. Magat be disbarred.

In line with this recommendation, the undersigned counsel are filing together with this Report and Recommendation the corresponding complaint. Manila, September 19, 1979. 3

The Complaint filed by the Solicitor General also prays that respondent be disbarred, that his name be stricken off the roll of attorneys; and that his certificate of admission to the bar be recalled.

In his Answer to the Complaint, respondent reiterated the contentions in his Comment and added that his "sole defense" is anchored on the letter he wrote to the Bureau of Internal Revenue (BIR) on August 12, 1977, attached to his Answer as Annex " 2-A ", which reads:

J. C. MAGAT LAW OFFICE

R-512 Madrigal Building

Escolta, Manila

Tel. No. 48-23-01

CONFIDENTIAL

August 12, 1977

The Honorable Commissioner

Bureau of Internal Revenue

Quezon City

Sir:

On August 10, 1977, a certain Mr. Felicisimo Cruz came to my office and brought to my attention several books of accounts and invoices reflecting anomalies committed by the owner thereof, the A-1 Litho Photo and Litho Engraving company with offices at 528 San Fernando, Binondo, Manila.

I have no control of the documents, however, because they are always with the said Mr. Cruz and he told me that he stole an those documents from the company because he was allegedly dismissed illegally.

I have written the head of the company to have a meeting with the said Mr. Cruz in my office if he wants to see those documents again. In the meantime, knowing that the meeting will not immediately take place, I have written to your office with a view to examining the documents if they are again brought into my office by Mr. Cruz.

I am not sure you will he interested but if your office would be, you may send one of your men in my office until the meeting goes through.

Very truly yours,

(SGD.) JOSE C. MAGAT 4

Likewise attached to respondent's Answer to the Complaint as Annex "2" is the reply of the BIR to Atty. Magat's request that said office furnish him with a copy of his original letter. The reply reads:

October 25, 1979

Atty. Jose C. Magat

R-512 Madrigal Building

Escolta, Manila

Sir:

Upon your request, as per your letter to this Office dated October 19, 1979, which was received by the office of the Commissioner on October 22, 1979, enclosed is a xerox copy of your original letter to the Commissioner of Internal Revenue, dated August 12, 1977. The original letter is on file with the docket of the tax investigation report on A-1 Litho Photo and Litho Engraving Co. submitted by Special Agents of the Tax Fraud Division.

The said letter was received by the Records Division, BIR, Quezon City on September 6, 1977, and this was transmitted to the Tax Fraud Division, BIR, on September 7, 1977. The Post mark of the Manila Central Post Office on the envelope which contained said letter, bears the date August 16, 1977 p.m.

Very truly yours,

EFREN I. PLANA

Acting Commissioner of Internal

Revenue

By:

REYNANDO A. SUAREZ

Chief Tax Fraud Division

TAN 1549-655-7 5

On October 21, 1982, the case was set for hearing during which respondent appeared on his own behalf. Thereafter the Court resolved to consider the case submitted for resolution.

Upon the oral and documentary evidence, we find the charges substantiated and the Report and Recommendation of the Solicitor General thorough and well founded.

Although respondent's confidential letter to the BIR is dated August 12, 1977, or ostensibly a day after respondent's letter to Robert Ching, and prior to the raid on respondent's office on August 15, 1977, the BIR letter of October 25, 1979, supra, specifically stated "the Post mark of the Manila Central Post Office of the envelope which contained said letter, bears the date August 16, 1977 p.m. ". Evidently, respondent's letter was mailed the day after the raid on August 15, 1977 as an afterthought designed to stave off impending liability. His defense at the hearing that the Post Office was delayed in stamping the letter is puerile The presumption of regularity in the performance of official functions (Rule 131, Sec. 5 [m]) has not been overcome. Besides, if respondent were really motivated by the desire to expose tax anomalies, he could have written the BIR directly. There was no need to have written his letter (Exhibit "C") to Robert Ching.

The dismissal of the criminal complaint for Light Threats against respondent by the City Fiscal's Office (Exhibits "2", "2-A", "2-B" and "3", pp. 81-84, Record) will not preclude the fact that respondent has not exhibited honesty nor show trustworthiness in the discharge of his duties as a member of the Bar. The dismissal of the criminal complaint does not exonerate him of profession al misconduct.

The proper disciplinary action against respondent is disbarment for malpractice and gross misconduct. He has shown himself unfit for the office and unworthy of' the privileges which the law confers upon him. 6

The assisting of a client in a scheme which the attorney knows to be dishonest, or the conniving at a violation of law, are acts which justify disbarment. (In Re Terrel 2 Phil, 266, 267-268).

WHEREFORE, respondent Atty. Jose C. Magat is hereby disbarred; his name is ordered stricken off the Rollo of attorneys; and his Certificate of Admission to the Bar is hereby recalled.

SO ORDERED.

Teehankee (Acting C.J.), Makasiar, Guerrero, Abad Santos, Escolin, Vasquez, Relova and Gutierrez, Jr., JJ., concur.

Fernando, C.J., & Concepcion, J., are on leave.

Aquino and Plana JJ., took no part.

De Castro, J., I reserve my vote.

19. bagonon vs cerna 154 scra 593

G.R. No. L-35469 October 9, 1987

ENCARNACION BANOGON, ZOSIMA MUNOZ, and DAVIDINA MUNOZ, petitioners, vs.MELCHOR ZERNA, CONSEJO ZERNA DE CORNELIO, FRANCISCO ZERNA, and the HON. CIPRIANO VAMENTA, JR., Judge of the Court of First Instance of Negros Oriental (Branch III).

CRUZ, J.:

It's unbelievable. The original decision in this case was rendered by the cadastral court way back on February 9, 1926, sixty one years ago. A motion to amend that decision was filed on March 6, 1957, thirty one years later. This was followed by an amended petition for review of the judgment on March 18, 1957, and an opposition thereto on March 26, 1957. On October 11, 1971, or after fourteen years, a motion to dismiss the petition was filed. The petition was dismissed on December 8, 1971, and the motion for reconsideration was denied on February 14, 1972. 1 The petitioners then came to us on certiorari to question the orders of the respondent judge. 2

These dates are not typographical errors. What is involved here are errors of law and lawyers.

The respondent court dismissed the petition for review of the decision rendered in 1926 on the ground that it had been filed out of time, indeed thirty one years too late. Laches, it was held, had operated against the petitioners. 3

The petitioners contend that the said judgment had not yet become final and executory because the land in dispute had not yet been registered in favor of the private respondents. The said judgment would become so only after one year from the issuance of the decree of registration. If any one was guilty of laches, it was the private respondents who had failed to enforce the judgment by having the land registered in their the pursuant thereto. 4

For their part, the private respondents argue that the decision of February 9, 1926, became final and executory after 30 days, same not having been appealed by the petitioners during that period. They slept on their rights forthirty one years before it occurred to them to question the judgment of the cadastral court. In fact, their alleged predecessor-in-interest, Filomeno Banogon, lived for nineteen more years after the 1926 decision and did not see fit to challenge it

until his death in 1945. The herein petitioners themselves waited another twelve years, or until 195 7, to file their petition for review. 5

While arguing that they were not guilty of laches because the 1926 decision had not yet become final and executory because the land subject thereof had not yet been registered, the petitioners rationalize: "If an aggrieved party is allowed the remedy of re-opening the case within one year after the issuance of the decree, why should the same party be denied this remedy before the decree is issued? 6

Why not indeed? Why then did they not file their petition earlier? Why do they now pretend that they have all the time in the world because the land has not yet been registered and the one-year reglementary period has not yet expired?

Thinking to support their position, the petitioners cite Rivera v. Moran 7 where it was held:

... It is conceded that no decree of registration has been entered and section 38 of the Land Registration Act provides that a petition for review of such a decree on the grounds of fraud must be filed "within one year after entry of the decree." Giving this provision a literal interpretation, it may first blush seem that the petition for review cannot be presented until the final decree has been entered. But on further reflection, it is obvious that such could not have been the intention of the Legislatureand that what it meant would have been better expressed by stating that such petitioners must be presented before the expiration of one year from the entry of the decree. Statutes must be given a reasonable construction and there can be no possible reason for requiring the complaining party to wait until the final decree is entered before urging his claim of fraud. We therefore hold that a petition for review under section 38, supra, may be filed at any time the rendition of the court's decision and before the expiration of one year from the entry of the final decree of registration. (Emphasissupplied).

A reading thereof will show that it is against their contentions and that under this doctrine they should not have delayed in asserting their claim of fraud. Their delay was not only for thirty one days but for thirty one years.Laches bars their petition now. Their position is clearly contrary to law and logic and to even ordinary common sense.

This Court has repeatedly reminded litigants and lawyers alike:

"Litigation must end and terminate sometime and somewhere, and it is assent essential to an effective and efficient administration of justice that, once a judgment has become final, the winning party be not, through a mere subterfuge, deprived of the fruits of the verdict. Courts must therefore guard against any scheme calculated to bring about that result. Constituted as they are to put an end to controversies, courts should frown upon any attempt to prolong them." 8

There should be a greater awareness on the part of litigants that the time of the judiciary, much more so of this Court, is too valuable to be wasted or frittered away by efforts, far from commendable, to evade the operation of a decision final and executory, especially so, where, as shown in this case, the clear and manifest absence of any right calling for vindication, is quite obvious and indisputable. 9

This appeal moreover, should fail, predicated as it is on an insubstantial objection bereft of any persuasive force. Defendants had to display ingenuity to conjure a technicality. From Alonso v. Villamor, a 1910 decision, we have left no doubt as to our disapproval of such a practice. The aim of a lawsuit is to render justice to the parties according to law. Procedural rules are precisely designed to accomplish such a worthy objective. Necessarily, therefore, any attempt to pervert the ends for which they are intended deserves condemnation. We have done so before. We do so again. 10

Regarding the argument that the private respondents took fourteen years to move for the dismissal of the petition for review, it suffices to point out that an opposition thereto had been made as early as March 26, 1957, or nine days after the filing of the petition. 11 Moreover, it was for the petitioners to move for the hearing of the petition instead of waiting for the private respondents to ask for its dismissal. After all, they were the parties asking for relief, and it was the private respondents who were in possession of the land in dispute.

One reason why there is a degree of public distrust for lawyers is the way some of them misinterpret the law to the point of distortion in a cunning effort to achieve their purposes. By doing so, they frustrate the ends of justice and at the same time lessen popular faith in the legal profession as the sworn upholders of the law. While this is not to say that every wrong interpretation of the law is to be condemned, as indeed most of them are only honest errors, this Court must express its disapproval of the adroit and intentional misreading designed precisely to circumvent or violate it.

As officers of the court, lawyers have a responsibility to assist in the proper administration of justice. They do not discharge this duty by filing pointless petitions that only add to the workload of the judiciary, especially this Court, which is burdened enough as it is. A judicious study of the facts and the law should advise them when a case, such as this, should not be permitted to be filed to merely clutter the already congested judicial dockets. They do not advance the cause of law or their clients by commencing litigations that for sheer lack of merit do not deserve the attention of the courts.

This petition is DISMISSED, with costs against the petitioners. This decision is immediately executory. It is so ordered.

Teehankee, C.J., Narvasa and Paras, JJ., concur.

Gancayco, J., is on leave.

20.periquit vs nlrc 186 scra 724

G.R. No. 91298 June 22, 1990

CORAZON PERIQUET, petitioner, -versus-

NATIONAL LABOR RELATIONS COMMISSION and THE PHIL. NATIONAL

CONSTRUCTION CORPORATION (Formerly Construction Development Corp. of the Phils.), respondents.

Tabaquero, Albano & Associates for petitioner.

The Government Corporate Counsel for private respondent.

CRUZ, J.:

It is said that a woman has the privilege of changing her mind but this is usually allowed only in affairs of the heart where the rules are permissibly inconstant. In the case before us, Corazon Periquet, the herein petitioner, exercised this privilege in connection with her work, where the rules are not as fickle.

The petitioner was dismissed as toll collector by the Construction Development Corporation of the Philippines, private respondent herein, for willful breach of trust and unauthorized possession of accountable toll tickets allegedly found in her purse during a surprise inspection. Claiming she had been "framed," she filed a complaint for illegal dismissal and was sustained by the labor arbiter, who ordered her reinstatement within ten days "without loss of seniority rights and other privileges and with fun back wages to be computed from the date of her actual dismissal up to date of her actual reinstatement." 1 On appeal, this order was affirmed in toto by public respondent NLRC on August 29, 1980. 2

On March 11, 1989, almost nine years later, the petitioner filed a motion for the issuance of a writ of execution of the decision. The motion was granted by the executive labor arbiter in an order dated June 26, 1989, which required payment to the petitioner of the sum of P205,207.42 "by way of implementing the balance of the judgment amount" due from the private respondent. 3 Pursuant thereto, the said amount was garnished by the NLRC sheriff on July 12, 1989. 4 On September 11, 1989, however, the NLRC sustained the appeal of the CDCP and set aside the order dated June 20, 1989, the corresponding writ of execution of June 26, 1989, and the notice of garnishment. 5

In its decision, the public respondent held that the motion for execution was time-barred, having been filed beyond the five-year period prescribed by both the Rules of Court and the Labor Code. It also rejected the petitioner's claim that she had not been reinstated on time and ruled as valid the two quitclaims she had signed waiving her right to reinstatement and acknowledging settlement in full of her back wages and other benefits. The petitioner contends that this decision is tainted with grave abuse of discretion and asks for its reversal. We shall affirm instead.

Sec. 6, Rule 39 of the Revised Rules of Court, provides:

SEC. 6. Execution by motion or by independent action. — A judgment may be executed on motion within five (5) years from the date of its entry or from the date it becomes final and executory. After the lapse of such time, and before it is barred by the statute of limitations, a judgment may be enforced by action.

A similar provision is found in Art. 224 of the Labor Code, as amended by RA 6715, viz.

ART. 224. Execution of decision, orders, awards. — (a) The Secretary of Labor and Employment or any Regional Director, the Commission or any Labor Arbiter or Med-

Arbiter, or the Voluntary Arbitrator may, motu propio, or on motion of any interested party, issue a writ of execution on a judgment within five (5) years from the date it becomes final and executory, requiring a sheriff or a duly deputized officer to execute or enforce a final decision, order or award. ...

The petitioner argues that the above rules are not absolute and cites the exception snowed in Lancita v. Magbanua, 6 where the Court held:

Where judgments are for money only and wholly unpaid, and execution has been previously withheld in the interest of the judgment debtor, which is in financial difficulties, the court has no discretion to deny motions for leave to issue execution more than five years after the judgments are entered. (Application of Molnar, Belinsky, et al. v. Long Is. Amusement Corp., I N.Y.S, 2d 866)

In computing the time limited for suing out of an execution, although there is authority to the contrary, the general rule is that there should not be included the time when execution is stayed, either by agreement of the parties for a definite time, by injunction, by the taking of an appeal or writ of error so as to operate as a supersedeas, by the death of a party, or otherwise. Any interruption or delay occasioned by the debtor will extend the time within which the writ may be issued without scire facias.

xxx xxx xxx

There has been no indication that respondents herein had ever slept on their rights to have the judgment executed by mere motions, within the reglementary period. The statute of limitation has not been devised against those who wish to act but cannot do so, for causes beyond their central.

Periquet insists it was the private respondent that delayed and prevented the execution of the judgment in her favor, but that is not the way we see it. The record shows it was she who dilly-dallied.

The original decision called for her reinstatement within ten days from receipt thereof following its affirmance by the NLRC on August 29, 1980, but there is no evidence that she demanded her reinstatement or that she complained when her demand was rejected. What appears is that she entered into a compromise agreement with CDCP where she waived her right to reinstatement and received from the CDCP the sum of P14,000.00 representing her back wages from the date of her dismissal to the date of the agreement. 7

Dismissing the compromise agreement, the petitioner now claims she was actually reinstated only on March 16, 1987, and so should be granted back pay for the period beginning November 28, 1978, date of her dismissal, until the date of her reinstatement. She conveniently omits to mention several significant developments that transpired during and after this period that seriously cast doubt on her candor and bona fides.

After accepting the sum of P14,000.00 from the private respondent and waiving her right to reinstatement in the compromise agreement, the petitioner secured employment as kitchen dispatcher at the Tito Rey Restaurant, where she worked from October 1982 to March 1987. According to the certification issued by that business, 8 she received a monthly compensation of P1,904.00, which was higher than her salary in the CDCP.

For reasons not disclosed by the record, she applied for re-employment with the CDCP and was on March 16,1987, given the position of xerox machine operator with a basic salary of P1,030.00 plus P461.33 in allowances, for a total of P1,491.33 monthly. 9

On June 27, 1988; she wrote the new management of the CDCP and asked that the rights granted her by the decision dated August 29, 1980, be recognized because the waiver she had signed was invalid. 10

On September 19, 1988, the Corporate Legal Counsel of the private respondent (now Philippine National Construction Corporation) recommended the payment to the petitioner of the sum of P9,544.00, representing the balance of her back pay for three years at P654. 00 per month (minus the P14,000.00 earlier paid). 11

On November 10, 1988, the petitioner accepted this additional amount and signed another Quitclaim and Release reading as follows:

KNOW ALL MEN BY THESE PRESENTS:

THAT, I CORAZON PERIQUET, of legal age, married and resident of No. 87 Annapolis St., Quezon City, hereby acknowledged receipt of the sum of PESOS: NINE THOUSAND FIVE HUNDRED FORTY FOUR PESOS ONLY (P9,544.00) Philippine currency, representing the unpaid balance of the back wages due me under the judgment award in NLRC Case No. AB-2-864-79 entitled "Corazon Periquet vs. PNCC- TOLLWAYS" and I further manifest that this payment is in full satisfaction of all my claims/demands in the aforesaid case. Likewise, I hereby manifest that I had voluntarily waived reinstatement to my former position as TOLL TELLER and in lieu thereof, I sought and am satisfied with my present position as XEROX MACHINE OPERATOR in the Central Office.

Finally, I hereby certify that delay in my reinstatement, after finality of the Decision dated 10 May 1979 was due to my own fault and that PNCC is not liable thereto.

I hereby RELEASE AND DISCHARGE the said corporation and its officers from money and all claims by way of unpaid wages, separation pay, differential pay, company, statutory and other benefits or otherwise as may be due me in connection with the above-entitled case. I hereby state further that I have no more claims or right of action of whatever nature, whether past, present, future or contingent against said corporation and its officers, relative to NLRC Case No. AB-2-864-79.

IN WITNESS WHEREOF, I have hereunto set my hand this 10th day of November 1988 at Mandaluyong, Metro Manila. (Emphasis supplied.) 12

The petitioner was apparently satisfied with the settlement, for in the memorandum she sent the PNCC Corporate Legal Counsel on November 24, 1988, 13 she said in part:

Sir, this is indeed my chance to express my gratitude to you and all others who have helped me and my family enjoy the fruits of my years of stay with PNCC by way of granting an additional amount of P9,544.00 among others ...

As per your recommendation contained therein in said memo, I am now occupying the position of xerox machine operator and is (sic) presently receiving a monthly salary of P2,014.00.

Reacting to her inquiry about her entitlement to longevity pay, yearly company increases and other statutory benefits, the private respondent adjusted her monthly salary from P2,014.00 to P3,588.00 monthly.

Then the lull. Then the bombshell.

On March 11, 1989, she filed the motion for execution that is now the subject of this petition.

It is difficult to understand the attitude of the petitioner, who has blown hot and cold, as if she does not know her own mind. First she signed a waiver and then she rejected it; then she signed another waiver which she also rejected, again on the ground that she had been deceived. In her first waiver, she acknowledged full settlement of the judgment in her favor, and then in the second waiver, after accepting additional payment, she again acknowledged fun settlement of the same judgment. But now she is singing a different tune.

In her petition she is now disowning both acknowledgments and claiming that the earlier payments both of which she had accepted as sufficient, are insufficient. They were valid before but they are not valid now. She also claimed she was harassed and cheated by the past management of the CDCP and sought the help of the new management of the PNCC under its "dynamic leadership." But now she is denouncing the new management-for also tricking her into signing the second quitclaim.

Not all waivers and quitclaims are invalid as against public policy. If the agreement was voluntarily entered into and represents a reasonable settlement, it is binding on the parties and may not later be disowned simply because of a change of mind. It is only where there is clear proof that the waiver was wangled from an unsuspecting or gullible person, or the terms of settlement are unconscionable on its face, that the law will step in to annul the questionable transaction. But where it is shown that the person making the waiver did so voluntarily, with full understanding of what he was doing, and the consideration for the quitclaim is credible and reasonable, the transaction must be recognized as a valid and binding undertaking. As in this case.

The question may be asked: Why did the petitioner sign the compromise agreement of September 16, 1980, and waive all her rights under the judgment in consideration of the cash settlement she received? It must be remembered that on that date the decision could still have been elevated on certiorari before this Court and there was still the possibility of its reversal. The petitioner obviously decided that a bird in hand was worth two on the wing and so opted for the compromise agreement. The amount she was then waiving, it is worth noting, had not yet come up to the exorbitant sum of P205,207.42 that she was later to demand after the lapse of eight years.

The back pay due the petitioner need not detain us. We have held in countless cases that this should be limited to three years from the date of the illegal dismissal, during which period (but not beyond) the dismissed employee is deemed unemployed without the necessity of proof. 14 Hence, the petitioner's contention that she should be paid from 1978 to 1987 must be rejected, and even without regard to the fact (that would otherwise have been counted against her) that she was actually employed during most of that period.

Finally, the petitioner's invocation of Article 223 of the Labor Code to question the failure of the private respondent to file a supersedeas bond is not well-taken. As the Solicitor General correctly points out, the bond is required only when there is an appeal from the decision with a monetary award, not an order enforcing the decision, as in the case at bar.

As officers of the court, counsel are under obligation to advise their clients against making untenable and inconsistent claims like the ones raised in this petition that have only needlessly taken up the valuable time of this Court, the Solicitor General, the Government Corporate Counsel, and the respondents. Lawyers are not merely hired employees who must unquestioningly do the bidding of the client, however unreasonable this may be when tested by their own expert appreciation of the pertinent facts and the applicable law and jurisprudence. Counsel must counsel.

WHEREFORE, the petition is DENIED, with costs against the petitioner. It is so ordered.

Narvasa (Chairman), Gancayco, Griño-Aquino and Medialdea, JJ., concur.

21. meralco vs ca 187 scra 200

G.R. No. 84282 March 6, 1990

MANILA ELECTRIC COMPANY, petitioner, -versus-

NATIONAL LABOR RELATIONS COMMISSION and ISAGANI V. DE LA CRUZ, respondent.

Atilano S. Guevarra, Jr., Jose v. Balaoing and Gil S. San Diego for petitioner.

Teotico R. Quevedo for private respondent.

GANCAYCO, J.:

The propriety of the reinstatement of an employee as ordered by the National Labor Relations Commission is in issue in this Petition.

The record of the case discloses that the herein private respondent Isagani V. De La Cruz was an employee of the herein petitioner Manila Electric Company. His principal duties include reading electric (consumption) meters in certain districts in the City of Manila as well as delivering the corresponding notices of electric consumption to the customers of the petitioner firm. He was employed in the company since June 30, 1980.

It appears that on October 20, 1985, a Sunday, the private respondent and his brother-in-law, a certain Jaime R. Munera of Tondo, Manila, were in the vicinity of the PNR Compound in Paco, Manila. Some residents in the area reported their presence to the barangay authorities who in turn invited them over to the police station for questioning. Two residents of the locality filed their respective sworn statements to the effect that the private respondent and his brother-in-law had been introducing themselves to certain residents as inspectors of the petitioner firm and, in the process, had been extorting money from them in relation to some alleged illegal electrical connections discovered by the two.

A certain Edilberto O. Sierra, line patrol inspector of the petitioner firm, was present during the police investigation. He stated that an electric meter was indeed illegally installed at the residence of one Mrs. Ortaleza of No. 1332 PNR Compound, Paco, Manila inasmuch as the same had been previously recorded as the electric meter installed at the residence of one Agueda A. Cajigal of Sta. Ana, Manila which,

however, had been recalled earlier and duly replaced. The inspector also said that the private respondent had no authority to install electric meters.

It also appears that two criminal cases were instituted against the private respondent, one for robbery-extortion filed by Encarnacion Alipio, a resident of Paco, Manila, and another for qualified theft filed by Edilberto Sierra, the inspector. The first case was dismissed for failure to prosecute. The other case was likewise dismissed on the ground of insufficient evidence.

On December 2, 1985, the private respondent was preventively suspended by petitioner. Thereafter, or on December 9, 1985, the petitioner initiated its own administrative investigation of the matter. The private respondent denied being responsible for any misconduct. He submitted a sworn statement alleging that on October 20, 1985, his brother-in-law wanted to see a certain friend at the PNR Compound in Paco, Manila and that he agreed to accompany him; that on their way to the PNR compound, they went to Sta. Ana, Manila to pull out the inactivated electric meter of Agueda A. Cajigal which he failed to pull out a few days earlier as instructed by his superiors because it would have been inconvenient for him to perform his meter-reading duties while carrying around an electric meter; that upon their arrival in Paco, Manila, he noticed that the residence of Mrs. Ortaleza apparently had an electrical service connection but did not have an electric meter and that accordingly, he wanted to confront her; that his brother-in-law talked to Mrs. Ortaleza; that his brother-in-law installed the inactivated electric meter at the residence of Mrs. Ortaleza; that he objected to what his brother-in-law did; that the barangay authorities arrived and asked them to identify themselves; and that despite having identified themselves, they were brought to the police station. He denied having extorted money from anybody. His brother-in-law admitted having talked to Mrs. Ortaleza and having installed the inactivated electric meter at her residence but added that he was merely playing a prank on her inasmuch as she looked very nervous. Nonetheless, he denied having extorted money from anyone.

On March 3, 1986, the private respondent was dismissed from his employment. This prompted him to file a Complaint for illegal dismissal against the petitioner before the National Labor Relations Commission. The case was docketed as NLRC-NCR Case No. 5-2098-86.

In due time, the labor arbiter assigned to the case decided in favor of the petitioner on the basis of position papers submitted by the parties, and without conducting a clarificatory hearing. The labor arbiter observed that the admission made by the brother-in-law of the private respondent to the effect that he was the one who installed the inactivated electric meter at the residence of Mrs. Ortaleza is contrary to common experience and was probably made just to save his brother-in-law, the private respondent, from losing his job. The labor arbiter also found the allegations of the private respondent and his brother-in-law too incredible to believe. The pertinent portions of the decision of the labor arbiter are as follows —

. . . the admission of complainant's brother-in-law that he was the one who installed the pulled-out or frozen electric meter of a certain customer, Agueda A. Cajigal to the residence of Lydia F. Ortaleza, over the alleged vehement objections of complaint, is of no moment, considering that such an allegation is too preposterous to be taken as the naked truth, because it is contrary to nature, reason or common sense. It is our view that such insinuation was resorted to by them, in order to save the skin of complainant who has nothing to lose, but everything to gain in such a situation.

. . . . The denial and alibi that was given by the complainant is too hard to believe, considering that the incident occurred during his off-duty (hours) and that, he is not supposed to (n)or confront respondent's customers, but only to report the existence of any illegal electrical connections. Moreover, complainant failed to show reason why the

witnesses who testified against him and his brother-in-law during the police investigation of October 20, 1985, did so, if they were not telling the truth.

Talking all things into consideration it would utterly be unfair and an injustice to respondent company to retain the complaint in the service, so that, we could safely conclude that termination of complainant was for cause. 1

This observation notwithstanding, the labor arbiter held that inasmuch as the private respondent was put under preventive suspension for more than 30 days, the petitioner violated petition 4, Rule XIV of the Rules implementing Batas Pambansa Blg. 130 which provides that no preventive suspension shall last longer than 30 days and that, accordingly, the petitioner firm should pay the private respondent his salary corresponding to the period of his preventive suspension in excess of the maximum period, i.e., the amount of P5,542.00. The labor arbiter also ruled that notwithstanding his just dismissal, the private respondent was entitled to some financial assistance for reasons of possession in the amount of one-half month salary for every year of service, i.e., P6,927.50, thus bringing the total amount in favor of the private respondent to P12,469.50. 2

The private respondent brought an appeal to the Fourth Division of the Commission on the ground that the decision of the labor arbiter is contrary to law and the facts of the case. 3 In a decision promulgated on July 18, 1988, 4 the Commission set aside the appealed decision and held that the private respondent was illegally dismissed. The Commission directed the petitioner firm to reinstate the private respondent, without deprivation of his seniority rights, and to pay him backwages effective March 5, 1987, until his actual reinstatement. The petitioner firm was also instructed to pay the private respondent his two months salary withheld during the period of his preventive suspension in excess of the 30-day maximum period allowed by law, i.e., from January 2, 1986 to March 3, 1986. The Commission likewise ruled that in the event that reinstatement is not feasible, the petitioner firm should pay the private respondent the corresponding separation benefits.

The Commission observed that the private respondent was never given the chance to confront his accusers and that was denied procedural due process during the company level investigation. The Commission also observed that the charges against him seemed baseless and that he was a victim of discrimination on the part of the petitioner firm. The Commission likewise decried the fact that the labor arbiter did not conduct a hearing on these matters despite having been informed by the private respondent that he (the private respondent) was not able to confront his accusers. The pertinent portions of the Decision of the Commission are as follows —

We are not fully impressed by the foregoing finding and conclusions of the Labor Arbiter. After a thorough review and evaluation of the position papers as well as the pertinent documents and arguments of the parties, We are more inclined to sustain the position of complainant that, indeed, he was unjustly dismissed from the service by (the) management of respondent company, considering the manner and attendant circumstances surrounding his termination. We thus find the Labor Arbiter to have gravely abused his discretion in adopting a one-sided procedure by admitting and considering unverified statements and documents submitted by respondent without finding the necessity of a clasificatory hearing, at least, to enable complainant to confront his accusers. Such proceeding was necessary as complainant was denied of that opportunity during the company level investigation. Hence, such failure or oversight of the Arbiter amounts to denial and deprivation of herein complainant of procedural due process, vitiating the integrity of the proceedings below.

We further find the Labor Arbiter to have committed serious errors in his findings and conclusions. A mere reading of his factual conclusions patently indicates a virtual adoption of the position and arguments of respondent which are unsupported by clear and convincing evidence. To Our mind, the conclusions of the Arbiter are grotesquely erroneous for being entirely based on assumptions and surmises, nay hearsay evidence, unworthy of Our consideration.

xxx xxx xxx

From the facts on record, the following relevant material pieces of evidence emerge which the Labor Arbiter failed to fully appreciate and consider, namely:

1. Complainant was denied of procedural due process during the company level investigation. The accusers of complainant were never presented to be confronted by the complainant, nor their statements taken by the company investigating officer. The records could neither show that the alleged statements of . . . the purported accusers of herein complainant . . . were ever shown complainant for possible denial or admission. . . . said written declaratin only surfaced during the arbitration proceedings as attachments to respondent's position paper, a fact undisputed by the latter.

2. The criminal charges against complainant are wholly unfounded and baseless. The complaint . . . for alleged "Robbery Extortion" was dismissed . . . for failure to prosecute, implying that the charges are fabricated and intended to harass herein complainant in retaliation by . . . (his) accusers for being discovered and confronted . . . (about) their illegal power connections. On the other hand, the case of "Qualified Theft" filed by Edilberto Sierra, Line Patrol Inspector of respondent against complainant was likely (sic) dismissed for insufficiency of evidence, hence also implying some ulterior motives on the part of the accusers. By the very nature of his job, Sierra should be the first one to discover the illegal power line connections of his co-accusers before complainant would do, had the latter not been in the area of the PNR Compound on October 20, 1985.

3. Respondent company appears to have discriminated against complainant by singling him out, there being no evidence on record as to whether the former took any steps to investigate the illegal power line connections discovered by complainant. It is rather unusual why Sierra zeroed in on the alleged theft of company property by complainant and he did not take any steps, or much less recommend one, on the authors of the illegal power line connections. . . .

4. It has remained undisputed that complainant had a lawful or justifiable reason in pulling out the frozen electric meter at the former residence of Agueda Cajigal at Punta, Sta. Ana, Manila. Consequently, the charges of qualified theft against complainant could not prosper for lack of factual and legal basis. . . .

5. Complainant had a valid explanation for being at the PNR Compound, Paco, Manila on October 20, 1985 after coming from Punta, Sta. Ana because they were looking for the friend of his brother-in-law, Jaime Muñera . . .

6. There is no direct evidence clearly showing that complainant had allegedly committed serious or grave misconduct as would justify his dismissal. . . .

The circumstances about the October 20, 1985 incident at the PNR Compound was candidly explained by Jaime Muñera, complainant's brother-in-law, during the company investigation . . .

It is clear from the foregoing statements of Munera that he alone was responsible for the installation of the pulled-out electric meter ofCajigal which he premised by doing it for fun upon observing that the store-owner . . . looked nervous when (she was) confronted about her illegal connection. . . . An admission against interest only binds the person making it. . . .

xxx xxx xxx

In sum, the company investigation was not only defective and irregular but it (also) failed to establish and come up with clear and convincing evidence to convince Us with moral certainty that complainant is, indeed, guilty of the charges of serious misconduct and/or breach of trust reposed upon his position as meter reader of respondent company. The identities of the accusers of complainant who purportedly executed the statements relied upon by respondent have not been duly established both at the company level investigation and at the arbitration stage. In the absence of authentication or ratification by the persons allegedly executing them, said documents are mere scraps of paper with doubtful or dubious probative value. The Labor Arbiter should either have disregarded said documents or set a clarificatory hearing by issuing summons upon said persons to appear before him.

xxx xxx xxx

We are not saying that complainant should be commended. We do recognize that complainant to some degree shall be subjected to disciplinary action for his inability to prevail upon his brother-in-law . . . . But we could not recognize said incident alone amounting to serious misconduct on the part of complainant as would justify his outright dismissal from the service. . . .

xxx xxx xxx

In the instant case, respondent had not even established the charges of breach of trust against complainant by preponderance of evidence. . . .

There is also doubt on whether or not the position of complainant de la Cruz as meter reader involves one of trust and confidence with respect to the "use and possession of company property" . . . the principal duties of complainant being "to read electric meters and deliver notices of electric consumption" . . . .

xxx xxx xxx

Even assuming that respondent in the instant case may have some cause or ground to impose disciplinary action upon complainant, the manner in which it conducted its company investigation failed to observe fair play as the accusers of complainant were never presented for confrontation, hence, amounting to deprivation of complainant of the essential requirements to procedural due process. And during the arbitration proceedings, complainant was neither afforded the opportunity to confront his accusers.

xxx xxx xxx 5

Not satisfied therewith, the petitioner firm elevated the case to this Court on the grounds that the Commission and its own Rules when it rendered the questioned Decision, the said Decision goes against established jurisprudence, and that the Commission committed a grave abuse of discretion when it rendered the same. The petitioner maintains that the Revised Rules of the National Labor Relations Commission, the labor arbiter is given the discretion to determine whether or not a clarificatory hearing is necessary and, accordingly, the Commission should not fault him for exercising his discretion. The petitioner firm also argues that the Commission did not adhere to the pronouncements of this Court to the effect that the findings of fact made by the labor arbiter, when supported by substantial evidence, should not be disturbed. The issuance of a temporary restraining order was likewise sought by the petitioner petitioner firm.

The Court notes that the main pleading is erroneously captioned "Petition for Review." This error notwithstanding, and in the interest of justice, the Court resolved to treat the same as a special civil action for certiorari in view of the jurisdictional issues raised herein. Moreover, labor cases are reviewed by this Court on a special civil action for certiorari. 6

On August 15, 1988, the Court resolved to issue a temporary restraining order enjoining the respondents from enforcing the questioned Decision of the Commission. 7

On September 14, 1988, the Office of the Solicitor General submitted its Comment on the Petition. 8 On November 7, 1988, the private respondent submitted his Comment. 9 In fine, the respondents submit that the Decision of the Commission is in accord with the law and jurisprudence and that, accordingly, the Petition should be dismissed for lack of merit.

On November 23, 1988, the Court resolved to give due course to the Petition. 10 In due time, the case was deemed submitted for decision.

After a careful evaluation of the entire record of the case, the Court finds the instant Petition devoid of merit. As pointed out by the Solicitor General, although Section 3, Rule VII of the Revised Rules of the National Labor Relations Commission gives the labor arbiter the discretion to determine if a hearing is necessary under the premises, this discretion must be exercised prudently. In the case at bar, it appears that notwithstanding the manifestation of the private respondent that he never got the chance to confront his accusers, the labor arbiter went on to resolve the case on the basis of position papers. Thus, the Commission correctly observed that the labor arbiter committed a grave abuse of discretion in this particular instance.

It is a well-known rule that before an employer may dismiss an employee he must be afforded due process which means among others, the opportunity to confront the witnesses against him and to adduce evidence in his defense. Failing in this, the dismissal of an employee is not lawful and should be aside.

The findings of fact made by the labor arbiter may not be disturbed by the reviewing authority as long as the same is supported by substantial evidence. In this case, the Commission was of the view that the labor arbiter, committed serious errors in the appreciation of the facts of the case and, precisely due to the same, the Commission went on to its own evaluation of the said facts. The action taken by the Commission in this regard was certainly called for considering following matters —

(1) The private respondent had a plausible explanation for pulling out an inactivated electric meter and for in being at the PNR compound in Paco, Manila on October 20, 1985;

(2) Only his brother-in-law admitted sole responsibility for the unfortunate incident in question;

(3) The private respondent never got the chance to confront his accusers; and

(4) The two criminal cases instituted against the private respondent were dismissed, vis-a-vis the fact that his accusers in the terminal cases were also his accusers in the administrative proceeding.

In sum, therefore, the petitioner firm has failed to satisfactorily demonstrate any jurisdictional error on the part of the National Labor Relations Commission. At the very least, doubt has attended the propriety of the dismissal of the private respondent and that this doubt should be resolved in favor of the workingman. 11

WHEREFORE, in view of the foregoing, the instant Petition is hereby DISMISSED for lack of merit. The temporary restraining order issued by the Court on August 15, 1988 is hereby lifted. The Court makes no pronouncement as to costs.

SO ORDERED.

Narvasa, Cruz, Griño-Aquino and Medialdea, JJ., concur.

22. br sebastian enterprises inc vs ca 206 scra 28

G.R. No. L-41862 February 7, 1992

B. R. SEBASTIAN ENTERPRISES, INC., petitioner, vs.HON. COURT OF APPEALS, EULOGIO B. REYES, NICANOR G. SALAYSAY, in his capacity as Provincial Sheriff of Rizal, and ANTONIO MARINAS, in his capacity as Deputy Sheriff, respondents.

Benito P. Fabie for petitioner.

Ildefonso de Guzman-Mendiola for private respondents.

DAVIDE, JR., J.:

This is a petition for prohibition and mandamus, with prayer for preliminary injunction, to review the Resolution dated 10 November 1975 of respondent Court of Appeals in C.A.-G.R. No. 53546-R denying petitioner's motion to reinstate its appeal, earlier dismissed for failure to file the Appellant's Brief.

The material operative facts of this case, as gathered from the pleadings of the parties, are not disputed.

Eulogio B. Reyes, now deceased, filed an action for damages with the then Court of First Instance (now Regional Trial Court) of Rizal, Pasay City Branch, against the Director of Public Works, the Republic of the Philippines and petitioner herein, B. R. Sebastian Enterprises, Inc. The case was docketed as Civil Case No. 757-R. 1

On 7 May 1973, the trial court rendered a decision finding petitioner liable for damages but absolving the other defendants. 2

Petitioner, thru its counsel, the law firm of Baizas, Alberto and Associates, timely appealed the adverse decision to the respondent Court of Appeals, which docketed the case as C.A.-G.R. No. 53546-R. 3

During the pendency of the appeal, the plaintiff-appellee therein, Eulogio B. Reyes, died. Upon prior leave of the respondent Court, he was substituted by his heirs — Enrique N. Reyes, Felicisima R. Natividad, Donna Marie N. Reyes and Renne Marie N. Ryes — who are now the private respondents in this present petition.

On 19 February 1974, petitioner, thru its then counsel of record, received notice to file Appellant's Brief within 45 days from receipt thereof. It had, therefore, until 5 April 1974 within which to comply.

Counsel for petitioner failed to file the Brief; thus, on 9 July 1974, respondent Court issued a Resolution requiring said counsel to show cause why the appeal should not be dismissed for failure to file the Appellant's Brief within the reglementary period. 4 A copy of this Resolution was received by counsel for petitioner on 17 July 1974. 5

As the latter failed to comply with the above Resolution, respondent Court, on 9 September 1974, issued another Resolution this time dismissing petitioner's appeal:

It appearing that counsel for defendant-appellant failed to show cause why the appeal should not be dismissed (for failure to file the appellant's brief within the reglementary period which expired on April 5, 1974) within the period of 10 days fixed in the resolution of July 9, 1974, copy of which was received by said counsel on July 17, 1974; . . . 6

On 28 September 1974, petitioner, this time thru the BAIZAS LAW OFFICE, filed a motion for reconsideration 7 of the resolution dismissing its appeal alleging that as a result of the death of Atty. Crispin Baizas, senior partner in the law firm of BAIZAS, ALBERTO & ASSOCIATES, the affairs of the said firm are still being settled between Atty. Jose Baizas (son of Crispin Baizas) and Atty. Ruby Alberto, the latter having established her own law office; furthermore, Atty. Rodolfo Espiritu, the lawyer who handled this case in the trial court and who is believed to have also attended to the preparation of the Appellant's Brief but failed to submit it through oversight and inadvertence, had also left the firm.

In its Resolution of 9 October 1974, respondent Court denied the motion for reconsideration, stating that:

Upon consideration of the motion of counsel for defendant-appellant, praying, on the grounds therein stated, that the resolution of September 9, 1974, dismissing the appeal, be set aside, and that appellant be granted a reasonable period of time within which to file its brief: considering that six (6) months had elapsed since the expiration of the original period and more than two and one-half (2-½) months since counsel received copy of the resolution requiring him to show cause why the appeal should not be dismissed for failure to file brief; Motion Denied. 8

No action having been taken by petitioner from the above Resolution within the period to file a petition for review, the same became final and executory, and the records of the case were remanded to the court of origin for execution.

The trial court issued a writ of execution on 21 October 1975. 9 Pursuant thereto, respondent Provincial Sheriff and Deputy Sheriff attached petitioner's Hough Pay Loader with Hercules Diesel Engine and issued on 5 November 1975 a Notice of Sheriff's Sale, scheduling for Friday, 14 November 1975 at 10:00 o'clock in the morning, the auction sale thereof. 10

On 6 November 1975, petitioner filed with respondent Court a Motion to Reinstate Appeal with Prayer for Issuance of a Writ of Preliminary Injunction 11 dated 5 November 1975, and containing the following allegations:

1. That late as it may be, this Honorable Court has the inherent power to modify and set aside its processes, in the interest of justice, especially so in this case when the case was dismissed on account of the untimely death of Atty. Crispin D. Baizas, counsel of BRSEI (B.R. Sebastian Enterprises, Inc.).

2. That to dismiss the case for failure to file the appellant's brief owing to the untimely death of the late Atty. Crispin D. Baizas would be tantamount to denying BRSEI its (sic) day in court, and is, therefore, a clear and unmistakable denial of due process on the part of BRSEI.

3. That to reinstate BRSEI's appeal would not impair the rights of the parties, since all that BRSEI is asking for, is a day in court to be heard on appeal in order to have the unfair, unjust and unlawful decision, set aside and reversed.

The respondent Court denied the said motion in its Resolution of 10 November 1975: 12

. . . it appearing that appellant was represented by the law firm of Baizas, Alberto & Associates, and while Atty. Baizas died on January 16, 1974, his law firm was not dissolved since it received the notice to file brief on February 19, 1974, and the copy of the Resolution of July 9, 1974, requiring appellant to show cause why the appeal should not be dismissed was received by the law firm on July 17, 1974 and no cause was shown; . . .

Hence, on 13 November 1975, petitioner filed the original petition 13 in this case against the Court of Appeals, Eulogio B. Reyes, Nicanor G. Salaysay, as Provincial Sheriff of Rizal, and Antonio Marinas, as Deputy Sheriff. The petition likewise prayed for the issuance of a Temporary Restraining Order.

In the Resolution of 13 November 1975, this Court required respondents to comment on the petition within ten (10) days from receipt thereof, and issued a Temporary Restraining Order. 14

On 12 January 1976, respondents filed a Partial Comment on the Petition with a Motion to Suspend the Proceedings 15 on the ground that respondent Eulogio B. Reyes is already dead and his lawful heirs had already been ordered substituted for him during the pendency of the appeal before the respondent Court of Appeals.

In the Resolution of 21 January 1976, this Court ordered petitioner to amend its petition within then (10) days from receipt of notice, and suspended the filing of respondents' Comment until after the amendment is presented and admitted. 16

In compliance therewith, petitioner filed on 9 February 1976 a Motion for Leave to Admit Amended Petition to which it attached the said Amended Petition. 17 The amendment consists in the substitution of Eulogio B. Reyes with his heirs.

This Court admitted the Amended Petition 18 and required the respondents to file their Comment within ten (10) days from notice thereof, which they complied with on 5 April 1976. 19 Petitioner filed its Reply to the Comment on 29 April 1976.20

In the Resolution of 12 May 1976, this Court denied the petition for lack of merit: 21

L-41862 (B.R. Sebastian Enterprises, Inc. vs. Court of Appeals, et. al.). — Considering the allegations, issues and arguments adduced in the amended petition for review on certiorari of the decision of the Court of Appeals, respondents' comment thereon, as well as petitioner's reply to said comment, the Court Resolved to DENY the petition for lack of merit.

However, on 31 May 1976, petitioner filed a motion for its reconsideration 22 claiming that since it was deprived of the right to appeal without fault on its part, the petition should be given due course.

Respondents submitted on 22 July 1976 their Comment 23 to said Motion for Reconsideration.

On 10 September 1976, this Court resolved to reconsider 24 its Resolution of 12 May 1976 and required both parties to submit simultaneously their respective Memoranda within thirty (30) days from notice thereof.

Petitioner submitted its Memorandum on 5 November 1976 25 while respondents submitted theirs on 22 November 1976. 26 On 29 November 1976, this Court deemed the present case submitted for decision. 27

The sole issue to be addressed is whether or not the respondent Court of Appeals gravely abused its discretion in denying petitioner's motion to reinstate its appeal, previously dismissed for failure to file the Appellant's Brief.

Petitioner, in its Memorandum, extensively expounds on respondent Court's authority to reinstate dismissed appeals and cites as basis thereof the decision of this Court in Heirs of Clemente Celestino vs. Court of Appeals, et al., 28 Indeed, in said case, this Court affirmed the

resolution of the Court of Appeals — reinstating an appeal after being dismissed for failure by the appellants therein to file their brief, and after entry of judgment and remand of the records to the lower court — and cancelled the entry of judgment, requiring the lower court to return the records to the Court of Appeals and admit appellant's brief. Said case, however, had a peculiar or singular factual situation" which prompted the Court of Appeals to grant the relief and which this Court found sufficient to justify such action. As this Court, through Associate Justice Ramon Aquino, said:

We are of the opinion that under the peculiar or singular factual situation in this case and to forestall a miscarriage of justice the resolution of the Court of Appeals reinstating the appeal should be upheld.

That Court dismissed the appeal of the Pagtakhans in the mistaken belief that they had abandoned it because they allegedly failed to give to their counsel the money needed for paying the cost of printing their brief.

But presumably the Appellate Court realized later that fraud might have been practised on appellants Pagtakhans since their oppositions were not included in the record on appeal. In (sic) sensed that there was some irregularity in the actuations of their lawyer and that Court (sic) itself had been misled into dismissing the appeal.

Counsel for the Pagtakhans could have furnished them with copies of his motions for extension of time to file brief so that they would have known that the Court of Appeals had been apprised of their alleged failure to defray the cost of printing their brief and they could have articulated their reaction directly to the Court. Counsel could have moved in the Appellate Court that he be allowed to withdraw from the case or that the Pagtakhans be required to manifest whether they were still desirous of prosecuting their appeal or wanted a mimeographed brief to be filed for them (See People vs. Cawili, L-30543, August 31, 1970, 34 SCRA 728). Since counsel did none of those things, his representation that the appellants had evinced lack of interest in pursuing their appeal is difficult to believe.

If the appellate court has not yet lost its jurisdiction, it may exercise its discretion in reinstating an appeal, having in mind the circumstances obtaining in each case and the demands of substantial justice (Alquiza vs. Alquiza, L-23342, February 10, 1968, 22 SCRA 494, 66 O.G. 276; C. Vda. de Ordoveza vs. Raymundo, 62 Phil. 275; Chavez vs. Ganzon, 108 Phil. 6).

But even if it has already lost jurisdiction over the appeal by reason of the remand of the record to the lower court, it, nevertheless, has the inherent right to recall the remittitur or the remand of the record to the lower court if it had rendered a decision or issued a resolution which was induced by fraud practised upon it. Such a right is not affected by the statutory provision that after the record has been remanded, the appellate court has no further jurisdiction over the appeal (5 Am Jur. 2nd 433 citingLovett vs. State, 29 Fla. 384, 11 So. 176; 84 ALR 595; State vs. Ramirez, 34 Idaho 623, 203 Pac. 279).

In the instant case, no fraud is involved; what obtain is simple negligence on the part of petitioner's counsel, which is neither excusable nor unavoidable. Petitioner thus failed to demonstrate sufficient cause to warrant a favorable action on its plea.

As held in Chavez, et al. vs. Ganzon, et al., 29 and reiterated in Negros Stevedoring Co., Inc. vs. Court of Appeals, 30We said:

Granting that the power or discretion to reinstate an appeal that had been dismissed is included in or implied from the power or discretion to dismiss an appeal, still such power or discretion must be exercised upon a showing of good and sufficient cause, in like manner as the power or discretion vested in the appellate court to allow extensions of time for the filing of briefs. There must be such a showing which would call for, prompt and justify its exercise (sic). Otherwise, it cannot and must not be upheld.

To justify its failure to file the Appellant's Brief, petitioner relies mainly on the death of Atty. Crispin Baizas and the supposed confusion it brought to the firm of BAIZAS, ALBERTO & ASSOCIATES. It says: 31

Petitioner, thru its president Bernardo R. Sebastian, engaged the services of Atty. Crispin D. Baizas to handle its defense in Civil Case No. 757-R; however, it appears that Atty. Baizas entered petitioner's case as a case to be handled by his law firm operating under the name and style "Crispin D. Baizas & Associates." Hence, the Answer to the complaint, Answer to Cross-Claim, and Answer to Fourth-party Complaint filed for petitioner in said case, evince that the law firm "Crispin D. Baizas & Associates" represents petitioner in the action.

After rendition of the assailed Decision of the trial court, petitioner's counsel appears to have changed its firm name to "Baizas, Alberto & Associates." The appeal was thus pursued for petitioner by the law firm "Baizas, Alberto & Associates."

On January 16, 1974, Atty. Crispin D. Baizas died as a result of a brief heart attack. In consequence (sic) of his death, the law firm "Baizas, Alberto & Associates" was in a terribly confused state of affairs. In effect, said law firm was dissolved. Atty. Ruby Alberto formed her own law office and other associates left the dissolved law firms (sic) joining other offices or putting up their own. Atty. Jose Baizas, son of deceased Crispin D. Baizas, took over the management of why may have been left of his father's office, it appearing that some, if not many, cases of the defunct office were taken over by the associates who left the firm upon its dissolution.

But, none of the former partners and associates/assistants of the dissolved law firm filed the required appellant's brief for herein petitioner in its appealed case before the respondent Court of Appeals. No notice was served upon petitioner by any of the surviving associates of the defunct law firm that its appellant's brief was due for filing or that the law office had been dissolved and that the law office had been dissolved and that none of the lawyers herein formerly connected desired to handle the appealed case of petitioner. . . .

The circumstances that the law firm "Baizas, Alberto & Associates" was dissolved and that none of the associates took over petitioner's case, and no notice of such state of affairs was given to petitioner who could have engaged the services of another lawyer to prosecute its appeal before respondent Court, constitutes (sic) an UNAVOIDABLE CASUALTY that entitles petitioner to the relief prayed for. On the other hand, the non-dissolution of said law firm "Baizas, Alberto & Associates" will not defeat petitioner's claim for relief since, in such event, the said firm had ABANDONED petitioner's cause, which act constitutes fraud and/or reckless inattention the result of which is deprivation of petitioner's day in court. In the abovementioned Yuseco case, this Honorable Court had emphatically and forcefully declared that it will always be disposed to grant relief to parties aggrieved by perfidy, fraud, reckless inattention and downright incompetence of lawyers, which has the consequence of depriving their day (sic) in court.

We find no merit in petitioner's contentions. Petitioner's counsel was the law firm of BAIZAS, ALBERTO & ASSOCIATES and not merely Atty. Crispin Baizas. Hence, the death of the latter did not extinguish the lawyer-client relationship between said firm and petitioner.

In Gutierrez & Sons, Inc. vs. Court of Appeals, 32 the appeal filed by the law firm of BAIZAS, ALBERTO & ASSOCIATES on behalf of respondent therein was dismissed for failure to comply with the requisites enumerated in the Rules of Court; the excuse presented by said counsel was also the death of Atty. Crispin Baizas. This Court held therein that:

The death of Attorney Baizas was not a valid excuse on the part of his associates for not attending to Alvendia's appeal, supposing arguendo that his office was solely entrusted with the task of representing Alvendia in the Court of Appeals. Attorney Espiritu (not Attorney Baizas) was the one actually collaborating with Viola in handling Alvendia's case. He did not file a formal appearance in the Court of Appeals.

Undoubtedly, there was inexcusable negligence on the part of petitioner's counsel in failing to file the Appellant's Brief. As revealed by the records, petitioner's counsel, the BAIZAS ALBERTO & ASSOCIATES law firm, received the notice to file Brief on 19 February 1974. It failed to do so within the 45 days granted to it. Said law firm also received a copy of the respondent Court's Resolution of 9 July 1974 requiring it to show cause why the appeal should not be dismissed for failure to file the Brief within the reglementary period. Petitioner chose not to comply with it, thus compelling the respondent Court to issue on 9 September 1974 a Resolution dismissing the appeal, a copy of which the former also received. Then, on 28 September 1974, the BAIZAS LAW OFFICE moved for reconsideration of the said Resolution which respondent Court denied in its Resolution of 9 October 1974. Nothing more was heard from petitioner until after a year when, on 6 November 1975, it filed the instant petition in reaction to the issuance of a writ of execution by the trial court following receipt of the records for the respondent Court.

The "confusion" in the office of the law firm following the death of Atty. Crispin Baizas is not a valid justification for its failure to file the Brief. With Baizas' death, the responsibility of Atty. Alberto and his Associates to the petitioner as counsel remained until withdrawal by the former of their appearance in the manner provided by the Rules of Court. This is so because it was the law firm which handled the case for petitioner before both the trial and appellate courts. That

Atty. Espiritu, an associate who was designated to handle the case, later left the office after the death of Atty. Baizas is of no moment since others in the firm could have replaced him.. Upon receipt of the notice to file Brief, the law firm should have re-assigned the case to another associate or, it could have withdrawn as counsel in the manner provided by the Rules of Court so that the petitioner could contract the services of a new lawyer.

In the Negros Stevedoring case, supra., this Court held:

The negligence committed in the case at bar cannot be considered excusable, nor (sic) is it unavoidable. Time and again the Court has admonished law firms to adopt a system of distributing pleadings and notices, whereby lawyers working therein receive promptly notices and pleadings intended for them, so that they will always be informed of the status of their cases. Their Court has also often repeated that the negligence of clerks which adversely affect the cases handled by lawyers, is binding upon the latter.

Compounding such negligence is the failure of the BAIZAS LAW OFFICE, which filed on 28 September 1974 the motion for reconsider the Resolution of 9 September 1974, to take any further appropriate action after the respondent Court denied said motion on 9 October 1974. The appearance of said counsel is presumed to be duly authorized by petitioner. The latter has neither assailed nor questioned such appearance.

The rule is settled that negligence of counsel binds the client. 33

Moreover, petitioner itself was guilty of negligence when it failed to make inquiries from counsel regarding its case. As pointed out by respondents, the president of petitioner corporation claims to be the intimate friend of Atty. Crispin Baizas; hence, the death of the latter must have been known to the former. 34 This fact should have made petitioner more vigilant with respect to the case at bar. Petitioner failed to act with prudence and diligence, thus, its plea that they were not accorded the right to procedural due process cannot elicit either approval or sympathy. 35

Based on the foregoing, it is clear that there was failure to show a good and sufficient cause which would justify the reinstatement of petitioner's appeal. Respondent Court of Appeals did not them commit any grave abuse of discretion when it denied petitioner's motion to reinstate its appeal.

WHEREFORE, the Petition is hereby DISMISSED and the temporary restraining order issued in this case is lifted.

Costs against petitioner.

IT SO ORDERED.

Gutierrez, Jr., Feliciano, Bidin and Romero, JJ., concur.

23. legarda vs ca 195 scra 418

[G.R. No. 94457. October 16, 1997]

VICTORIA LEGARDA, petitioner, vs. THE HONORABLE COURT OF APPEALS, NEW CATHAY HOUSE, INC., THE HONORABLE REGIONAL TRIAL COURT OF QUEZON CITY, BRANCH 94, respondents.

R E S O L U T I O N

ROMERO, J.:

For our resolution is the motion for reconsideration of the March 18, 1991, decision of the Courts's First Division, filed by private respondents New Cathay House, Inc. (Cathay). A brief narration of facts is in order.

The parties hereto entered into a lease agreement over a certain Quezon City property owned by petitioner Victoria Legarda. For some reason or another, she refused to sign the contract although respondent lessee, Cathay, made a deposit and a down payment of rentals, prompting the latter to file before the Regional Trial Court of Quezon City, Branch 94 a complaint[1] against the former for specific performance with preliminary injunction and damages. The court a quo issued the injunction. In the meantime, Legarda’s counsel, noted lawyer Dean Antonio Coronel, requested a 10-day extension of time to file an answer which the court granted. Atty. Coronel, however, failed to file an answer within the extended period. His client was eventually declared in default, Cathay was allowed to present evidence ex-parte, and on March 25, 1985, a judgment by default was reached by the trial court ordering Legarda to execute the lease contract in favor of, and to pay damages to, Cathay.

On April 9, 1985, a copy of said decision was served on Atty. Coronel but he took no action until the judgment became final and executory. A month later, the trial court issued a writ of execution and a public auction was held where Cathay’s manager, Roberto V. Cabrera, Jr., as highest bidder, was awarded the property for P376,500.00 in satisfaction of the judgment debt. Consequently, a Certificate of Sale was issued by the sheriff on June 27, 1985. Upon failure of Legarda to redeem her property within the one-year redemption period, a Final Deed of Sale was issued by the sheriff on July 8, 1986, which was registered by Cabrera with the Register of Deeds three days later. Hence, Legarda’s Transfer Certificate of Title (TCT) No. 270814 was cancelled with the issuance of TCT No. 350892 in the name of Cabrera.

Despite the lapse of over a year since the judgment by default became final and executory, Atty. Coronel made no move on behalf of his client. He did not even inform her of all these developments. When Legarda did learn of the adverse decision, “she nevertheless did not lose faith in her counsel”[2] and prevailed upon him to seek appropriate relief. Thus, on October 23, 1986, he filed a petition for annulment of judgment with prayer for the issuance of a writ of preliminary mandatory injunction before the Court of Appeals.[3]

On November 29, 1989, the appellate court rendered a decision affirming the March 25, 1985, decision of the trial court, dismissing the petition for annulment of judgment, and holding Legarda bound by the negligence of her counsel. It considered her allegation of fraud by Cathay to be “improbable,” and added that there was “pure and simple negligence” on the part of petitioner’s counsel who failed to file an answer and, later, a petition for relief from judgment by default. Upon notice of the Court of Appeals decision, Atty. Coronel again neglected to protect his client’s interest by failing to file a motion for reconsideration or to appeal therefrom until said decision became final on December 21, 1989.

Sometime in March 1990, Legarda learned of the adverse decision of the Court of Appeals dated November 29, 1989, not from Atty. Coronel but from his secretary. She then hired a new counsel for the purpose of elevating her case to this Court. The new lawyer filed a petition for certiorari praying for the annulment of the decision of the trial and appellate courts and of the sheriff’s sale, alleging, among other things, that Legarda lost in the courts below because her previous lawyer was grossly negligent and inefficient, whose omissions cannot possibly bind her because this amounted to a violation of her right to due process of law. She, therefore, asked Cathay (not Cabrera) to reconvey the subject property to her.

On March 18, 1991, a decision[4] was rendered in this case by Mr. Justice Gancayco, ruling, inter alia, as follows: (a) granting the petition; (b) nullifying the trial court’s decision dated March 25, 1985, the Court of Appeals decision dated November 29, 1989, the Sheriff’s Certificate of Sale dated June 27, 1985, of the property in question, and the subsequent final deed of sale covering the same property; and (c) ordering Cathay to reconvey said property to Legarda, and the Register of Deeds to cancel the registration of said property in the name of Cathay (not Cabrera) and to issue a new one in Legarda’s name.

The Court then declared that Atty. Coronel committed, not just ordinary or simple negligence, but reckless, inexcusable and gross negligence, which deprived his client of her property without due process of law. His acts, or the lack of it, should not be allowed to bind Legarda who has been “consigned to penury” because “her lawyer appeared to have abandoned her case not once but repeatedly.” Thus, the Court ruled against tolerating “such unjust enrichment” of Cathay at Legarda’s expense, and noted that counsel’s “lack of devotion to duty is so gross and palpable that this Court must come to the aid of his distraught client.”

Aggrieved by this development, Cathay filed the instant motion for reconsideration, alleging, inter alia, that reconveyance is not possible because the subject property had already been sold by its owner, Cabrera, even prior to the promulgation of said decision.

By virtue of the Gancayco decision, Cathay was duty bound to return the subject property to Legarda. The impossibility of this directive is immediately apparent, for two reasons: First, Cathay neither possessed nor owned the property so it is in no position to reconvey the same; second, even if it did, ownership over the property had already been validly transferred to innocent third parties at the time of promulgation of said judgment.

There is no question that the highest bidder at the public auction was Cathay’s manager. It has not been shown nor even alleged, however, that Roberto Cabrera had all the time been acting for or in behalf of Cathay. For all intents and purposes, Cabrera was simply a vendee whose payment effectively extinguished Legarda’s liability to Cathay as the judgment creditor. No proof was ever presented which would reveal that the sale occurred only on paper, with Cabrera acting as a mere conduit for Cathay. What is clear from the records is that the auction sale was conducted regularly, that a certificate of sale and, subsequently, a final deed of sale were issued to Cabrera which allowed him to consolidate his ownership over the subject property, register it and obtain a title in his own name, and sell it to Nancy Saw, an innocent purchaser for value, at a premium price. Nothing on record would demonstrate that Cathay was the beneficiary of the sale between Cabrera and Saw. Cabrera himself maintained that he was “acting in his private (as distinct from his corporate) capacity”[5] when he participated in the bidding.

Since the decision of the Court of Appeals gained finality on December 21, 1989, the subject property has been sold and ownership thereof transferred no less than three times, viz.: (a) from Cabrera to Nancy Saw on March 21, 1990, four months after the decision of the Court of Appeals became final and executory and one year before the promulgation of the March 18,

1991, decision under reconsideration; (b) from Nancy Saw to Lily Tanlo Sy Chua on August 7, 1990, more than one year before the Court issued a temporary restraining order in connection with this case; and (c) from the spouses Victor and Lily Sy Chua to Janet Chong Luminlun on April 3, 1992. With these transfers, Cabrera’s TCT No. 350892 gave way to Saw’s TCT No. 31672, then to Chua’s TCT No. 31673, and finally to Luminlun’s TCT No. 99143, all issued by the Register of Deeds of Quezon City on April 3, 1990, August 8, 1990, and November 24, 1993, respectively.

We do not have to belabor the fact that all the successors-in-interest of Cabrera to the subject lot were transferees for value and in good faith, having relied as they did on the clean titles of their predecessors. The successive owners were each armed with their own indefeasible titles which automatically brought them under the aegis of the Torrens System. As the Court declared in Sandoval v. Court of Appeals, [6] “(i)t is settled doctrine that one who deals with property registered under the Torrens system need not go beyond the same, but only has to rely on the title. He is charged with notice only of such burdens and claims as are annotated on the title.”[7] In the case at bar, it is not disputed that no notice of lis pendens was ever annotated on any of the titles of the subsequent owners. And even if there were such a notice, it would not have created a lien over the property because the main office of a lien is to warn prospective buyers that the property they intend to purchase is the subject of a pending litigation. Therefore, since the property is already in the hands of Luminlun, an innocent purchaser for value, it can no longer be returned to its original owner by Cabrera, much less by Cathay itself.

Another point to consider, though not raised as an issue in this case, is the fact that Cabrera was impleaded as a party-respondent only on August 12, 1991, after the promulgation of the Gancayco decision.[8] The dispositive portion itself ordered Cathay, instead of Cabrera to reconvey the property to Legarda. Cabrera was never a party to this case, either as plaintiff-appellee below or as respondent in the present action. Neither did he ever act as Cathay’s representative. As we held in the recent case of National Power Corporation v. NLRC, et al.,[9] “(j)urisdiction over a party is acquired by his voluntary appearance or submission to the court or by the coercive process issued by the court to him, generally by service of summons.” [10] In other words, until Cabrera was impleaded as party respondent and ordered to file a comment in the August 12, 1991, resolution, the Court never obtained jurisdiction over him, and to command his principal to reconvey a piece of property which used to be HIS would not only be inappropriate but would also constitute a real deprivation of one’s property without due process of law.

Assuming arguendo that reconveyance is possible, that Cathay and Cabrera are one and the same and that Cabrera’s payment redounded to the benefit of his principal, reconveyance, under the facts and evidence obtaining in this case, would still not address the issues raised herein

The application of the sale price to Legarda’s judgment debt constituted a payment which extinguished her liability to Cathay as the party in whose favor the obligation to pay damages was established.[11] It was a payment in the sense that Cathay had to resort to a court-supervised auction sale in order to execute the judgment.[12] With the fulfillment of the judgment debtor’s obligation, nothing else was required to be done.

Under the Gancayco ruling, the order of reconveyance was premised on the alleged gross negligence of Legarda’s counsel which should not be allowed to bind her as she was deprived of her property “without due process of law.”

It is, however, basic that as long as a party was given the opportunity to defend her interests in due course, she cannot be said to have been denied due process of law, for this opportunity to be heard is the very essence of due process. The chronology of events shows that the case took its regular course in the trial and appellate courts but Legarda’s counsel failed to act as any ordinary counsel should have acted, his negligence every step of the way amounting to “abandonment,” in the words of the Gancayco decision. Yet, it cannot be denied that the proceedings which led to the filing of this case were not attended by any irregularity. The judgment by default was valid, so was the ensuing sale at public auction. If Cabrera was adjudged highest bidder in said auction sale, it was not through any machination on his part. All of his actuations that led to the final registration of the title in his name were aboveboard, untainted by any irregularity.

The fact that Cabrera is an officer of Cathay does not make him a purchaser in bad faith. His act in representing the company was never questioned nor disputed by Legarda. And while it is true that he won in the bidding, it is likewise true that said bidding was conducted by the book. There is no call to be alarmed that an official of the company emerges as the winning bidder since in some cases, the judgment creditor himself personally participates in the bidding.

There is no gainsaying that Legarda is the judgment debtor here. Her property was sold at public auction to satisfy the judgment debt. She cannot claim that she was illegally deprived of her property because such deprivation was done in accordance with the rules on execution of judgments. Whether the money used to pay for said property came from the judgment creditor or its representative is not relevant. What is important is that it was purchased for value. Cabrera parted with real money at the auction. In his “Sheriff’s Certificate of Sale” dated June 27, 1985,[13]Deputy Sheriff Angelito R. Mendoza certified, inter alia, that the “highest bidder paid to the Deputy Sheriff the said amount of P376,500.00, the sale price of the levied property.” If this does not constitute payment, what then is it? Had there been no real purchase and payment below, the subject property would never have been awarded to Cabrera and registered in his name, and the judgment debt would never have been satisfied. Thus, to require either Cathay or Cabrera to reconvey the property would be an unlawful intrusion into the lawful exercise of his proprietary rights over the land in question, an act which would constitute an actual denial of property without due process of law.

It may be true that the subject lot could have fetched a higher price during the public auction, as Legarda claims, but the fail to betray any hint of a bid higher than Cabrera’s which was bypassed in his favor. Certainly, he could not help it if his bid of only P376,500.00 was the highest. Moreover, in spite of this allegedly low selling price, Legarda still failed to redeem her property within the one-year redemption period. She could not feign ignorance of said sale on account of her counsel’s failure to so inform her, because such auction sales comply with requirements of notice and publication under the Rules of Court. In the absence of any clear and convincing proof that such requirements were not followed, the presumption of regularity stands. Legarda also claims that she was in the United States during the redemption period, but she admits that she left the Philippines only on July 13, 1985, or sixteen days after the auction sale of June 27, 1985. Finally, she admits that her mother Ligaya represented her during her absence.[14] In short, she was not totally in the dark as to the fate of her property and she could have exercised her right of redemption if she chose to, but she did not.

Neither Cathay nor Cabrera should be made to suffer for the gross negligence of Legarda’s counsel. If she may be said to be “innocent” because she was ignorant of the acts of negligence of her counsel, with more reason are respondents truly “innocent.” As between two parties who may lose due to the negligence or incompetence of the counsel of one, the party who was responsible for making it happen should suffer the consequences. This reflects the

basic common law maxim, so succinctly stated by Justice J.B.L. Reyes, that “. . . (B)etween two innocent parties, the one who made it possible for the wrong to be done should be the one to bear the resulting loss.”[15] In this case, it was not respondents, Legarda, who misjudged and hired the services of the lawyer who practically abandoned her case and who continued to retain him even after his proven apathy and negligence.

The Gancayco decision makes much of the fact that Legarda is now “consigned to penury” and, therefore, this Court “must come to the aid of the distraught client.” It must be remembered that this Court renders decisions, not on the basis of emotions but on its sound judgment, applying the relevant, appropriate law. Much as it may pity Legarda, or any losing litigant for that matter, it cannot play the role of a “knight in shining armor” coming to the aid of someone, who through her weakness, ignorance or misjudgment may have been bested in a legal joust which complied with all the rules of legal proceedings.

In Vales v. Villa,[16] this Court warned against the danger of jumping to the aid of a litigant who commits serious error of judgment resulting in his own loss:

“x x x Courts operate not because one person has been defeated or overcome by another, but because he has been defeated or overcome illegally. Men may do foolish things, make ridiculous contracts, use miserable judgment, and lose money by them - indeed, all they have in the world; but not for that alone can the law intervene and restore. There must be, in addition, a violation of law, the commission of what the law knows as an actionable wrong, before the courts are authorized to lay hold of the situation and remedy it."

Respondents should not be penalized for Legarda’s mistake. If the subject property was at all sold, it was only after the decisions of the trial and appellate courts had gained finality. These twin judgments, which were nullified by the Gancayco decision, should be respected and allowed to stand by this Court for having become final and executory.

“A judgment may be broadly defined as the decision or sentence of the law given by a court or other tribunal as the result of proceedings instituted therein.”[17] It is “a judicial act which settles the issues, fixes the rights and liabilities of the parties, and determines the proceeding, and it is regarded as the sentence of the law pronounced by the court on the action or question before it.”[18]

In the case at bar, the trial court’s judgment was based on Cathay’s evidence after Legarda was declared in default. Damages were duly awarded to Cathay, not whimsically, but upon proof of its entitlement thereto. The issue of whether the plaintiff (Cathay) deserved to recover damages because of the defendant’s (Legarda’s) refusal to honor their lease agreement was resolved. Consequently, the right of Cathay to be vindicated for such breach and the liability incurred by Legarda in the process were determined.

This judgment became final when she failed to avail of remedies available to her, such as filing a motion for reconsideration or appealing the case. At the time, the issues raised in the complaint had already been determined and disposed of by the trial court. [19] This is the stage of finality which judgments must at one point or another reach. In our jurisdiction, a judgment becomes ipso facto final when no appeal is perfected or the reglementary period to appeal therefrom expires. “The necessity of giving finality to judgments that are not void is self-evident. The interests of society impose it. The opposite view might make litigations more unendurable than the wrongs (they are) intended to redress. It would create doubt, real or imaginary, and controversy would constantly arise as to what the judgment or order was. Public policy and sound practice demand that, at the risk of occasional errors, judgments of courts should become final at some definite date fixed by law. The very object for which courts were

instituted was to put an end to controversies.”[20] When judgments of lower courts gain finality, “they, too, become inviolable, impervious to modification. They may, then, no longer be reviewed, or in any way modified directly or indirectly, by a higher court, not even by the Supreme Court.”[21] In other words, once a judgment becomes final, the only errors that may be corrected are those which are clerical.[22]

From the foregoing precedents, it is readily apparent that the real issue that must be resolved in this motion for reconsideration is the alleged illegality of the final judgments of the trial and appellate courts.

Void judgments may be classified into two groups: those rendered by a court without jurisdiction to do so and those obtained by fraud or collusion.[23] This case must be tested in light of the guidelines governing the latter class of judgments. “In this regard, an action to annul a judgment on the ground of fraud will not lie unless the fraud is extrinsic or collateral and facts upon which it is based (have) not been controverted or resolved in the case where (the) judgment was rendered.”[24] Where is the fraud in the case at bar? Was Legarda unlawfully barred from the proceedings below? Did her counsel sell her out to the opponent?

It must be noted that, aside from the fact that no extrinsic fraud attended the trial and resolution of this case, the jurisdiction of the court a quo over the parties and the subject matter was never raised as an issue by Legarda. Such being the case, the decision of the trial court cannot be nullified. Errors of judgment, if any, can only be reviewed on appeal, failing which the decision becomes final and executory, “valid and binding upon the parties in the case and their successors in interest.”[25]

At this juncture, it must be pointed out that while Legarda went to the Court of Appeals claiming precisely that the trial court’s decision was fraudulently obtained, she grounded her petition before the Supreme Court upon her estranged counsel’s negligence. This could only imply that at the time she filed her petition for annulment of judgment, she entertained no notion that Atty. Coronel was being remiss in his duties. It was only after the appellate court’s decision had become final and executory, a writ of execution issued, the property auctioned off then sold to an innocent purchasers for value, that she began to protest the alleged negligence of her attorney. In most cases, this would have been dismissed outright for being dilatory and appearing as an act of desperation on the part of a vanquished litigant. The Gancayco ruling, unfortunately, ruled otherwise.

Fortunately, we now have an opportunity to rectify a grave error of the past.

WHEREFORE, the Motion for Reconsideration of respondent New Cathay House, Inc. is hereby GRANTED. Consequently, the decision dated March 18, 1991, of the Court’s First Division is VACATED and SET ASIDE. A new judgment is hereby entered DISMISSING the instant petition for review and AFFIRMING the November 29, 1989, decision of the Court of Appeals in CA-G.R. No. SP-10487. Costs against petitioner Victoria Legarda.

SO ORDERED.

24. demaguiba vs montalvo jr. 202 scra 641

Adm. Case No. 1424 October 15, 1991

ISMAELA DIMAGIBA, complainant, -versus-ATTY. JOSE MONTALVO, JR., respondent.

PER CURIAM:

This is a complaint filed by Ismaela Dimagiba against Atty. Jose Montalvo for Malpractice, for stretching to almost a half a century a litigation arising from the probate of a will of the late Benedicta de Los Reyes which instituted Ismaela Dimagiba as the sole heir of all the properties.

The letter of the private complainant, Ismaela Dimagiba, received on January 15,1975 by the Supreme Court, states:

xxx xxx xxx

The clients of Atty. Montalvo, namely: Dionisio Fernandez, Eusebio Reyes, Luisa Reyes, Mariano Reyes, Cesar Reyes, Leonor Reyes, filed a case against me with the Court of First Instance of Bulacan in 1946 for annulment of sale and was docketed as Civil Case No. 108 of said Court. This case was terminated annulling the sale, as per decision in 1954 in G.R. No. L-5618 and L-5620.

On January 19, 1955, 1 filed a case for Probate of Will with the Court of First Instance of Bulacan, regarding the same property subject of the annulment of sale and was docketed with the Court of First Instance of Bulacan as Sp. Proc. No. 831-M. Luckily, the said case was terminated on June 20, 1958, probating the said will. The oppositors in this case who are the same persons mentioned above appealed this case to the Higher Court of the Philippines and was decided by the Hon. Supreme Court of the Philippines on October 12, 1967 in G.R. No. L-23638 and L-23662, affirming the decision of the Lower Court;

That after the decision of the above-mentioned case was promulgated, the same parties filed on June 5, 1968 Civil Case No. 3677-M with the CFI of Bulacan for annulment of will; this case was filed through their counsel, Atty. Gregorio Centeno.

Said case was dismissed by the Court on February 11, 1970 without pronouncement of costs;

That on August 13,1971, again, the clients of Atty. Montalvo filed Civil Case No. 4078 with the Court of First Instance of Bulacan for annulment of the said will; this case was again dismissed by the Court on December 21, 1971;

That on April 22, 1972, again the same parties, through their counsel Atty. Montalvo, filed another case with the Court of First Instance of Bulacan, allegedly for Partition of the same property mentioned in the probate of will which was docketed as Civil Case No. 4151. This case was again dismissed by the Court in its Order dated October 11, 1972;

That on May 25, 1972, still another case was filed by the same parties, through Atty. Montalvo, for specific performance, with the CFI of Bulacan and was docketed as Civil Case No. 4188-M. This case was again dismissed by the Court in its Order dated October 24,1973. On August 12, 1974, the said case was remanded to the Court of Appeals, Manila, by the Court of First Instance of Bulacan;

Still on April 5, 1974, I was again surprised to know that there was another case filed by the same persons mentioned above through Atty. Montalvo with the Court of First Instance of Bulacan and was docketed as Civil Case No. 4458. This case is still pending before said court.

In view of the numerous cases filed against me by the same parties, through their counsel, Atty. Montalvo, I am constrained to report to that [sic] Honorable Court of the actuation of said lawyer who is a member of the Philippine Bar attending to cases of non suit, which cause harassment on may part.

The parties in this case are the ones in possession of the property Subject of Sp. Proc. No. 831 of the CFI, Bulacan. They can not be ejected from the land holdings because they claim that the case filed by Atty. Montalvo is still pending in Court.

In all the foregoing [sic] I respectfully submit to this Honorable Court for appropriate action.

xxx xxx xxx 1

In the Resolution of the Second Division of the Supreme Court dated January 27, 1975, the respondent Montalvo was required to file an Answer within ten days from notice.2

In his Answer dated March 3, 1975, Montalvo, claims that the case filed against the complainant were done.

xxx xxx xxx

at the instance of different parties; or by reason of different causes of action and all the pleadings filed by the undersigned were and/or the result of a very painstaking, diligent, and careful study and evaluation of the facts and law involved therein such that even before signing the same, the undersigned has always been of the honest and sincere belief that its filing is for the interest of justice — certainly never for harassment; (2) that the reason why the parties tenant could not be ejected from their land as stated by complainant in her complaint is because of the passage of Presidential Decree No. 27 which emancipated the farmers from their bondage and declared them as owners of the rice and corn land they tilled upon the passage of the decree coupled with the very acts of the complainant herself; and that (3) the complainant by filing this instant complaint for disbarment wants to cow and intimidate the undersigned in order to withdraw as counsel of his clients because she has been thwarted in her erroneous belief that she owns exclusively all the properties comprising the estate of the late Benedicta de Los Reyes and could not accept and take into account the reality that by virtue of the final decision of the Supreme Court in G.R. No. 5618 and 5620 she is not the sole owner of the present estate of the deceased but only a co-owner with the clients of the undersigned. 3

In addition, Montalvo stated that it was Dimagiba who refused to be bound by the Supreme Court Decision in G.R. Nos. 5618 and 5620. 4

As a Rejoinder to the Respondent's Answer, the complainant Dimagiba stated that in Civil Case No. 3677-M, the plaintiffs are the same parties-oppositors who opposed the petition for probate of the Last Will and Testament of the deceased Benedicta De Los Reyes in Special Proceeding No. 831. The same case was dismissed by the Court of First Instance of Bulacan on the ground that the issue raised had been decided by the Court. 5

Likewise Civil Case No. 4078-M was also dismissed by Branch 2 of the Court of First Instance of Bulacan presided by Judge Ricardo C. Pronove, Jr., in the order of August 24, 1973 on the ground of res judicata.

xxx xxx xxx

But a closer analysis [sic) it is clear that this action is merely a rehash of the other cases previously litigated between the plaintiffs and the defendant and already settled by final judgment. 6

In fact, in that case, Atty. Jose Montalvo, Jr., included himself as one of the defendants.

xxx xxx xxx

Finally, the fact that plaintiffs counsel, Jose Montalvo, Jr., had decided to join cause with the other plaintiffs in this case does no mean that there is no Identity of parties between this case and Civil Case No. 3677-M. Atty. Jose Montalvo, Jr., is not alleged to be are party in interest in this case so that Ills inclusion herein as a p plaintiff can not produce any legal significance. 7

This notwithstanding, Montalvo filed another case against Dimagiba which was docketed as Civil Case No. 4458-M of the CFI Bulacan where the plaintiffs and causes of action were again the same as 3677-M and 4188-M. Again, the CFI Bulacan dismissed the cases.

On April 16, 1975, the Second Division, following the procedure then obtaining for the resolution of disciplinary case against lawyers, referred the case to the Solicitor General for investigation, report, and recommendation. 8

It was only on May 4,1990, or almost fifteen years later, that the entire records of Adm. Case No. 1424 involving Ismaela Dimagiba versus Atty. Jose Montalvo was returned to the Clear of Court of the Supreme Court by the Office of the Solicitor General through Solicitor Aurora P. Cortes.

In summary, the following are the litigations that ensue from the probate of the Will of De Los Reyes as found by the Solicitor General involving the same parties and the same cause of action:

1. Special Proceedings No. 831 instituted on January 1 1955. The Will was admitted to probate but was subsequently appealed.

2. CA-G.R. No. 31221-R. This was an appeal of the decision in Spec. Proc. No. 831. The decision was affirmed.

3. G.R. Nos. L-23638 and L-23662. This decision dated October 12, 1967, in the Supreme Court, upheld the decision CA-G.R. No. 31221-R, in effect, affirming the due execution the Will and the capacity of the Testator as well as the institution of the complainant.

4. Civil Case No. 3677-M. Filed in the Court of First Instance of Bulacan on June 4, 1968, this was a petition for the nullification of the Will. This was dismissed.

5. Civil Case No. 200 which was redocketed as Civil Case No. 4078-M. This complaint dated November 3, 1970 was again dismissed.

6. Civil Case No. 4151-M. This case, filed on February l6, 1972, for the partition of the property left by the deceased Benedicta De los Reyes on the ground of the nullity of the Will, was again dismissed for failure to prosecute.

7. Civil Case No. 4188-M. Filed on May 25,1972, with the Court of First Instance of Bulacan, Branch 2, the respondent Atty. Montalvo, Jr., joined the descendants of the collateral relatives of the deceased De Los Reyes against herein complainant Dimagiba. This case was dismissed.

8. Civil Case No. 4458-M. Civil Case No. 4188-M was appealed. But without waiting for the outcome, Atty. Montalvo, Jr., filed Civil Case No. 4458-M on April 5, 1974 which was a complaint for the cancellation of the transfer certificates of title in the name of Ismaela Dimagiba and the issuance of new certificates of title in the name of the late Benedicta de los Reyes.

Clearly, the respondent Montalvo, Jr. repetitively filed several complaints in various forms involving the same parties and the same subject matter, persistently raising issues long laid to rest by final judgment.

This misbehavior in facie curia consisting of a stubborn refusal to accept this Court's pronouncements is in fact even summarily punishable under Rule 71, Suction 1 of the Rules of Court.9

Any lawyer who assumes the responsibility for a client' cause has the duty to know the entire history of a case, specially if any litigation has commenced. In the case at bar, even Atty. Montalvo does not deny the fact that the probate of the will o the late Benedicta de los Reyes has been an over-extended an contentious litigation between the heirs.

A lawyer should never take advantage of the seemingly end less channels left dangling by our legal system in order wangle the attention of the court. Atty. Montalvo may have thought that lie could get away with his indiscriminate filing o suits that were clearly intended to harass Ismaela Dimagiba When court dockets get clogged and the administration of justice is delayed, our judicial system may not be entirely blame less, yet the greater fault lies in the lawyers who had take their privilege so lightly, and in such mindless fashion.

The Code of Professional Responsibility states that:

Rule 1.01 — A lawyer shall not engage in unlawful, dishonest immoral or deceitful conduct.

Rule 1.03 — A lawyer shall not for any corrupt motive or interest encourage any suit or proceeding or delay any man's cause.

On the basis of the foregoing, we find him guilty of malpractice as charged. He has violated his oath not to delay any ma for money or malice, besmirched the name of an honorable profession, and has proven himself unworthy of the trust repose in him by law as an officer of the Court. We have not countenanced other less significant infractions among the ranks of our lawyers. He deserves the severest punishment of DISBARMENT.

WHEREFORE on the basis of the foregoing, and consisted with the urgent need to maintain the high traditions an standards of the legal profession and to preserve undiminished public faith in attorneys-at-law, the Court Resolved to DISBAR the respondent Atty. Jose Montalvo, Jr. from the practice law. His name is hereby ordered stricken from the Roll of Attorneys.

Copies of this Resolution shall be circulated to all courts of the country and entered in the personal record of respondent Atty. Jose Montalvo, Jr.

SO ORDERED.

25. legarda vs ca 209 scra 72226. roque vs clemencio 212 scra 618

A.M. No. 3187 August 14, 1992

MYRNA D. ROQUE and ROBERTO P. CRUZADO, complainants, -versus-ATTY. FELICIANO B. CLEMENCIO, respondent.

BELLOSILLO, J.:

In a verified complaint filed 17 February 1988 by Myrna D. Roque and Roberto P. Cruzado, Atty. Feliciano B. Clemencio was charged with gross misconduct and oppression. Eventually, the complaint was referred to the Integrated Bar of the Philippines for investigation, report and recommendation.

Briefly, complainants charge that —

1. Respondent, a Legal Officer of the Commission on Audit appointed to investigate the charges filed by complainant Myrna D. Roque against COA official Jovencio Panelo, displayed bias and partiality amounting to abuse of discretion: (a) respondent was seen "drinking and eating and making merry with the lawyer of Panelo at Balay Kaldingan, a restaurant cum beerhouse"; 1 (b) respondent sat on the case filed by complainant against Panelo for almost a year; 2 (c) respondent conspired with Atty. Rogelio Tablang, then Division Chief of the COA Legal Office, to whom the case was assigned after respondent was relieved upon motion of complainant; and, (d) respondent drafted the decision in the case against Panelo even after the former was relieved of his assignment as "investigator" in the case. 3

2. Respondent is guilty of oppression for having summoned complainant Roberto P. Cruzado to the Office of the Chief, Security Affairs Service Unit, COA, and threatened him.

In his answer, respondent denies the allegations of the complainants and avers that the complain was filed "purely out of malice and with an evil design to harass respondent." 4

After hearing, the IBP rendered a decision 5 on 28 November 1991, dismissing the complaint against Atty. Feliciano B. Clemencio for lack of merit, ruling that (a) respondent could not have been guilty of abuse of discretion as he was not vested with such discretion in the first place; 6 (b) intimacy or friendship between

a judge and an attorney of record of one of the parties in a suit is not ground for disqualification, and that in the case at bar respondent was not even a judge clothed with any discretionary power; 7 (c) respondent cannot be validly blamed for the supposed "inaction" as he was already relieved from acting on the Panelo case effective 14 May 1987 and the records show that he was no longer Legal Officer as early as 1 March 1987; 8 (d) there is no proof that respondent conspired with Atty. Rogelio Tablang and in fact, complainants never filed a case against the latter; 9 (e) the draft decision was written by the respondent, as directed by his superiors at the COA Legal Office, who reviewed the same, and a "draft" decision is nothing but a scrap of paper until the same is finalized and signed by the persons vested by law to sign the same; 10 and, (f) respondent could not be guilty of oppression since complainant Cruzado was "invited" by the Chief of the Security Affairs Service Unit himself in the latter's official capacity and was not summoned by the respondent, and although respondent was present and admitted informing complainant Cruzado the expenses the latter may incur in the event a case was filed against him (Cruzado), "a threat to prosecute is not considered an intimidation." 11

We differ from the findings and recommendation of the IBP. Although there may not be sufficient evidence to prove that respondent Atty. Feliciano B. Clemencio acted with abuse of discretion resulting in gross misconduct, We believe nevertheless that he displayed ethical infractions.

Undisputedly, as specified in COA Office Order No. 86-9877, 12 respondent was tasked to conduct the formal investigation in Adm. Case No. 86-884 filed by complainant Roque against Panelo, and thereafter to submit his findings and recommendation. What facts to include or exclude in his report, his findings and how to support them as well as his recommendation — all these necessarily entail the exercise of sound discretion and impartial judgment.

Admittedly, it was respondent himself who drafted the decision in the case, which draft became the basis for the final adjudication adopted by the COA. Indeed, the manner of presenting the facts and the consequent recommendation can influence the reviewing authority. In fact, a perusal of both the draft decision submitted by respondent 13 and the decision finally adopted by the COA 14 would reveal that, except for the difference in the penalties imposed, the final decision had all the earmarks of the preliminary draft. Thus, respondent should have refrained from drinking and dining with Panelo's counsel. It is a rule of general application that an attorney (much more an investigator, as in the case of respondent) should avoid, if not altogether eliminate, even the slightest appearances of impropriety.

Moreover, we find it difficult to believe that the reason why complainant Cruzado was "invited" to report to the Security Affairs Service Unit was precisely to protect his rights, as claimed by respondent. When a lowly employee is summoned to appear before the Chief Security Officer and there questioned by a lawyer who is his superior, and who happens in this case to be respondent himself, and warned of dismissal from employment, a possible litigation and its dire consequences, that employee is, in effect, under threat or intimidation.

The excuse of respondent that a threat to prosecute is no intimidation deserves scant consideration. The instant complaint involves the fitness of a lawyer to continue his membership with the Philippine Bar, where he is expected to promote respect for law and legal processes. For sure, We are not here concerned with intimidation as a requisite to vitiate consent in entering into contracts, as cited by respondent to support his argument. Here, We take into serious account the fact that respondent is a lawyer, a superior who threatened a subordinate complainant with dismissal and a court suit. A man of the law should never use his legal expertise and influence in order to frighten or coerce anyone, specially the ordinary man who looks up to him for justice.

Thus, We remind respondent Atty. Feliciano B. Clemencio of his duties and responsibilities as a lawyer. Rule 1.01, Canon 1 of the Code of Professional Responsibility provides that a lawyer shall not engage in unlawful, immoral or deceitful conduct. A member of the Bar must act with integrity, honesty and professional decorum. He must comport himself in a manner which will secure and preserve the respect and confidence of the public. Both his professional and personal conduct must he kept beyond reproach and above suspicion. He is required not only in fact to be of good moral character, but must also be seen to be leading a life in accordance with the highest moral standards of the community. His deportment should be characterized by candor, competence and fairness. One of his duties is to maintain the high ethical standards of the legal profession. Accordingly, respondent must be censured for his failure to comply with the ethical standards required of members of the Bar as officers of the Court.

WHEREFORE, respondent, ATTY. FELICIANO B. CLEMENCIO, is hereby CENSURED for conduct unbecoming a member of the Bar, and WARNED that a repetition of the same or similar conduct will be dealt with more severely.

Let copies of this Resolution be FURNISHED the Bar Confidant and the Integrated Bar of the Philippines and spread in the personal records of respondent.

SO ORDERED.

Cruz, Griño-Aquino and Medialdea, JJ., concur.