Legal-ethics-assignment-2.docx

EN BANC [B.M. 850. October 2, 2001] MANDATORY CONTINUING LEGAL EDUCATION RESOLUTION ADOPTING THE REVISED RULES ON THE CONTINUING LEGAL EDUCATION FOR MEMBERS OF THE INTEGRATED BAR OF THE PHILIPPINES Considering the Rules on the Mandatory Continuing Legal Education (MCLE) for members of the Integrated Bar of the Philippines (IBP), recommended by the IBP, endorsed by the Philippine Judicial Academy, and reviewed and passed upon by the Supreme Court Committee on Legal Education, the Court hereby resolves to approve, as it hereby approves, the following Revised Rules for proper implementation: Rule 1. PURPOSE SECTION 1. Purpose of the MCLE. Continuing legal education is required of members of the Integrated Bar of the Philippines (IBP) to ensure that throughout their career, they keep abreast with law and jurisprudence, maintain the ethics of the profession and enhance the standards of the practice of law. Rule 2. MANDATORY CONTINUING LEGAL EDUCATION SECTION 1. Commencement of the MCLE. Within two (2) months from the approval of these Rules by the Supreme Court En Banc, the MCLE Committee shall be constituted and shall commence the implementation of the Mandatory Continuing Legal Education (MCLE) program in accordance with these Rules. SEC. 2. Requirements of completion of MCLE. Members of the IBP not exempt under Rule 7 shall complete every three (3) years at least thirty-six (36) hours of continuing legal education activities approved by the MCLE Committee. Of the 36 hours: (a) At least six (6) hours shall be devoted to legal ethics equivalent to six (6) credit units. (b) At least four (4) hours shall be devoted to trial and pretrial skills equivalent to four (4) credit units. (c) At least five (5) hours shall be devoted to alternative dispute resolution equivalent to five (5) credit units.

(d) At least nine (9) hours shall be devoted to updates on substantive and procedural laws, and jurisprudence equivalent to nine (9) credit units. (e) At least four (4) hours shall be devoted to legal writing and oral advocacy equivalent to four (4) credit units. (f) At least two (2) hours shall be devoted to international law and international conventions equivalent to two (2) credit units. (g) The remaining six (6) hours shall be devoted to such subjects as may be prescribed by the MCLE Committee equivalent to six (6) credit units. Rule 3. COMPLIANCE PERIOD SECTION 1. Initial compliance period. -- The initial compliance period shall begin not later than three (3) months from the adoption of these Rules. Except for the initial compliance period for members admitted or readmitted after the establishment of the program, all compliance periods shall be for thirty-six (36) months and shall begin the day after the end of the previous compliance period. SEC. 2. Compliance Groups. -- Members of the IBP not exempt from the MCLE requirement shall be divided into three (3) compliance groups, namely: (a) Compliance group 1. -- Members in the National Capital Region (NCR) or Metro Manila are assigned to Compliance Group 1. (b) Compliance group 2. -- Members in Luzon outside NCR are assigned to Compliance Group 2. (c) Compliance group 3. -- Members in Visayas and Mindanao are assigned to Compliance Group 3. Nevertheless, members may participate in any legal education activity wherever it may be available to earn credit unit toward compliance with the MCLE requirement. SEC. 3. Compliance period of members admitted or readmitted after establishment of the program. Members admitted or readmitted to the Bar after the establishment of the program shall be assigned to the appropriate Compliance Group based on their Chapter membership on the date of admission or readmission. The initial compliance period after admission or readmission shall begin on the first day of the month of admission or readmission and shall end on the same day as that of all other members in the same Compliance Group.

(a) Where four (4) months or less remain of the initial compliance period after admission or readmission, the member is not required to comply with the program requirement for the initial compliance.

FACILITATOR

(b) Where more than four (4) months remain of the initial compliance period after admission or readmission, the member shall be required to complete a number of hours of approved continuing legal education activities equal to the number of months remaining in the compliance period in which the member is admitted or readmitted. Such member shall be required to complete a number of hours of education in legal ethics in proportion to the number of months remaining in the compliance period. Fractions of hours shall be rounded up to the next whole number.

2.1 LAW BOOK OF NOT FULL CU FOR THE PUBLISHED BOOK

Rule 4. COMPUTATION OF CREDIT UNITS(CU) SECTION 1. Guidelines. - CREDIT UNITS ARE EQUIVALENT TO CREDIT HOURS. CREDIT UNITS measure compliance with the MCLE requirement under the Rules, based on the category of the lawyers participation in the MCLE activity. The following are the guidelines for computing credit units and the supporting documents required therefor: PROGRAMS/ACTIVITY CREDIT UNITS SUPPORTING DOCUMENTS 1. SEMINARS, CONVENTIONS, CONFERENCES, SYMPOSIA, IN-HOUSE EDUCATION PROGRAMS, WORKSHOPS, DIALOGUES, ROUND TABLE DISCUSSIONS BY APPROVED PROVIDERS UNDER RULE 7 AND OTHER RELATED RULES 1.1 PARTICIPANT/ 1 CU PER HOUR OF CERTIFICATE OF

2. AUTHORSHIP, EDITING AND REVIEW

LESS THAN 100 PAGES SUBJECT PER COMPLIANCE PERIOD 2.2 BOOK EDITOR 1/2 OF THE CU OF PUBLISHED BOOK AUTHORSHIP CATEGORY WITH PROOF AS EDITOR 2.3 RESEARCH PAPER 1/2 OF CU FOR THE DULY INNOVATIVE PROGRAM/ SUBJECT PER CERTIFIED/ CREATIVE PROJECT COMPLIANCE PERIOD PUBLISHED TECHNICAL REPORT/PAPER 2.4 LEGAL ARTICLE OF AT 1/2 OF CU FOR THE PUBLISHED ARTICLE LEAST TEN (10) PAGES SUBJECT PER

ATTENDEE ATTENDANCE ATTENDANCE WITH

COMPLIANCE PERIOD

NUMBER OF HOURS

2.5 LEGAL NEWSLETTER/ 1 CU PER ISSUE PUBLISHED

1.2 LECTURER FULL CU FOR THE PHOTOCOPY OF RESOURCE SUBJECT PER PLAQUE OR SPEAKER COMPLIANCE PERIOD SPONSORS CERTIFICATION 1.3 PANELIST/REACTOR 1/2 OF CU FOR THE CERTIFICATION COMMENTATOR/ SUBJECT PER FROM MODERATOR/ COMPLIANCE PERIOD SPONSORING COORDINATOR/ ORGANIZATION

LAW JOURNAL EDITOR NEWSLETTER/JOURNAL 2.6 PROFESSORIAL CHAIR/ FULL CU FOR THE CERTIFICATION OF BAR REVIEW LECTURE SUBJECT PER LAW DEAN OR LAW TEACHING/ COMPLIANCE PERIOD BAR REVIEW DIRECTOR Rule 5. CATEGORIES OF CREDIT UNITS

SECTION 1. Classes of Credit units. -- Credit units are either participatory or nonparticipatory.

(d) The Chief State Counsel, Chief State Prosecutor and Assistant Secretaries of the Department of Justice;

SEC. 2. Claim for participatory credit units. -- Participatory credit units may be claimed for:

(e) The Solicitor General and the Assistant Solicitors General;

(a) Attending approved education activities like seminars, conferences, conventions, symposia, in-house education programs, workshops, dialogues or round table discussion. (b) Speaking or lecturing, or acting as assigned panelist, reactor, commentator, resource speaker, moderator, coordinator or facilitator in approved education activities. (c) Teaching in a law school or lecturing in a bar review class. SEC. 3. Claim for non-participatory credit units. Non-participatory credit units may be claimed per compliance period for: (a) Preparing, as an author or co-author, written materials published or accepted for publication, e.g., in the form of an article, chapter, book, or book review which contribute to the legal education of the author member, which were not prepared in the ordinary course of the members practice or employment. (b) Editing a law book, law journal or legal newsletter. Rule 6. COMPUTATION OF CREDIT HOURS (CH)

SECTION 1. Computation of credit hours. -- Credit hours are computed based on actual time spent in an education activity in hours to the nearest one-quarter hour reported in decimals.

(f) The Government Corporate Counsel, Deputy and Assistant Government Corporate Counsel; (g) The Chairmen and Members of the Constitutional Commissions; (h) The Ombudsman, the Overall Deputy Ombudsman, the Deputy Ombudsman and the Special Prosecutor of the Office of the Ombudsman; (i) Heads of government agencies exercising quasi-judicial functions; (j) Incumbent deans, bar reviewers and professors of law who have teaching experience for at least ten (10) years in accredited law schools; (k) The Chancellor, Vice-Chancellor and members of the Corps of Professors and Professorial Lecturers of the Philippine Judicial Academy; and (l) Governors and Mayors. SEC. 2. Other parties exempted from the MCLE. The following Members of the Bar are likewise exempt: (a) Those who are not in law practice, private or public. (b) Those who have retired from law practice with the approval of the IBP Board of Governors.

Rule 7. EXEMPTIONS

SECTION 1. Parties exempted from the MCLE. -- The following members of the Bar are exempt from the MCLE requirement: (a) The President and the Vice President of the Philippines, and the Secretaries and Undersecretaries of Executive Departments; (b) Senators and Members of the House of Representatives; (c) The Chief Justice and Associate Justices of the Supreme Court, incumbent and retired members of the judiciary, incumbent members of the Judicial and Bar Council and incumbent court lawyers covered by the Philippine Judicial Academy program of continuing judicial education;

SEC. 3. Good cause for exemption from or modification of requirement A member may file a verified request setting forth good cause for exemption (such as physical disability, illness, post graduate study abroad, proven expertise in law, etc.) from compliance with or modification of any of the requirements, including an extension of time for compliance, in accordance with a procedure to be established by the MCLE Committee. SEC. 4. Change of status. The compliance period shall begin on the first day of the month in which a member ceases to be exempt under Sections 1, 2, or 3 of this Rule and shall end on the same day as that of all other members in the same Compliance Group. SEC. 5. Proof of exemption. Applications for exemption from or modification of the MCLE requirement shall be under oath and supported by documents. Rule 8. STANDARDS FOR APPROVAL OF

EDUCATION ACTIVITIES

SECTION 1. Approval of MCLE program. Subject to the implementing regulations that may be adopted by the MCLE Committee, continuing legal education program may be granted approval in either of two (2) ways: (1) the provider of the activity is an accredited provider and certifies that the activity meets the criteria of Section 2 of this Rule; and (2) the provider is specifically mandated by law to provide continuing legal education. SEC. 2. Standards for all education activities. All continuing legal education activities must meet the following standards: (a) The activity shall have significant current intellectual or practical content. (b) The activity shall constitute an organized program of learning related to legal subjects and the legal profession, including cross profession activities (e.g., accounting-tax or medical-legal) that enhance legal skills or the ability to practice law, as well as subjects in legal writing and oral advocacy. (c) The activity shall be conducted by a provider with adequate professional experience. (d) Where the activity is more than one (1) hour in length, substantive written materials must be distributed to all participants. Such materials must be distributed at or before the time the activity is offered. (e) In-house education activities must be scheduled at a time and location so as to be free from interruption like telephone calls and other distractions. Rule 9. ACCREDITATION OF PROVIDERS

SECTION 1. Accreditation of providers. -- Accreditation of providers shall be done by the MCLE Committee. SEC. 2. Requirements for accreditation of providers. Any person or group may be accredited as a provider for a term of two (2) years, which may be renewed, upon written application. All providers of continuing legal education activities, including in-house providers, are eligible to be accredited providers. Application for accreditation shall: (a) Be submitted on a form provided by the MCLE Committee; (b) Contain all information requested in the form; (c) Be accompanied by the appropriate approval fee.

SEC. 3. Requirements of all providers. -- All approved accredited providers shall agree to the following: (a) An official record verifying the attendance at the activity shall be maintained by the provider for at least four (4) years after the completion date. The provider shall include the member on the official record of attendance only if the members signature was obtained at the time of attendance at the activity. The official record of attendance shall contain the members name and number in the Roll of Attorneys and shall identify the time, date, location, subject matter, and length of the education activity. A copy of such record shall be furnished the MCLE COMMITTEE. (b) The provider shall certify that: (1) This activity has been approved BY THE MCLE COMMITTEE in the amount of ________ hours of which ______ hours will apply in (legal ethics, etc.), as appropriate to the content of the activity; (2) The activity conforms to the standards for approved education activities prescribed by these Rules and such regulations as may be prescribed by the MCLE COMMITTEE. (c) The provider shall issue a record or certificate to all participants identifying the time, date, location, subject matter and length of the activity. (d) The provider shall allow in-person observation of all approved continuing legal education activity by THE MCLE COMMITTEE, members of the IBP Board of Governors, or designees of the Committee and IBP staff Board for purposes of monitoring compliance with these Rules. (e) The provider shall indicate in promotional materials, the nature of the activity, the time devoted to each topic and identity of the instructors. The provider shall make available to each participant a copy of THE MCLE COMMITTEE-approved Education Activity Evaluation Form. (f) The provider shall maintain the completed Education Activity Evaluation Forms for a period of not less than one (1) year after the activity, copy furnished the MCLE COMMITTEE. (g) Any person or group who conducts an unauthorized activity under this program or issues a spurious certificate in violation of these Rules shall be subject to appropriate sanctions. SEC. 4. Renewal of provider accreditation. The accreditation of a provider may be renewed every two (2) years. It may be denied if the provider fails to comply with any of the requirements of these Rules or fails to provide satisfactory education activities for the preceding period.

SEC. 5. Revocation of provider accreditation. -- the accreditation of any provider referred to in Rule 9 may be revoked by a majority vote of the MCLE Committee, after notice and hearing and for good cause. Rule 10. FEE FOR APPROVAL OF ACTIVITY AND ACCREDITATION OF PROVIDER

SECTION 1. Payment of fees. Application for approval of an education activity or accreditation as a provider requires payment of the appropriate fee as provided in the Schedule of MCLE Fees. Rule 11. GENERAL COMPLIANCE PROCEDURES

SECTION 1. Compliance card. -- Each member shall secure from the MCLE Committee a Compliance Card before the end of his compliance period. He shall complete the card by attesting under oath that he has complied with the education requirement or that he is exempt, specifying the nature of the exemption. Such Compliance Card must be returned to the Committee not later than the day after the end of the members compliance period.

SEC. 2. Non-compliance notice and 60-day period to attain compliance. -Members failing to comply will receive a Non-Compliance Notice stating the specific deficiency and will be given sixty (60) days from the date of notification to file a response clarifying the deficiency or otherwise showing compliance with the requirements. Such notice shall contain the following language near the beginning of the notice in capital letters: IF YOU FAIL TO PROVIDE ADEQUATE PROOF OF COMPLIANCE WITH THE MCLE REQUIREMENT BY (INSERT DATE 60 DAYS FROM DATE OF NOTICE), YOU SHALL BE LISTED AS A DELINQUENT MEMBER AND SHALL NOT BE PERMITTED TO PRACTICE LAW UNTIL SUCH TIME AS ADEQUATE PROOF OF COMPLIANCE IS RECEIVED BY THE MCLE COMMITTEE. Members given sixty (60) days to respond to a Non-Compliance Notice may use this period to attain the adequate number of credit units for compliance. Credit units earned during this period may only be counted toward compliance with the prior compliance period requirement unless units in excess of the requirement are earned, in which case the excess may be counted toward meeting the current compliance period requirement. Rule 13. CONSEQUENCES OF NON-COMPLIANCE

SEC. 2. Member record keeping requirement. -- Each member shall maintain sufficient record of compliance or exemption, copy furnished the MCLE Committee. The record required to be provided to the members by the provider pursuant to Section 3 of Rule 9 should be a sufficient record of attendance at a participatory activity. A record of nonparticipatory activity shall also be maintained by the member, as referred to in Section 3 of Rule 5. Rule 12. NON-COMPLIANCE PROCEDURES

SECTION 1. What constitutes non-compliance. The following shall constitute noncompliance: (a) Failure to complete the education requirement within the compliance period;

SECTION 1. Non-compliance fee. -- A member who, for whatever reason, is in noncompliance at the end of the compliance period shall pay a non-compliance fee. SEC. 2. Listing as delinquent member. -- A member who fails to comply with the requirements after the sixty (60) day period for compliance has expired, shall be listed as a delinquent member of the IBP upon the recommendation of the MCLE Committee. The investigation of a member for non-compliance shall be conducted by the IBPs Commission on Bar Discipline as a fact-finding arm of the MCLE Committee. SEC. 3. Accrual of membership fee. -- Membership fees shall continue to accrue at the active rate against a member during the period he/she is listed as a delinquent member. Rule 14. REINSTATEMENT

(b) Failure to provide attestation of compliance or exemption; (c) Failure to provide satisfactory evidence of compliance (including evidence of exempt status) within the prescribed period; (d) Failure to satisfy the education requirement and furnish evidence of such compliance within sixty (60) days from receipt of non-compliance notice; (e) Failure to pay non-compliance fee within the prescribed period; (f) Any other act or omission analogous to any of the foregoing or intended to circumvent or evade compliance with the MCLE requirements.

SECTION 1. Process. -- The involuntary listing as a delinquent member shall be terminated when the member provides proof of compliance with the MCLE requirement, including payment of non-compliance fee. A member may attain the necessary credit units to meet the requirement for the period of non-compliance during the period the member is on inactive status. These credit units may not be counted toward meeting the current compliance period requirement. Credit units earned during the period of non-compliance in excess of the number needed to satisfy the prior compliance period requirement may be counted toward meeting the current compliance period requirement.

SEC. 2. Termination of delinquent listing is an administrative process. The termination of listing as a delinquent member is administrative in nature AND it shall be made by the MCLE Committee. Rule. 15. COMMITTEE ON MANDATORY CONTINUING

LEGAL EDUCATION

SECTION 1. Composition. The MCLE Committee shall be composed of five (5) members, namely, a retired Justice of the Supreme Court as Chair, and four (4) members respectively nominated by the IBP, the Philippine Judicial Academy, a law center designated by the Supreme Court and associations of law schools and/or law professors. The members of the Committee shall be of proven probity and integrity. They shall be appointed by the Supreme Court for a term of three (3) years and shall receive such compensation as may be determined by the Court. SEC. 2. Duty of committee. The MCLE Committee shall administer and adopt such implementing rules as may be necessary subject to the approval of the Supreme Court. It shall, in consultation with the IBP Board of Governors, prescribe a schedule of MCLE fees with the approval of the Supreme Court. SEC. 3. Staff of the MCLE Committee. Subject to approval by the Supreme Court, the MCLE Committee shall employ such staff as may be necessary to perform the recordkeeping, auditing, reporting, approval and other necessary functions. SEC. 4. Submission of annual budget. The MCLE Committee shall submit to the Supreme Court for approval, an annual budget [for a subsidy] to establish, operate and maintain the MCLE Program. This resolution shall take effect on the fifteenth of September 2000, following its publication in two (2) newspapers of general circulation in the Philippines. Adopted this 22nd day of August, 2000, as amended on 02 October 2001. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur. Kapunan, J., on official leave.

Republic of the Philippines SUPREME COURT Manila A.M. No. 12-8-8-SC JUDICIAL AFFIDAVIT RULE Whereas, case congestion and delays plague most courts in cities, given the huge volume of cases filed each year and the slow and cumbersome adversarial syste1n that the judiciary has in place; Whereas, about 40% of criminal cases are dismissed annually owing to the fact that complainants simply give up con1ing to court after repeated postponements; Whereas, few foreign businessmen make long-term investments in the Philippines because its courts are unable to provide ample and speedy protection to their investments, keeping its people poor; Whereas, in order to reduce the time needed for completing the testimonies of witnesses in cases under litigation, on February 21, 2012 the Supreme Court approved for piloting by trial courts in Quezon City the compulsory use of judicial affidavits in place of the direct testimonies of witnesses; Whereas, it is reported that such piloting has quickly resulted in reducing by about twothirds the time used for presenting the testimonies of witnesses, thus speeding up the hearing and adjudication of cases; Whereas, the Supreme Court Committee on the Revision of the Rules of Court, headed by Senior Associate Justice Antonio T. Carpio, and the Sub-Committee on the Revision of the Rules on Civil Procedure, headed by Associate Justice Roberto A. Abad, have recommended for adoption a Judicial Affidavit Rule that will replicate nationwide the success of the Quezon City experience in the use of judicial affidavits; and Whereas, the Supreme Court En Banc finds merit in the recommendation; NOW, THEREFORE, the Supreme Court En Banc hereby issues and promulgates the following: Section 1. Scope. - (a) This Rule shall apply to all actions, proceedings, and incidents requiring the reception of evidence before: (1) The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial Courts, the Municipal Circuit Trial Courts, and the Shari' a Circuit Courts but shall not apply to small claims cases under A.M. 08-8-7-SC;

(2) The Regional Trial Courts and the Shari'a District Courts; (3) The Sandiganbayan, the Court of Tax Appeals, the Court of Appeals, and the Shari'a Appellate Courts; (4) The investigating officers and bodies authorized by the Supreme Court to receive evidence, including the Integrated Bar of the Philippine (IBP); and (5) The special courts and quasi-judicial bodies, whose rules of procedure are subject to disapproval of the Supreme Court, insofar as their existing rules of procedure contravene the provisions of this Rule.1 (b) For the purpose of brevity, the above courts, quasi-judicial bodies, or investigating officers shall be uniformly referred to here as the "court." Section 2. Submission of Judicial Affidavits and Exhibits in lieu of direct testimonies. - (a) The parties shall file with the court and serve on the adverse party, personally or by licensed courier service, not later than five days before pre-trial or preliminary conference or the scheduled hearing with respect to motions and incidents, the following: (1) The judicial affidavits of their witnesses, which shall take the place of such witnesses' direct testimonies; and (2) The parties' docun1entary or object evidence, if any, which shall be attached to the judicial affidavits and marked as Exhibits A, B, C, and so on in the case of the complainant or the plaintiff, and as Exhibits 1, 2, 3, and so on in the case of the respondent or the defendant. (b) Should a party or a witness desire to keep the original document or object evidence in his possession, he may, after the same has been identified, marked as exhibit, and authenticated, warrant in his judicial affidavit that the copy or reproduction attached to such affidavit is a faithful copy or reproduction of that original. In addition, the party or witness shall bring the original document or object evidence for comparison during the preliminary conference with the attached copy, reproduction, or pictures, failing which the latter shall not be admitted. This is without prejudice to the introduction of secondary evidence in place of the original when allowed by existing rules. Section 3. Contents of judicial Affidavit. - A judicial affidavit shall be prepared in the language known to the witness and, if not in English or Filipino, accompanied by a translation in English or Filipino, and shall contain the following: (a) The name, age, residence or business address, and occupation of the witness;

(b) The name and address of the lawyer who conducts or supervises the examination of the witness and the place where the examination is being held; (c) A statement that the witness is answering the questions asked of him, fully conscious that he does so under oath, and that he may face criminal liability for false testimony or perjury; (d) Questions asked of the witness and his corresponding answers, consecutively numbered, that: (1) Show the circumstances under which the witness acquired the facts upon which he testifies; (2) Elicit from him those facts which are relevant to the issues that the case presents; and (3) Identify the attached documentary and object evidence and establish their authenticity in accordance with the Rules of Court; (e) The signature of the witness over his printed name; and (f) A jurat with the signature of the notary public who administers the oath or an officer who is authorized by law to administer the same. Section 4. Sworn attestation of the lawyer. - (a) The judicial affidavit shall contain a sworn attestation at the end, executed by the lawyer who conducted or supervised the examination of the witness, to the effect that: (1) He faithfully recorded or caused to be recorded the questions he asked and the corresponding answers that the witness gave; and (2) Neither he nor any other person then present or assisting him coached the witness regarding the latter's answers. (b) A false attestation shall subject the lawyer mentioned to disciplinary action, including disbarment. Section 5. Subpoena. - If the government employee or official, or the requested witness, who is neither the witness of the adverse party nor a hostile witness, unjustifiably declines to execute a judicial affidavit or refuses without just cause to make the relevant books, documents, or other things under his control available for copying, authentication, and eventual production in court, the requesting party may avail himself of the issuance of a subpoena ad testificandum or duces tecum under Rule 21 of the Rules of Court. The rules governing the issuance of a subpoena to the witness in this case shall be the same as when taking his deposition except that the taking of a judicial affidavit shal1 be understood to be ex parte.

Section 6. Offer of and objections to testimony in judicial affidavit. - The party presenting the judicial affidavit of his witness in place of direct testimony shall state the purpose of such testimony at the start of the presentation of the witness. The adverse party may move to disqualify the witness or to strike out his affidavit or any of the answers found in it on ground of inadmissibility. The court shall promptly rule on the motion and, if granted, shall cause the marking of any excluded answer by placing it in brackets under the initials of an authorized court personnel, without prejudice to a tender of excluded evidence under Section 40 of Rule 132 of the Rules of Court. Section 7. Examination of the witness on his judicial affidavit. - The adverse party shall have the right to cross-examine the witness on his judicial affidavit and on the exhibits attached to the same. The party who presents the witness may also examine him as on re-direct. In every case, the court shall take active part in examining the witness to determine his credibility as well as the truth of his testimony and to elicit the answers that it needs for resolving the issues. Section 8. Oral offer of and objections to exhibits. - (a) Upon the termination of the testimony of his last witness, a party shall immediately make an oral offer of evidence of his documentary or object exhibits, piece by piece, in their chronological order, stating the purpose or purposes for which he offers the particular exhibit. (b) After each piece of exhibit is offered, the adverse party shall state the legal ground for his objection, if any, to its admission, and the court shall immediately make its ruling respecting that exhibit. (c) Since the documentary or object exhibits form part of the judicial affidavits that describe and authenticate them, it is sufficient that such exhibits are simply cited by their markings during the offers, the objections, and the rulings, dispensing with the description of each exhibit. Section 9. Application of rule to criminal actions. - (a) This rule shall apply to all criminal actions: (1) Where the maximum of the imposable penalty does not exceed six years; (2) Where the accused agrees to the use of judicial affidavits, irrespective of the penalty involved; or (3) With respect to the civil aspect of the actions, whatever the penalties involved are. (b) The prosecution shall submit the judicial affidavits of its witnesses not later than five days before the pre-trial, serving copies if the same upon the accused. The complainant or public prosecutor shall attach to the affidavits such documentary or object evidence as he

may have, marking them as Exhibits A, B, C, and so on. No further judicial affidavit, documentary, or object evidence shall be admitted at the trial. (c) If the accused desires to be heard on his defense after receipt of the judicial affidavits of the prosecution, he shall have the option to submit his judicial affidavit as well as those of his witnesses to the court within ten days from receipt of such affidavits and serve a copy of each on the public and private prosecutor, including his documentary and object evidence previously marked as Exhibits 1, 2, 3, and so on. These affidavits shall serve as direct testimonies of the accused and his witnesses when they appear before the court to testify. Section 10. Effect of non-compliance with the judicial Affidavit Rule. - (a) A party who fails to submit the required judicial affidavits and exhibits on time shall be deemed to have waived their submission. The court may, however, allow only once the late submission of the same provided, the delay is for a valid reason, would not unduly prejudice the opposing party, and the defaulting party pays a fine of not less than P 1,000.00 nor more than P 5,000.00 at the discretion of the court. (b) The court shall not consider the affidavit of any witness who fails to appear at the scheduled hearing of the case as required. Counsel who fails to appear without valid cause despite notice shall be deemed to have waived his client's right to confront by crossexamination the witnesses there present. (c) The court shall not admit as evidence judicial affidavits that do not conform to the content requirements of Section 3 and the attestation requirement of Section 4 above. The court may, however, allow only once the subsequent submission of the compliant replacement affidavits before the hearing or trial provided the delay is for a valid reason and would not unduly prejudice the opposing party and provided further, that public or private counsel responsible for their preparation and submission pays a fine of not less than P 1,000.00 nor more than P 5,000.00, at the discretion of the court. Section 11. Repeal or modification of inconsistent rules. - The provisions of the Rules of Court and the rules of procedure governing investigating officers and bodies authorized by the Supreme Court to receive evidence are repealed or modified insofar as these are inconsistent with the provisions of this Rule.1âwphi1 The rules of procedure governing quasi-judicial bodies inconsistent herewith are hereby disapproved. Section 12. Effectivity. - This rule shall take effect on January 1, 2013 following its publication in two newspapers of general circulation not later than September 15, 2012. It shall also apply to existing cases. Manila, September 4, 2012.

MARIA LOURDES P. A. SERENO Chief Justice

Republic of the Philippines Supreme Court Manila A.M. No. 11-9-4-SC EFFICIENT USE OF PAPER RULE Whereas, to produce 500 reams of paper, twenty trees are cut and 100,000 liters of water are used, water that is no longer reusable because it is laden with chemicals and is just released to the environment to poison our rivers and seas; Whereas, there is a need to cut the judicial system’s use excessive quantities of costly paper, save our forests, avoid landslides, and mitigate the worsening effects of climate change that the world is experiencing; Whereas, the judiciary can play a big part in saving our trees, conserving precious water and helping mother earth; NOW, THEREFORE, the Supreme Court En Banc hereby issues and promulgates the following: Sec. 1. Title of the Rule– This rule shall be known and cited as the Efficient Use of Paper Rule. Sec. 2. Applicability. – This rule shall apply to all courts and quasi-judicial bodies under the administrative supervision of the Supreme Court. Sec. 3. Format and Style. – a) All pleadings, motions and similar papers intended for the court and quasi-judicial body’s consideration and action (court-bound papers) shall written in single space with one-and-a –half space between paragraphs, using an easily readable font style of the party’s choice, of 14-size font, and on a 13 –inch by 8.5- inch white bond paper; and b) All decisions, resolutions and orders issued by courts and quasi-judicial bodies under the administrative supervision of the Supreme Court shall comply with these requirements. Similarly covered are the reports submitted to the courts and transcripts of stenographic notes. Sec. 4. Margins and Prints .— The parties shall maintain the following margins on all court-bound papers: a left hand margin of 1.5 inches from the edge; an upper margin of 1.2 inches from the edge; a right hand margin of 1.0 inch from the edge; and a lower margin of 1.0 inch from the edge. Every page must be consecutively numbered.

Sec. 5. Copies to be filed. – Unless otherwise directed by the court, the number of courtbound papers that a party is required or desires to file shall be as follows: a. In the Supreme Court, one original (properly marked) and four copies, unless the case is referred to the Court En Banc, in which event, the parties shall file ten additional copies. For the En Banc, the parties need to submit only two sets of annexes, one attached to the original and an extra copy. For the Division, the parties need to submit also two sets of annexes, one attached to the original and an extra copy. All members of the Court shall share the extra copies of annexes in the interest of economy of paper. Parties to cases before the Supreme Court are further required, on voluntary basis for the first six months following the effectivity of this Rule and compulsorily afterwards unless the period is extended, to submit, simultaneously with their court-bound papers, soft copies of the same and their annexes (the latter in PDF format) either by email to the Court’s e-mail address or by compact disc (CD). This requirement is in preparation for the eventual establishment of an e-filing paperless system in the judiciary. b. In the Court of Appeals and the Sandiganbayan, one original (properly marked) and two copies with their annexes; c. In the Court of Tax Appeals, one original (properly marked) and two copies with annexes. On appeal to the En Banc, one Original (properly marked) and eight copies with annexes; and d. In other courts, one original (properly marked) with the stated annexes attached to it. Sec. 6. Annexes Served on Adverse Party. – A party required by the rules to serve a copy of his court-bound on the adverse party need not enclose copies of those annexes that based on the record of the court such party already has in his possession. In the event a party requests a set of the annexes actually filed with the court, the part who filed the paper shall comply with the request within five days from receipt. Sec. 7. Date of Effectivity. – This rule shall take effect on January 1, 2013 after publication in two newspapers of general circulation in the Philippines. Manila, November 13, 2012.

SECOND DIVISION [A.C. No. 2343. July 30, 1982.] FACUNDO LUBIANO, Complainant, v. JOEL G. GORDOLLA, Respondent. SYNOPSIS Complainant Lubiano charged respondent Gordolla for his failure to observe the standard expected of him as a member of the Bar, imposed by the Canons of Professional Ethics, when, in a motion for reconsideration filed by him as counsel for Robina Farms, Inc., he described the award of separation pay to the complainant as "ill-gotten wealth", the decision of the National Labor Relations Commission as an "unknowing" one, and the sheriff’s office as "a partner in ‘crime’." Respondent attributed said statements to his zeal and enthusiasm in the performance of his duty to uphold his client’s case and argued that they are covered by the mantle of absolute privileged communication, being relevant and pertinent to the subject of inquiry in the NLRC case. The Supreme Court held that, although the insouciant language used by respondent Gordolla does not constitute sufficient cause for his disbarment, it falls short of the criterion mandated by Section 20(b) of Rule 138 of the Rules of Court and the Canons of Professional Ethics; that respondent became unmindful of the fact that in addressing the National Labor Relations Commission he remained a member of the Bar whose first duty is not to his client but to the administration of justice and whose conduct ought to be and must be scrupulously observant of law and ethics; and that, despite the fact that the rule of absolute privileged communication absolves beforehand the lawyer from civil and criminal liability based on the statements made in the pleadings, he remains subject to the Court’s supervisory and disciplinary powers for lapses in the observance of his duty as a member of the legal profession. Respondent Gordolla is ordered to pay a fine of P200.00, with subsidiary imprisonment in case of insolvency, and warned that a repetition of a similar act would be dealt with more severely.

SYLLABUS

1. LEGAL ETHICS; CANONS OF PROFESSIONAL ETHICS; IMPOSES A STANDARD TO BE OBSERVED BY LAWYERS. — The Canons of Professional Ethics imposes upon the lawyer the duty of maintaining a respectful attitude towards the court. He is likewise expected to treat adverse witnesses and suitors with fairness and due consideration. As such, he

should never minister to the malevolence or prejudice of a client in a trial or conduct of a cause (Section 18, Canons of Professional Ethics). He should be temperate in acts and words, a paragon in civility. 2. ID.; SECTION 20(b) OF RULE 138 OF THE RULES OF COURT AND THE CANONS OF PROFESSIONAL ETHICS; STATEMENTS USED BY RESPONDENT IN HIS MOTION VIOLATED CRITERION PROVIDED THEREIN. — Complainant decries the statements contained in the motion for reconsideration with prayer for restraining order filed by respondent Gordolla, as counsel for Robina Farms, Inc., in NLRC Case No. RB-IV-22635-78-T. It is through a scrupulous preference for respectful language that a lawyer best demonstrates his observance or respect due to the courts and judicial officers, as mandated by Section 20(b) of Rule 138 of the Rules of Court and the Canons of Professional Ethics. Respondent’s choice of words manifestly falls short of this criterion. In describing the award of separation pay to complainant Lubiano as "ill-gotten wealth", the decision of the National Labor Relations Commission, an administrative body exercising quasi-judicial functions, as an "unknowing" one, and the sheriff’s office as a "partner in ‘crime’", respondent precariously ventured beyond the bounds of propriety and civility. 3. ID.; ID.; LAWYERS REMAIN SUBJECT TO COURT’S DISCIPLINARY POWERS; ALTHOUGH STATEMENTS MADE IN PLEADINGS ARE PRIVILEGED. — Respondent’s attempt to escape responsibility by attributing the insouciant language used in his motion for reconsideration to his zeal and enthusiasm in the performance of his duty to uphold his client’s cause, is unavailing. Respondent became unmindful of the fact that, in addressing the National Labor Relations Commission, he nonetheless remained a member of the Bar, an oathbound servant of the law, whose first duty is not to his client but to the administration of justice and whose conduct ought to be and must be scrupulously observant of law and ethics. The rule of absolute privileged communication absolves beforehand the lawyer from civil and criminal liability based on the statements made in the pleadings. But like the member of the legislature who enjoys immunity from civil and criminal liability arising from any speech or debate delivered in the Batasan or in any committee thereof (Article VIII, Section 9 of the Constitution), but nevertheless remains subject to the disciplinary authority of the legislature for said speech or debate (Osmeña v. Pendatum, 109 Phil, 863), a lawyer equally remains subject to the Court’s supervisory and disciplinary powers for lapses in the observance of his duty as a member of the legal profession. 4. ID.; ID.; RESPONDENT NOT DISBARRED FOR INSOUCIANT LANGUAGE USED IN HIS MOTION, BUT ORDERED TO PAY FINE AND WARNED; CASE AT BAR. — While the insouciant language used in his motion does not constitute sufficient cause for disbarment of respondent, the Court is not inclined to disregard them as merely trivial and innocuous. Respondent Atty. Joel G. Gordolla is ordered to pay a fine of P200.00, with subsidiary imprisonment in case of insolvency, and is warned that a repetition of a similar act would be dealt with more severely.

DECISION ESCOLIN, J.: The Canons of Professional Ethics imposes upon the lawyer the duty of maintaining a respectful attitude towards the court. He is likewise expected to treat adverse witnesses and suitors with fairness and due consideration. As such, he should never minister to the malevolence or prejudice of a client in a trial or conduct of a cause 1 . He should be temperate in acts and words, a paragon in civility. For what is claimed as a failure of Atty. Joel G. Gordolla to observe this standard, his disbarment is sought by complainant Facundo Lubiano. Complainant describes the following statements contained in a motion for reconsideration with prayer for restraining order filed by respondent Gordolla, as counsel for Robina Farms, Inc., in NLRC Case No. RB-IV-22635-78-T:cralawnad "Meanwhile, the complainant, very eager to get hold of the ill-gotten wealth (thru unknowing award by the Hon. Commission) has used the Sheriff’s Office as his partner in ‘crime’ and the latter thru Sheriff Juanito Atienza, is now and about to enforce the terror (sic) of the award thru Writ of Execution."cralaw virtua1aw library While the aforequoted paragraph does not constitute sufficient cause for disbarment of respondent, We are not inclined to disregard the insouciant language used by respondent as merely trivial and innocuous. The language of a lawyer, oral or written, must be respectful and restrained, in keeping with the dignity of the legal profession. It is through a scrupulous preference for respectful language that a lawyer best demonstrates his observance or respect due to the courts and judicial officers, as mandated by Section 20(b) of Rule 138 of the Rules of Court and the Canons of Professional Ethics. Respondent’s choice of words manifestly falls short of this criterion. In describing the award of separation pay to complainant Lubiano as "ill-gotten wealth", the decision of the National Labor Relations Commission, an administrative body exercising quasi-judicial functions, as an "unknowing" one, and the sheriff’s office as a "partner in ‘crime’", respondent precariously ventured beyond the bounds of propriety and civility. Respondent’s attempt to escape responsibility by attributing said statements to his zeal and enthusiasm in the performance of his duty to uphold his client’s cause, is unavailing. As this Court said in Rheem of the Philippines v. Ferrer 2 :jgc:chanrobles.com.ph "It is but to repeat an old idea when we say that enthusiasm, or even excess of it, is not

really bad. In fact, the one or the other is no less a virtue, if channeled in the right direction. However, it must be circumscribed within the bounds of propriety and with due regard for the proper place of courts in our system of government."cralaw virtua1aw library Respondent became unmindful of the fact that in addressing the National Labor Relations Commission, he nonetheless remained a member of the Bar, an oath-bound servant of the law, whose first duty is not to his client but to the administration of justice and whose conduct ought to be and must be scrupulously observant of law and ethics 3 . Respondent would argue that the statements in question, being relevant and pertinent to the subject of inquiry in said case, are covered by the mantle of absolute privileged communication; and that, as such, they cannot be used as basis for any action, however false and malicious the statements may be. We find no necessity to dwell at length on the issue as to whether or not the statements in question are relevant, for in either case this Court will not be inhibited from exercising its supervisory authority over lawyers who misbehave or fail to live up to that standard expected of them as members of the Bar. Indeed, the rule of absolute privileged communication absolves beforehand the lawyer from civil and criminal liability based on the statements made in the pleadings. But like the member of the legislature who enjoys immunity from civil and criminal liability arising from any speech or debate delivered in the Batasan or in any committee thereof 4 , but nevertheless remains subject to the disciplinary authority of the legislature for said speech or debate 5 , a lawyer equally remains subject to this Court’s supervisory and disciplinary powers for lapses in the observance of his duty as a member of the legal profession.cralawnad PREMISES CONSIDERED, respondent Atty. Joel G. Gordolla is hereby ordered to pay a fine of P200.00, payable to the Clerk of this Court within ten (10) days from notice of this decision, with subsidiary imprisonment in case of insolvency. He is further warned that a repetition of a similar act would be dealt with more severely. SO ORDERED. Barredo (Chairman), Aquino, Concepcion, Jr., Guerrero, Abad Santos and De Castro, JJ., concur.

FIRST DIVISION A.C. No. 3452, June 23, 2014 HENRY SAMONTE, Petitioner, v. ATTY. GINES ABELLANA, Respondent. DECISION BERSAMIN, J.: A lawyer who willfully resorts to any falsehood in order to mislead the courts or his clients on the status of their causes exhibits his unworthiness to remain a member of the Law Profession. This is because he is always expected to be honest and forthright in his dealings with them. He thereby merits the condign sanction of suspension from the practice of law, if not disbarment.

To support his administrative complaint, Samonte attached the following annexes, namely:chanroblesvirtuallawlibrary Comparative photocopies of the cover page of the complaint on file in the RTC and of the cover page of the complaint Atty. Abellana furnished him;2 A photocopy of the order issued on January 16, 1989, and a photocopy of the order issued on January 19, 1990 in which the RTC observed that “[t]he formal offer of plaintiff’s exhibits is rather very late;”3 and The motion to change counsel, in which Samonte stated that Atty. Abellana had failed to promptly attend court hearings and to do other legal services required of him as the counsel. In the lower left portion of the motion, Atty. Abellana noted the motion subject to the reservation that his attorneys fees should still be paid.4

Antecedents

On February 16, 1990, complainant Henry E. Samonte brought this administrative complaint against respondent Atty. Gines N. AbelJana who had represented him as the plaintiff in Civil Case No. CEB-6970 entitled Capt. Henry E. Samonte v. Authographics, Inc., and Nelson Yu of the Regional Trial Court in Cebu City.1 In the administrative complaint, Samonte enumerated the serious acts of professional misconduct by Atty. Abellana, to wit:chanroblesvirtuallawlibrary Falsification of documents, when Atty. Abellana made it appear that he had filed Civil Case No. CEB-6970 on June 10, 1988, conformably with their agreement, although the complaint was actually filed on June 14, 1988; Dereliction of duty, when Atty. Abellana failed to: (a) file the reply vis-à-vis the answer with counterclaim, with his omission having delayed the pre-trial of the case; (b) inform the trial court beforehand that Samonte could not be available on a scheduled hearing, thereby incurring for the plaintiff’s side an unexplained absence detrimental to Samonte as the plaintiff; and (c) submit an exhibit required by the trial judge, only to eventually submit it three months later; Gross negligence and tardiness in attending the scheduled hearings; and Dishonesty for not issuing official receipts for every cash payments made by Samonte for his court appearances and his acceptance of the case.

On March 12, 1990, the Court required Atty. Abellana to comment on the administrative complaint. In his comment dated April 6, 1990,5 Atty. Abellana denied the charge of falsification of documents, clarifying that the actual filing of the complaint could be made only on June 14, 1988 instead of on June 10, 1988 because Samonte had not given enough money to cover the filing fees and other charges totaling P5,027.76; and that Samonte shelled out only P5,000.00, contrary to their agreement in April 1988 on paying to him P10,000.00 as the acceptance fee in addition to the filing fees. He asserted that the charge of dereliction of duty was baseless, because he had filed the reply on December 2, 1988 after receiving the answer with counterclaim of the defendants on August 2, 1988, attaching as proof the copies of the reply (Annex 8 and Annex 9 of his comment);6 and that it was the RTC, not him, who had scheduled the pre-trial on January 16, 1989.7 Anent his non- attendance at the hearings in Civil Case No. CEB-6970, he explained that although he had informed the RTC of his having been either stranded in another province, or having attended the arraignment of another client in another court, the presiding judge had opted not to await his arrival in the courtroom. He blamed Samonte for his inability to submit the formal offer of exhibits on time, pointing out that Samonte had failed to give the duplicate originals of the documentary exhibits despite his request because of the latter’s absence from the country. He countered that it was Samonte who had been dishonest, because Samonte had given only the filing fees plus at least P2,000.00 in contravention of their agreement on the amount of P10,000.00 being his acceptance fees in addition to the filing fees; that the filing fees paid were covered by receipts issued by the Clerk of Court; that no receipts were issued for the P200.00/appearance fee conformably with the practice of most lawyers; and that Samonte had not also demanded any receipts.

Atty. Abellana branded as unethical Samonte’s submission of a motion to change counsel,8 stating that the latter did not thereby exhibit the courtesy of informing him beforehand on the intention of not meeting his obligation to him as the counsel; that Samonte had been forced to issue to him a check after the Branch Clerk of Court had told him that his motion to change counsel would not be acted upon unless it carried Atty. Abellana’s conformity as the counsel; and that he had duly acknowledged the check.9 On May 23, 1990, the Court received Samonte’s letter dated May 8, 1990 10 embodying additional charges of falsification of documents, dereliction of duty and dishonesty based on the reply and the annexes Atty. Abellana had filed. Samonte noted in the letter that the reply attached to the comment of Atty. Abellana was not authentic based on the categorical statement of the Branch Clerk of Court of Branch 5 of the RTC in Cebu City to the effect that no such reply had been filed in behalf of Samonte; and that the rubber stamp affixed on the reply supposedly filed by Atty. Abellana in Samonte’s behalf was not also the official rubber stamp of Branch 5.11 Samonte denied being the cause of delay in the submission of the formal offer of exhibits, and reminded that the documentary exhibits concerned had been shown to the trial court during his testimony, with the opposing party not even objecting to their authenticity. Samonte declared that his agreement with Atty. Abellana on the fees for all his legal services stipulated the equivalent of 20% of the awarded damages; that the amount demanded was P1.12 Million;12 that he paid Atty. Abellana a total of P7,027.00 for filing expenses, plus P5,000.00 that he gave as a token payment for Atty. Abellana’s services after discovering the latter’s inefficiency and fraudulent practices. On May 30, 199013 and July 30, 1990,14 the Court referred the administrative complaint to the Integrated Bar of the Philippines (IBP) for investigation. Proceedings in the IBP

On November 3, 1994, the IBP notified the parties to appear and present their evidence at 10:00 am on November 18, 1994.15 However, the parties sought postponements.16 The hearing was reset several times more for various reasons, namely: on December 9, 1994 due to the IBP Commissioner being out of town, but telegrams were sent to the parties on December 6, 1994;17 on April 12, 2002, with the hearing being cancelled;18 and on March 7, 2003, with the hearing being cancelled until further notice.19 On February 7, 2005, the IBP received a motion to quash dated January 7, 2005 from Atty. Abellana,20seeking the dismissal of the administrative complaint because of the lack of interest on the part of Samonte. Atty. Abellana observed therein that Samonte had always sought the postponement of the hearings.

Reacting to the motion to quash, Samonte requested an early hearing by motion filed on February 9, 2005,21 declaring his interest in pursuing the administrative complaint against Atty. Abellana. On March 22, 2005,22 IBP Commissioner Victoria Gonzalez-De Los Reyes set the mandatory conference on June 22, 2005. In that conference, only Samonte appeared;23 hence, the IBP just required the parties to submit their verified position papers within 30 days from notice. Nonetheless, the IBP scheduled the clarificatory hearing on August 18, 2005.24 Samonte submitted his position paper on August 2, 2005.25 On August 9, 2005, Atty. Abellana requested an extension of his period to submit his own position paper allegedly to allow him to secure relevant documents from the trial court.26 On August 18, 2005, the parties appeared for the clarificatory hearing. The case was thereafter deemed submitted for resolution. On August 29, 2005, Samonte presented a verified amended position paper, reiterating his allegations against Atty. Abellana.27 Also on August 29, 2005, Atty. Abellana submitted his verified position paper dated August 17, 2005,28 in which he represented that although he had been at times late for the hearings he had nonetheless efficiently discharged his duties as the counsel for Samonte; that he had not caused any delay in the case; that it was Samonte who had been unavailable at times because of his work as an airline pilot; that the complainant had discharged him as his counsel in order to avoid paying his obligation to him; and that the complainant filed this disbarment case after he lost his own civil case in the RTC. He attached all the pleadings he had filed on behalf of the complainant, except the abovestated replies. On May 1, 2008,29 the IBP Commission on Bar Discipline found Atty. Abellana negligent in handling certain aspects of his client’s case, like not filing a reply to the defendants’ answer with counterclaims in order to deny the new matters raised in the answer; resorting to falsehood to make it appear that he had filed the reply; and being considerably late in submitting the formal offer of exhibits for Samonte, as noted even by the trial judge in the order dated January 19, 1990. It observed that although the negligence of Atty. Abellana did not necessarily prejudice his client’s case, his lack of honesty and trustworthiness as an attorney, and his resort to falsehood and deceitful practices were a different matter;30 noted that he had twice resorted to falsehood, the first being when he tried to make it appear that the complaint had been filed on June 10, 1988 despite the court records showing that the complaint had been actually filed only on June 14, 1988; and the second being when he had attempted to deceive his client about his having filed the reply by producing a document bearing a rubber stamp marking

distinctively different from that of the trial court’s; that he did not dispute the pieces of material evidence adduced against him; that he had explained that the reason for his delay in the filing of the complaint had been the complainant’s failure to pay the agreed fees on time; and that he had only stated that he had filed a reply, without presenting proof of his having actually filed such in court. The IBP Commission on Bar Discipline recommended the disbarment of Atty. Abellana, observing as follows:chanroblesvirtuallawlibrary x x x Apart from his negligent handling of portions of the civil case, said respondent has shown a facility for utilizing false and deceitful practices as a means to cover-up his delay and lack of diligence in pursuing the case of his client. Taken together as a whole, the respondent’s acts are nothing short of deplorable. WHEREFORE, premises considered, it is respectfully recommended that respondent Atty. Gines Abellana be disbarred from the practice of law for resorting to false and/or deceitful practices, and for failure to exercise honesty and trustworthiness as befits a member of the bar. (Bold emphasis supplied)

On June 5, 2008, the IBP Board of Governors, albeit adopting the findings of the IBP Investigating Commissioner, suspended Atty. Abellana from the practice of law for one year, to wit:chanroblesvirtuallawlibrary RESOLVED to ADOPT and APPROVE, as it is hereby unanimously ADOPTED and APPROVED, with modification, the Report and Recommendation of the Investigating Commissioner of the above- entitled case, herein made part of this Resolution as Annex “A”, and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and for resorting to falsehood and/or deceitful practices, and for failure to exercise honesty and trustworthiness as befits member of the Bar, Atty. Gines N. Abellana is hereby SUSPENDED from the practice of law for one (1) year.31 (Bold emphasis supplied)

On September 25, 2008, Atty. Abellana moved for reconsideration based on the following grounds:32 That the imposition of sanction for the suspension of the undersigned from the practice of law for one (1) year is too stiff in relation to the alleged unethical conduct committed by the respondent; That the findings of the investigating commissioner is not fully supported with evidence;

That the complaint of the complainant is not corroborated by testimonial evidence so that it is hearsay and self-serving.

In support of his motion, Atty. Abellana rehashed most of his previous arguments, and stated that the “enumerations of failures are belied by the existence of Reply to counterclaims, which were attached as Annexes “8” and “9” of the Position Paper of respondent.”33 It is noted, however, that Annex 8 and Annex 9 of Atty. Abellana’s position paper were different documents, namely: Annex 834 (Manifestation and Opposition to Plaintiff’s Motion to Change Counsel); and Annex 935 (Manifestation). Nonetheless, he argued that both documents were already part of the records of the case, and that anyway Atty. Geronimo V. Nazareth, the Branch Clerk of Court, did not execute any affidavit or certification to the effect that both documents were inexistent. He reminded that Samonte had only said that both documents “seemed to be falsified documents” based on the certification of Atty. Nazareth on the official rubber stamp of the court. The IBP required Samonte to comment on Atty. Abellana’s motion for reconsideration.36 In his comment dated October 21, 2008,37 Samonte reiterated his allegations against Atty. Abellana; insisted that Atty. Abellana did not refute the charges against him; and noted that the reply that Atty. Abellana had supposedly filed in the case was not even annexed either to his position paper and motion for reconsideration. On December 16, 2008, Atty. Abellana filed a motion requesting to be allowed to submit certified true copies of his exhibits, i.e., the pleadings he had submitted in the RTC.38 On April 2, 2009, Samonte filed a motion for early resolution.39 On September 15, 2009, Atty. Abellana filed a supplemental motion for reconsideration. 40 On June 22, 2013, the IBP Board of Governors denied the motion for reconsideration of Atty. Abellana.41 Ruling

We adopt and approve the findings of the IBP Board of Governors by virtue of their being substantiated by the records. In his dealings with his client and with the courts, every lawyer is expected to be honest, imbued with integrity, and trustworthy. These expectations, though high and demanding, are the professional and ethical burdens of every member of the Philippine Bar, for they have been given full expression in the Lawyer’s Oath that every lawyer of this country has

taken upon admission as a bona fide member of the Law Profession, thus:chanroblesvirtuallawlibrary I, __________________________, do solemnly swear that I will maintain allegiance to the Republic of the Philippines; I will support its Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein; I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same. I will delay no man for money or malice, and will conduct myself as a lawyer according to the best of my knowledge and discretion with all good fidelity as well to the courts as to my clients; and I impose upon myself this voluntary obligation without any mental reservation or purpose of evasion. So help me God. (Emphasis supplied)

By the Lawyer’s Oath is every lawyer enjoined not only to obey the laws of the land but also to refrain from doing any falsehood in or out of court or from consenting to the doing of any in court, and to conduct himself according to the best of his knowledge and discretion with all good fidelity as well to the courts as to his clients. Every lawyer is a servant of the Law, and has to observe and maintain the rule of law as well as be an exemplar worthy of emulation by others.42 It is by no means a coincidence, therefore, that honesty, integrity and trustworthiness are emphatically reiterated by the Code of Professional Responsibility, to wit:chanroblesvirtuallawlibrary Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the doing of any in Court; nor shall he mislead, or allow the Court to be misled by any artifice. Rule 11.02 - A lawyer shall punctually appear at court hearings. Rule 18.04 - A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to client’s request for information.

Atty. Abellana abjectly failed the expectations of honesty, integrity and trustworthiness in his dealings with Samonte as the client, and with the RTC as the trial court. He resorted to outright falsification by superimposing “0” on “4” in order to mislead Samonte into believing that he had already filed the complaint in court on June 10, 1988 as promised, instead of on June 14, 1988, the date when he had actually done so. His explanation that Samonte was himself the cause of the belated filing on account of his inability to remit the correct amount of filing fees and his acceptance fees by June 10, 1988, as agreed upon, did not excuse the falsification, because his falsification was not rendered less dishonest and less corrupt by whatever reasons for filing at the later date. He ought to remember that honesty and integrity were of far greater value for him as a member of the Law Profession than his transactions with his client.

Atty. Abellana’s perfidy towards Samonte did not stop there. He continued misleading Samonte in explaining his mishandling of the latter’s civil case. Worse, he also foisted his dishonesty on the Court no less. To counter Samonte’s accusation about his not filing the reply in the civil case, he knowingly submitted two documents as annexes of his comment during the investigation by the IBP, and represented said documents to have been part of the records of the case in the RTC. His intention in doing so was to enhance his defense against the administrative charge. But the two documents turned out to be forged and spurious, and his forgery came to be exposed because the rubber stamp marks the documents bore were not the official marks of the RTC’s, as borne out by the specimens of the official rubber stamp of Branch 5 of the RTC duly certified by Atty. Geronimo V. Nazareth, the Branch Clerk of Court.43 He defended his dishonesty by lamely claiming that “court personnel were authorized to accept filing of pleadings even without the usual rubber stamp.”44 In these acts, he manifested his great disrespect towards both the Court and his client. The finding on Atty. Abellana’s neglect in the handling of Samonte’s case was entirely warranted. He admitted being tardy in attending the hearings of the civil case. He filed the formal offer of evidence in behalf of his client way beyond the period to do so, a fact that he could not deny because the RTC Judge had himself expressly noted the belated filing in the order issued in the case. Atty. Abellana was fortunate that the RTC Judge exhibited some tolerance and liberality by still admitting the belated offer of evidence in the interest of justice. In the motion for reconsideration that he filed in the IBP Board of Governors, Atty. Abellana challenged the sufficiency of the proof presented against him by Samonte, contending that such proof had consisted of merely hearsay and self-serving evidence. The contention of Atty. Abellana is bereft of substance. In disciplinary proceedings against lawyers, clearly preponderant evidence is required to overcome the presumption of innocence in favor of the respondent lawyers. Preponderant evidence means that the evidence adduced by one side is, as a whole, superior to or has greater weight than that of the other.45 In order to determine if the evidence of one party is greater than that of the other, Section 1, Rule 133 of the Rules of Court instructs that the court may consider the following, namely: (a) all the facts and circumstances of the case; (b) the witnesses’ manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony; (c) the witnesses’ interest or want of interest, and also their personal credibility so far as the same may ultimately appear in the trial; and (d) the number of witnesses, although it does not mean that preponderance is necessarily with the greater number. The complainant’s evidence preponderantly established the administrative sins of Atty.

Abellana. To start with, Atty. Abellana admitted superimposing the “0” on “4” but justified himself by claiming that he had done so only because the complainant had not given to him the correct amount of filing fees required. Secondly, Atty. Abellana filed a spurious document by making it appear as one actually filed in court by using a fake rubber stamp. His misdeed was exposed because the rubber stamp imprint on his document was different from that of the official rubber stamp of the trial court. He defended himself by stating that court personnel accepted papers filed in the court without necessarily using the official rubber stamp of the court. He well knew, of course, that such statement did not fully justify his misdeed. Thirdly, Atty. Abellana did not present any proof of his alleged filings, like certified copies of the papers supposedly filed in court. His omission to prove his allegation on the filings conceded that he did not really file them. And, lastly, Atty. Abellana misrepresented the papers he had supposedly filed by stating that he was attaching them as Annex 8 and Annex 9 of his comment, but Annex 8 and Annex 9 turned out to be papers different from those he represented them to be. Disciplinary proceedings against lawyers are designed to ensure that whoever is granted the privilege to practice law in this country should remain faithful to the Lawyer’s Oath. Only thereby can lawyers preserve their fitness to remain as members of the Law Profession. Any resort to falsehood or deception, including adopting artifices to cover up one’s misdeeds committed against clients and the rest of the trusting public, evinces an unworthiness to continue enjoying the privilege to practice law and highlights the unfitness to remain a member of the Law Profession. It deserves for the guilty lawyer stem disciplinary sanctions. The falsehoods committed by Atty. Abellana, being aimed at misleading his client and the Court to bolster his unworthy denial of his neglect in the handling of the client's case, were unmitigated. Still, the Court must not close its eyes to the fact that Atty. Abellana actually finished presenting his client's case; and that the latter initiated the termination of Atty. Abellana's engagement as his counsel only after their relationship had been tainted with mistrust. Thus, we determine the proper sanction. In Maligaya v. Doronilla, Jr.,46 the respondent lawyer was suspended for two months from the practice of law for representing in court that the complainant had agreed to withdraw the lawsuit when in truth the complainant had made no such agreement. The respondent admitted the falsity of his representation, but gave as an excuse his intention to amicably settle the case. In Molina v. Magat,47 the respondent had invoked double jeopardy in behalf of his client by stating that the complainant had filed a similar case of slight physical injuries in another court, but his invocation was false because no other case had been actually filed. He was suspended from the practice of law for six months for making the false and untruthful statement in court. For Atty. Abellana, therefore, suspension from the practice of law for six months with warning of a more severe sanction upon a repetition suffices. ACCORDINGLY, the Court AFFIRMS the Resolution dated June 22, 2013 of the Integrated Bar of the Philippines Board of Governors subject to the MODIFICATION that

Atty. Gines N. Abellana is SUSPENDED FOR SIX (6) MONTHS FROM THE PRACTICE OF LAW effective upon receipt of this decision, with the stern warning that any repetition by him of the same or similar acts will be punished more severely. Let a copy of this decision be entered in the personal records of Atty. Gines N. Abellana as a member of the Philippine Bar, and copies furnished to the Office of the Bar Confidant, the Integrated Bar of the Philippines, and the Office of the Court Administrator for proper dissemination to all courts in the country. SO ORDERED. Sereno, C.J., Leonardo-De Castro, Villarama, Jr., and Reyes, JJ., concur.

Republic of the Philippines SUPREME COURT Baguio City

presided; and, that every time an audit team of the OCA visits Iligan, Lanao del Norte and Marawi City, Judge Flores would meet them at the airport, act as their driver, entertain them and even give presents for their return to Manila.3

EN BANC

In addition, "John Hancock" alleged that Judge Flores demands ₱5,000.00 for special proceedings and notarial commissions; that he maintains the services of four non-court personnel who regularly reported to him and acted as his errand boys, bag-men, personal security and drinking buddies; and if Judge Flores is not with his mistress in Cagayan de Oro City or Ozamis City, he is having drinking sprees from 3 p.m. until 7 or 8 p.m. with his errand boys at "Randy's Place" in Tubod, Lanao del Norte. Judge Flores also allegedly claims to be protected by one of the associate justices of the Supreme Court (SC) who is a former Free Legal Assistance Group lawyer, and by a "Lawyer-Administrator" who is assigned in Lanao del Norte.4

A.M. No. RTJ-12-2325 April 14, 2015 (Formerly A.M. No. 12-7-132-RTC) OFFICE OF THE COURT ADMINISTRATOR, Complainant, vs. JUDGE ALAN L. FLORES, PRESIDING JUDGE, REGIONAL TRIAL COURT, BRANCH 7, TUBOD, LANAO DEL NORTE AND FORMER ACTING PRESIDING JUDGE, REGIONAL TRIAL COURT, BRANCH 21, KAPATAGAN, LANAO DEL NORTE, Respondent. x-----------------------x A.M. OCA IPI No. 11-3649-RTJ PROSECUTOR DIOSDADO D. CABRERA, Complainant, vs. JUDGE ALAN L. FLORES, PRESIDING JUDGE, REGIONAL TRIAL COURT, BRANCH 7, TUBOD, LANAO DEL NORTE AND FORMER ACTING PRESIDING JUDGE, REGIONAL TRIAL COURT, BRANCH 21, KAPATAGAN, LANAO DEL NORTE, Respondent. DECISION Per Curiam: Before the Court are two consolidated administrative cases, A.M. No. RTJ-12-2325 (Formerly A.M. No. 12-7-132-RTC) and A.M. OCA IPI No. 11-3649-RTJ, filed against Judge Alan L. Flores (Judge Flores). A.M. No. RTJ-12-2325 (Formerly A.M. No. 12-7-132-RTC) This administrative case originated from an investigation conducted by the Office of the Court Administrator (OCA) pursuant to two anonymous letters alleging certain irregularities being committed by Judge Flores. The first letter dated April 28, 2011 was received on May 10, 2011 by the OCA and sent by a certain "John Hancock"1 while the other was received on June 15, 2011 and sent by "Concerned Citizens."2 Both letters accused Judge Flores of rendering favorable judgments in exchange for monetary consideration; of taking cognizance of, and deciding cases on annulment of marriage even if said cases were beyond the territorial jurisdiction of the courts he

Acting on these anonymous letters, the Court, in a Resolution dated June 7, 2011, approved OCA's request for an audit team (OCA team) to conduct an investigation and inspection of the pending and decided cases in the Regional Trial Court (RTC) of Tubod, Lanao del Norte, Branch 7, where Judge Flores is the presiding judge, and RTC of Kapatagan, Lanao del Norte, Branch 21, where Judge Flores presided in an acting capacity. The authority included an "on-the-spot" investigation/examination of any available document in other government offices which may have direct connection with the charges.5 OCA INVESTIGATION REPORT After conducting its investigation from June 27, 2011 to July 8, 2011, the OCA team submitted its report dated September 12, 20116 with the following findings and observations regarding the active/pending and decided cases before the trial courts presided by Judge Flores: RTC of Tubod, Lanao del Norte, Branch 7 I. In the following active/pending cases for declaration of nullity of marriage,7 the OCA team noted an apparent disregard of A.M. No. 02-11-10-SC or the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, as amended: 1) In Salvador v. Salvador(CC No. 07-659) filed on October 23, 2009, the petitioner alleged that heresides at "Titunod, Purok-1, Kolambugan, Lanao del Norte." Per return of subpoena, however, the petitioner could not be found at the given address. During cross examination, petitioner claimed that he has been residing in a rented house in Kolambugan, Lanao del Norte for almost 20 years but he exercises his right of suffrage in Cagayan de Oro City. He also does not know the name of his landlord;8

2) In Amba v. Amba(CC No. 07-668) filed on March 7, 2011, the petitioner used a "care of" address (c/o BENITO "BOYET" MEGRINIO, Purok 4 Bag-ong Dawis, Baroy, Lanao del Norte, Philippines). In an Investigation Report dated July 26, 2010, Prosecutor Emelita Go (Prosecutor Go) reported that the petitioner admitted that she still works as a school teacher in Iligan City and "when she retires, she will live in Bag-ong Dawis, Baroy, Lanao del Norte;"9 3) In Neri v. Neri(CC No. 07-673) filed on April 17, 2010, the petitioner declared that she is a resident of "Purok 3, Bag-ong Dawis, Baroy, Lanao del Norte." During direct and cross-examination, the petitioner testified that she is a resident of Bag-ong Dawis, Tubod, Lanao del Norte. Prosecutor Diosdado Cabrera (Prosecutor Cabrera), being a resident of Tubod since birth, claimed that no "Barangay Bag-ong Dawis" exists in the Municipality of Tubod;10 4) In Dabuet v. Dabuet, Jr. (CC No. 07-674) filed on April 7, 2010, the petitioner alleged that she resides at "Mukas, Kolambugan, Lanao del Norte," while her husband lives at Corrales Dolores Corner, Fernandez Street, Cagayan de Oro City. During crossexamination, the petitioner testified that the signature appearing on the summons purportedly signed and received by her husband is not his signature; hence, Prosecutor Cabrera manifested that there appears to be no proper service of summons on the respondent but Judge Flores failed to act on the matter;11 5) In Maybituin v. DayananMaybituin (CC No. 07-684) filed on July 8, 2010, the petitioner declared that he is a resident of "Poblacion, Baroy, Lanao del Norte;" however, in his Employment Contract dated March 23, 2010, the petitioner's residence was 1162 Purok Roadside, Suarez, Iligan City. Even on the assumption that he became a resident of Baroy, Lanao del Norte after March 23, 2010, the petitioner still lacked the requisite "six months residency" at the time the case was filed on July 8, 2010. Consequently, the case should have been dismissed for lack of jurisdiction.12 The OCA team made similar observations of violation of the rule on venue in Benitez v. Benitez (CC No. 07-686),13Narvasa v. Narvasa (CC No. 07-688),14 Emborong v. Ornopia (CC No. 07-692),15 Cangcolcol v. La Viña (CC No. 07-694),16 and Mancia v. Mancia (CC No. 07-697).17 II. The following cases on declaration of nullity of marriage,18 meanwhile, were resolved by Judge Flores within six (6) months to one (1) year and seven (7) months from the date of filing. The OCA team also noted similar violations of the rule on venue: 1) In Placibe v. Placibe(CC No. 07-606) filed on March 23, 2007, the petitioner's address is "c/o Arsenia Ybañez, Mukas, Kolambugan, Lanao del Norte" and that the respondent's residence is at Tolosan, Balingasag, Misamis Oriental. Prosecutor Cabrera, however, reported that both parties are residents of Balingasag, Misamis Oriental and recommended the dismissal of the petition since the petitioner admitted the foregoing fact in the course of his investigation. Despite this, Judge Flores set aside Prosecutor Cabrera's report

because according to him, the role of the prosecutor in the investigation is only to determine if collusion exists between the parties, or if the evidence is being suppressed. The petition was granted after one (1) year and seven (7) months from its filing;19 2) In Eusebio v. Eusebio(CC No. 07-626) filed on September 17, 2008, the petitioner declared her address as "Poblacion, Tubod, Lanao del Norte" but "she can be served with notices and other court processes at the residence of her parents in Ronquillo Obina's residence, Purok 2, Camague, Tomas Cabili, Iligan City." The respondent also stated that the petitioner is not a resident of Tubod, Lanao del Norte. Judge Flores granted the petition after only ten (10) months from filing;20 3) In Mante v. Mante(CC No. 07-594) filed on August 16, 2006, the petitioner declared his address as "Brgy. Poblacion, Kolambugan, Lanao del Norte, c/o Sanny Sy" and that the respondent resides in Catagbacan Sur, Loon, Bohol. Their marriage certificate, however, stated that they were both residents of Catagbacan Sur, Loon, Bohol. Moreover, the officer's return of service of subpoena stated that "subject person cannot be found x x x." Prosecutor Cabrera filed a manifestation asking for the dismissal of the case on the ground that none of the parties are residing within the territorial jurisdiction of the court. Judge Flores, nevertheless, granted the petition after one (1) year and seven (7) months from its filing.21 Similar cases were also noted by the OCA team to have been decided by Judge Flores in disregard of the rule on venue, namely: (1) Patuasic v. Patuasic (CC No. 07-658),22 (2) Obsioma v. Obsioma (CC No. 07-653),23 (3) Tablason v. Tablason (CC No. 07-647),24 (4) Patana v. Patana (CC No. 07-646),25 (5) Amper v. Amper (CC No. 07-671),26 (6) Carreon v. Carreon (CC No. 07-612),27 (7) Labunog-Catambacan v. Catambacan (CC No. 07634),28 (8) McFarlane v. Mc Farlane (CC No. 07-678),29 (9) Del Rosario v. Del Rosario(CC No. 07-675),30 (10) Emano v. Emano (CC No. 07-611),31 (11) Dela Cruz v. Saldivar (CC No. 07-635),32 (12) Alcopra v. Salazar(CC No. 07-681),33 (13) Caidic v. Caidic (CC No. 07685),34 and (14) Musni v. Musni (CC No. 07-644).35 III. In Gallibot v. Gallibot(SPL. PROC. No. 194-07-2009), a petition for judicial declaration of presumptive death based on Article 41 of the Family Code filed on November 13, 2009, the residential address of the petitioner - Pantalan, Tubod, Lanao del Norte - was nonexistent; yet, Judge Flores granted the petition after four (4) months from filing.36 IV. Criminal cases with incidents that were resolved by Judge Flores beyond the reglementary period, and those with incidents that remain pending even after the reglementary period to resolve has already lapsed,37 to wit: 1) In People v. Pinuti, Jr.(CR No. 270-07-2006 for Attempted Rape), a motion for early resolution of the motion to dismiss was filed by the accused on January 10,2008 and was granted on January 11, 2008. The motion to dismiss was resolved only on February 23, 2009 or one (1) year and one (1) month from January 11, 2008;38

2) In People v. Rivera, et al.(CR No. 322-07-2006 for Robbery by Use of Force Upon Things), the motion to dismiss was resolved after one (1) year and six (6) months from the date the Comment thereon was filed;39

II. Cases where Atty. Bernardino Bering, Clerk of Court VI, RTC of Kapatagan, Lanao del Norte, Branch 21, allegedly usurped the function of a judge by issuing orders during preliminary conference:48

3) In People v. Gomera and Alfafara (CR No. 358-07-2006 for Violation of Presidential Decree No. 705, as amended), the demurrer to evidence (including the opposition and comment) remains pending from January 25, 2010 up to the time the OCA team conducted the investigation, or a delay of more than one (1) year and five (5) months; 40

1) Lim v. Undag, et al., CC No. 21-322 for Sum of Money etc., Order dated May 9, 2011;

4) In People v. Mautin, et al. (CR No. 569-07-2008 for Qualified Theft), the resolution of the motion for reconsideration was delayed by about five (5) months, while the notice of appeal was resolved after one (1) year and four (4) months;41 5) In People v. Pasanting (CR No. 763-07-2010 for Homicide), the resolution of the motion for reconsideration was delayed by about eight (8) months while the notice of appeal was resolved after one (1) year and four (4) months;42 6) In People v. Guigue and Clerigo (CR No. 773-07-2010 for Violation of Section 3(e) of the Republic Act [R.A.] No. 3019), the motion to dismiss was resolved after seven (7) months;43 7) In People v. Buale(CR No. 363-07-2006 and CR No. 526-07-2008 for Violation of Sections 12 and 15 of Article II of the R.A. No. 9165), the motion for reconsideration remains unresolved since November 26, 2010 up to the time the OCA team arrived in the RTC of Tubod, Lanao del Norte, Branch 7, ora delay of more than seven (7) months.44 RTC of Kapatagan, Lanao del Norte, Branch 21 I. Pending/active cases where the rule on venue may have also been violated:45 1) In Southey v. Palmes(CC No. 21-350) filed on February 16, 2010, evidence showed that the petitioner's real address is Manolo Fortich, Bukidnon and not Taguitic, Kapatagan, Lanao del Norte. Judge Flores, however, disregarded this in favor of an unnotarized lease contract and denied the respondent's motion to dismiss. The OCA team also interviewed Sabina Alta, the purported landlady of the petitioner, and she categorically stated that the petitioner never resided nor brought any personal belongings inside her house; 46 2) In Rocamora v. Rocamora(CC No. 21-365) filed on July 1, 2010, the case should have been dismissed outright based on the prosecutor's first report since the petitioner used a "care of" address; however, Judge Flores set aside the report because according to him, the role of the prosecutor in the investigation is only to determine if collusion exists between the parties, or if the evidence is being suppressed.47

2) Cartin v. Cartin, CC No. 21-372 for Annulment of Marriage, Order dated July 13, 2011; 3) Rocamora v. Rocamora, CC No. 21-365 for Nullity of Marriage, Order dated May 12, 2011; 4) Heirs of Basiao, et al. v. Heirs of Abadies,Sr., CC No. 21-366 for Recovery of Possession, Order dated January 24, 2011; 5) Albano v. Damalerio, et al., CC No. 21-363 for Sum of Money, Orders dated June 27, 2011 and April 25, 2011; 6) Gonzaga v. Papalid, CC No. 21-356 for Recovery of Possession and Ownership, Order dated June 27, 2011; 7) Tormis, Jr., et al. v. Tormis, CC No. 21-354 for Judicial Partition, Order dated June 13, 2011; 8) Heirs of Opada, Sr. v. Sison, et al., CC No. 21-344 for Partition, Order dated March 21, 2011;,/p> 9) Jasmin, et al. v. Jasmin and Tagalogon, CC No. 21-269 for Recovery of Ownership, Order dated March 21, 2011; 10) Heirs of Polbos v. Sps. Polbos, CC No. 21-280 for Recovery of Possession and Ownership, Order dated June 6, 2011. Consequently, the OCA submitted to the Court a Memorandum49 dated May 31, 2012. The OCA agreed with the observations of the OCA team that the practices in Branches 7 and 21 presided by Judge Flores were "patently inconsistent and contrary to the Rules of Court, especially in A.M. No. 02-11-10-SC,"50 and recommended that: 1. The OCA Investigation Report dated 12 September 2011 be DOCKETED as a formal administrative complaint against Judge Alan L. Flores, Regional Trial Court, Branch 7, Tubod, Lanao del Norte and CONSOLIDATED with A.M. OCA IPI No. 11-3649-RTJ entitled "Prosecutor Diosdado D. Cabrera vs. Judge Alan L. Flores;" 2. Judge Alan L. Flores be IMMEDIATELY placed under PREVENTIVE SUSPENSION from the service, pending final resolution of herein administrative cases or until further orders from the Supreme Court;

3. Judge Alan L. Flores be found GUILTY of Gross Ignorance of the Law and Gross Misconduct and be DISMISSED from the service, with forfeiture of all retirement benefits and privileges, with prejudice to reinstatement in any branch of government service, including government-owned and controlled agencies or corporations: a. for acting and taking cognizance of the following nullity of marriage cases in violation of A.M. No. 02-11-10-SC, as amended, wherein the petitioners used the abbreviation "c/o"(care of) in their addresses in their respective petitions: Civil Cases (still active) Nos. 07-668; 07-688 and 21-365; b. for acting and taking cognizance of Civil Case No. 07-684 and 07-686, for nullity of marriage, despite the fact that petitioner failed to comply with the requisite six (6) months residency under the rule; c. for deciding the following nullity of marriage cases in favor of petitioners, even if they used the abbreviation "c/o" in their respective addresses: Civil Case Nos. 07-606; 07-594; 07-658; 07-653; 07-635; and 07-644; d. for failing to make a judicious assessment of the allegations contained in the petitions for declaration of nullity of marriage and annulment of marriage (which are still active/pending in the respective court dockets), particularly with respect to the addresses of petitioners, even if there are documentary and/or testimonial evidence that attest to the fact that the petitioners are actually residents of places outside the territorial jurisdiction of his courts, to wit: Civil Case Nos. 07-659; 07-673; 07-692; 07-697 and 21-350; e. for deciding the following nullity of marriage and annulment of marriage cases in favor of petitioners even if there are documentary and testimonial evidence that they are not actually residents of the place they alleged in their respective petitions, to wit: Civil Case [Nos.] 07-626;07-647; 07-646; 07-671; 07-612; 07-634; 07-678; 07-675; 07-611; 07681 and 07-685; and f. for deciding the case of "Daisy L. Gallibot vs. Dedios T. Gallibot" for Judicial Declaration of Presumptive Death, docketed as Spl. Proc. No. 194-07-2009, in favor of petitioner even if petitioner failed to establish her residency in Tubod, Lanao del Norte. 4. Judge Alan L. Flores be found GUILTY of Undue Delay in Rendering an Order in the following seven (7) criminal cases and be FINED in the maximum amount of Twenty Thousand Pesos (Php 20,000.00), to wit: x x x x 5. Atty. Bernardino M. Bering, Clerk of Court VI, RTC, Branch 21, Kapatagan, Lanao del Norte, be DIRECTED to SHOW CAUSE, within ten (10) days from notice, why no administrative sanction should be imposed upon him for usurping the function of a judge when he issued orders during the respective preliminary conferences in the following ten

(10) civil cases: Civil Case Nos. 21-322; 21-372; 21-365; 21-366; 21-363; 21-356; 21354; 21-344; 21-269; and 21-280; and 6. Atty. Bernardino M. Bering be DIRECTED to ensure that each case record/rollo in RTC, Br. 21, Kapatagan, Lanao del Norte is properly stitched.51 (Citations omitted) A.M. OCA IPI No. 11-3649-RTJ While the OCA team was conducting its investigation, they were informed by Prosecutor Cabrera, who was then assigned to handle the cases in Branch 7, that he filed an affidavitcomplaint against Judge Flores, which was docketed as A.M. OCA IPI No. 11-3649-RTJ. Prosecutor Cabrera's Affidavit-Complaint52 dated April 29, 2011 was endorsed53 by the Sangguniang Panlalawigan of Lanao del Norte. Particularly, Prosecutor Cabrera charged Judge Flores with violating the provisions of SC Administrative Circular No. 23-9554 dated October 11, 1995 when he failed to timely resolve several incidents in Criminal Cases Nos. 270-07-2006 and 322-072006.55 Prosecutor Cabrera also claimed that Judge Flores neglected to resolve incidents in eight criminal cases,56 which were then pending in his sala, and that he rendered favorable decisions in numerous petitions for Declaration of Nullity of Marriage in exchange for monetary consideration even if the parties reside in areas outside the territorial jurisdiction of his courts.57 It was also alleged that he maintained the services of Oscar Flores (Oscar), Gedeon Catedral (Gedeon),58 Mario Capalac and Jeter Flores (Jeter) who served as his driver, unofficial security guards and bribe collectors.59 Judge Flores filed a Comment60 dated June 17, 2011, alleging, among others, that Prosecutor Cabrera has an "attitude problem" and that he has an inclination to indiscriminately file cases against anyone who incurs his displeasure. He also admitted that there was delay in the resolution of pending incidents but this was due to the heavy caseload of Branches 7 and 21, and that he already issued several orders and resolutions in June 2011 to address these. Judge Flores clarified that he only inherited the petitions for declaration of nullity of marriage from the previous presiding judge of Branch 21. Nevertheless, he claimed that the rule on declaration of absolute nullity of marriage does not require a judge to verify the exact address of the parties, and that the prosecutor is in a better position to verify the veracity of the parties' statements. In a Memorandum61 dated June 8, 2012, the OCA found merit in Prosecutor Cabrera's administrative complaint and recommended that: 1. [T]he instant administrative matter be RE-DOCKETED as a regular administrative matter; and 2. Judge Alan L. Flores, Regional Trial Court, Branch 7, Tubod, Lanao del Norte be found GUILTY of incompetence and inefficiency and be FINED the amount of ₱20,000.00.62

On July 10, 2012, the Court issued a Resolution,63 which reads: (a) RE-DOCKET this matter as A.M. No. RTJ-12-2325 (Office of the Court Administrator vs. Judge Alan L. Flores, RTC, Branch 7, Tubod, Lanao del Norte) and CONSOLIDATE with A.M. OCA IPI No. 11-3649-RTJ (Prosecutor Diosdado D. Cabrera v. Judge Alan L. Flores); (b) PREVENTIVELY SUSPEND Judge Flores pending final resolution of above-consolidated administrative complaints, effective immediately and until further orders from this Court; (c) REQUIRE Atty. Bernardino M. Bering, Clerk of Court VI, RTC, Branch 21, Kapatagan, Lanao del Norte, to SHOW CAUSE, within ten (10) days from notice hereof, why no administrative sanction should be imposed upon him for usurping the functions of a judge when he issued orders during the respective preliminary conferences in the following ten (10) civil cases: Civil Case Nos. 21-322, 21-372, 21-365, 21-366, 21-363, 21-356, 21354, 21-344, 21-269 and 21-280; and (d) DIRECT Atty. Bering to ensure that each case record/rollo in the RTC, Branch 21, Kapatagan, Lanao del Norte is properly stitched. x x x The Court further Resolved to REFER the subject administrative complaints to Executive Justice Romulo V. Borja of the COURT OF APPEALS-CAGAYAN DE ORO CITY for assignment to one of the Justices therein, and then, for investigation, report and recommendation on the complaints, all within ninety (90) days from notice hereof. x x x64 In his Comment65 dated November 5, 2012, Judge Flores contended that the allegations in the letters are unfounded and are mere attempts to put him in a bad light, especially since the letters are not supported by "public records of indubitable integrity."66 The cases before his courts are decided based on the merits and the evidence presented and that only those required by law on notarial commissions and special proceedings are charged with a 5,000.00 fee and its collection is the responsibility of the Office of the Clerk of Court. Further, the people who come to his court are accorded with utmost respect and consideration. Finally, he denied the accusations that he keeps a mistress; that he engages in a habitual drinking spree; and that he entertains OCA teams in an excessive and lavish fashion whenever they visit his sala. INVESTIGATION OF THE COURT OF APPEALS The Court of Appeals-Mindanao Station (CA) received the evidence for the complainants, which consisted of documents67 and the testimonies of Prosecutor Cabrera, Ricardo Dayak, Sr. (Dayak), Atty. Dorothea Saligan-Basalo (Atty. Saligan-Basalo) and Randy Nadusa Quijano (Quijano).68 Prosecutor Cabrera, in addition to the allegations in his complaint, testified that in Tablason v. Tablason (CC No. 07-647), the Prosecutor's Office, through Prosecutor Go,

declared that the venue was improperly laid; however, per Order dated September 17, 2009, Judge Flores pronounced that, "[t]he determination of compliance of residence is addressed to the Court and not the Investigating Prosecutor whose determination is that of collusion of the parties or the evidence is suppressed. Whether she is an actual [resident] of Tubod, Lanao del Norte could be threshed out in due time when [the] petitioner presents her evidence."69 According to Prosecutor Cabrera, there were many instances when the actual residence of the parties were discovered during trial but Judge Flores ignored these and did not even issue a show cause order requiring the parties to explain why their respective petitions should not be dismissed. Worse, the latter even asked leading questions in order to remedy said procedural flaw. Prosecutor Cabrera added that since 2004, a total of 96cases for annulment of marriage and declaration of nullity of marriage have been filed in Branch 7, while 17 similar cases were filed in Branch 21 since Judge Flores became its acting judge in December 2009.70 On cross-examination, Prosecutor Cabrera admitted that the Prosecutor's Office neither moved for reconsideration nor appealed Judge Flores' decisions in these cases because it was not authorized by the Office of the Solicitor General (OSG) to do so. He also admitted that he did not call the attention of the OSG on the perceived irregularities in these cases. He asserted, however, that he rigorously cross-examined the petitioners, and in fact, some of them candidly admitted before the court that they are not residing within the territorial jurisdiction of Branch 7. Nevertheless, Prosecutor Cabrera also admitted that he did not file any motion to have the petitioners cited for contempt, or move for the dismissal of the petitions or any similar action, as he sensed that Judge Flores was actually helping some of the petitioners.71 Dayak, meanwhile, testified72 that Judge Flores extracted money from him in exchange for a favorable judgment in his son's cases, which were then pending trial before his court. According to Dayak, he purposely sought audience with Judge Flores sometime in 2004 at the residence of Mr. and Mrs. Romeo Bringuela (Spouses Bringuela) in Limot Village, Poblacion, Tubod, Lanao del Norte where Judge Flores was temporarily residing. He told Judge Flores about the predicament of his son who was facing two criminal cases for violation of Sections 5 and 11 of Article II of R.A. No. 9165. Judge Flores assured him not to worry as long as he gives him ₱15,000.00. Despite his financial difficulties, Dayak gave the amount asked for. Thereafter, in one of their weekly drinking sessions some time in 2005, Judge Flores told him that he was about to decide the cases and he would be needing an additional amount of ₱15,000.00, which he gave. His son was eventually acquitted of the charges. He thanked Judge Flores for the favorable decision but the latter asked for another 15,000.00 as bonus but he failed to raise the same. When Oscar, Judge Flores' first cousin and allegedly one of his four errand boys, went to his house on behalf of Judge Flores to get the "bonus," he explained to Oscar his poor economic condition but the latter allegedly told him to personally reason with Judge Flores. When he went to speak with Judge Flores, he was immediately asked if he already brought the money -

telling him of the urgency to produce it as his birthday was already forthcoming. Judge Flores also instructed him to get a goat and a pig from Spouses Bringuela in Limot, and to bring them to his house in Iligan City. When Dayak brought them as instructed, he was initially relieved to find that Judge Flores was not around as he feared that the latter might insist on the bonus he was asking, but as he was about to leave, Judge Flores arrived. Judge Flores then asked him, "Dala nimo [D]oy?" (Did you bring it [D]oy?). Dayak answered in the affirmative and pointed at the beasts. Judge Flores went fuming mad and in an angry voice said: "Animal ka [D]oy! Peste ka! Yaw aka! Gibuangan ka nako? Bantay lang nang imong anak. Magmahay ra jug ka!" (You're a son of a bitch! You are a pest! You are a devil! Are you fooling me? Watch out for your son. You will really regret!) 73 For her part, Atty. Saligan-Basalo stated that since her admission to the Philippine Bar in 2007, she has been engaged in private practice. She usually charges ₱30,000.00 acceptance fee and ₱1,000.00 per court appearance. Her office is in Tubod, Lanao del Norte and as such, her practice is generally confined to cases falling within the jurisdiction of Branches 7 and 21. She handles cases of declaration of nullity of marriage, among others.74 Atty. Saligan-Basalo testified that in Estrada v. Estrada (CC No. 07-693), her services were personally engaged by Judge Flores on behalf of the petitioner. She recalled that before the start of a hearing, Judge Flores summoned her to the staff room where Haylane Estrada (Haylane) who had a pending case for annulment of marriage was introduced to her. He asked her to handle the petition for an acceptance fee of ₱20,000.00 without, however, mentioning anything about her appearance fee. After Haylane left, Judge Flores asked her to join him in his chamber where he told her, "Mantiner lang ha, unhan ta ka ug ₱10,000.00" (Please bear with me, I will just give you an advance of ₱10,000.00.). Judge Flores later handed her the amount as advance, but she never received anymore the ₱10,000.00 remaining balance.75 During cross-examination, Atty. Saligan-Basalo stated that when she asked Haylane about the balance, the latter said, "Attorney, toa naman tanan ni Judge" (Attorney, the whole amount was already with Judge.), adding, "I gave him ₱80,000.00 because it's a package deal." Atty. Saligan-Basalo replied, "You better talk it up [with him] because I don't have anything to do with your transaction. What I get is only for my services." The respondent in Estradadid not participate in the proceeding, and the case was later decided by Judge Flores in favor of Haylane.76 The same thing happened in Aradas v. Aradas (CC No. 07-687), another case for declaration of nullity of marriage. Judge Flores introduced Atty. Saligan-Basalo to petitioner Benjamin Aradas (Benjamin), and asked her to handle his petition. When Atty. Saligan-Basalo interviewed Benjamin, the latter told her that the partial payment of her acceptance fee will be belatedly given to her. After a couple of days, an envelope containing ₱10,000.00 was left in her office. According to her staff, it came from a certain

Gideon Catedral, allegedly a personal aide of Judge Flores. Thinking of the Estrada case as a pattern, she presumed that it was the acceptance fee for the Aradas case.77 Atty. Saligan-Basalo further testified that she did not directly receive her acceptance fee from either Haylane or Benjamin, and neither did she dare refuse to handle said cases nor ask Judge Flores about the actual amount of acceptance fees for fear of jeopardizing her other cases pending in Branches 7 and 21. In the course of her cross-examination, Atty. Saligan-Basalo categorically stated that the acceptance fee in the Estrada case was personally handed to her by Judge Flores. She was also of the belief that the money intended for her acceptance fees in the cases of Estrada and Aradas were coursed through Judge Flores.78 Witness Quijano testified that Judge Flores and his errand boys Gedeon and Jeter made money out of the case of his brother-in-law, Monceslao Lizada (Lizada), who was charged with Murder before the RTC Branch 7, docketed as Criminal Case No. 07-1474. According to Quijano, Jeter approached him and inquired if he is related to Lizada. Upon knowing that Lizada is his brother-in-law, Jeter told him that the delay in the release of the accused can be avoided if he will personally talk to Judge Flores that afternoon at Little Randy's Store. Quijano agreed, but as Jeter was about to leave, the latter asked for ₱2,000.00, allegedly to be spent for lunch and a drinking session with Judge Flores. When he met with Judge Flores, the latter was with Gedeon, Jeter and Oscar. He immediately noticed the .380 calibre pistol on top of the table that Judge Flores occupied. Judge Flores immediately asked him if he cangive ₱50,000.00 in exchange for the release order of his brother-in-law but he replied that his family cannot afford it. They negotiated until the amount of ₱20,000.00 was agreed upon. As he was about to leave, Gedeon and Jeter followed him and asked him to add ₱5,000.00 for the two of them.79 Eager for Lizada's immediate release, Quijano's family pooled their resources, and in the morning of July30, 2012, Quijano and his elder sister went to Poblacion, Tubod, Lanao del Norte to deliver the money to Judge Flores. On their way, Jeter kept calling his mobile phone in order to monitor their arrival. Jeter also instructed him to pass by Branch 7 and to proceed in front of the San Isidro Labrador Church, which is more or less 50 meters away from the court, where Jeter and Gedeon will follow. It was Gedeon who personally received the ₱20,000.00intended for Judge Flores, and the ₱2,500.00 representing half of the ₱5,000.00 being asked by the two.80 The evidence in behalf of Judge Flores, meanwhile, consisted of documents, his own testimony and the testimonies of Oscar, Conrado Hingco, Jr. (Hingco), and Gedeon. Judge Flores stressed that as much as possible, he dutifully attended to all the cases before his sala and maintained his integrity in all proceedings. Judge Flores admitted that there was delay in the issuance of orders and court processes but this was due to the demands of the two courts he was handling. He denied the accusations of Dayak and Quijano, and although he admitted having heard of Dayak who was previously a public

official, he, nevertheless, denied personally meeting him. On the other hand, he has never seen Quijano prior to the proceedings in the instant case and he was not aware that his brother-in-law, if ever he had one, had a pending case before his court. He also denied handling and resolving cases on declaration of nullity of marriages for monetary consideration, claiming that he would never tarnish his name and the integrity of the court with such abominable act. On the issue of whether the courts he handled are the proper venues for said cases, he reiterated that he merely relied on the declarations in the concerned petitions as these were verified and sworn under oath by the petitioners and the court cannot go beyond such declarations. He further pointed out that since the public prosecutors are mandated to investigate on the existence of collusion between the parties, they are the ones who are in the position to properly examine the actual residence of the parties. It was Prosecutor Cabrera or any concerned prosecutor, for that matter, therefore, who should have filed the proper motion upon their determination that neither the petitioner nor the respondent resides within the territorial jurisdiction of his courts. Judge Flores claimed that it was only upon his receipt of Prosecutor Cabrera's complaint-affidavit that he learned of the defects in some of the addresses of the parties.81 Hingco, Deputy Sheriff of Branch 7, testified in behalf of Judge Flores and sought to controvert Prosecutor Cabrera's allegation that the service of summons in Dabuet v. Dabuet, Jr. (CC No. 07-674 for Declaration of Absolute Nullity of Marriage and Custody of Children) was invalid. Hingco stated in his judicial affidavit that on August 15, 2010, he served the summons, together with a copy of the petition, on respondent Percival Dabuet, Jr. (Percival). According to Hingco, the person who received the summons confirmed that he was the respondent in the case, and that he was even accompanied by one Eden, who, allegedly, is Percival's best friend. Hingco, however, admitted during cross-examination that he did not ask Percival for any document that could properly confirm his identity. Judge Flores eventually upheld the validity of the service of summons on the ground of presumption of regularity in the performance of an official function and granted the petition. No appeal was interposed therefrom and the same has long become final and executory.82 Gedeon sought to refute the allegations that Judge Flores demanded money from Quijano for the dismissal of the criminal case against the latter's brother-in-law, and that Judge Flores coursed the payment of Atty. Saligan-Basalo's acceptance fee in Aradas case through him. Essentially, Gedeon testified that: he has never met Quijano; he never accepted any money from him; and he has never contacted or gave any envelope containing money to a certain Atty. Saligan-Basalo.83 Oscar denied receiving any amount from Dayak that was intended for Judge Flores, or for the acquittal of Dayak's son. Neither was he ordered by Judge Flores to negotiate with Dayak. He alleged that he is not familiar with Dayak, and that he has never been to the latter's house. He does not know of any case filed against Dayak's son, and he has never talked to Dayak about it. Oscar also denied any drinking spree that happened at the

residence of Spouses Bringuela since Mrs. Bringuela, who happened to be his sister, is sickly and does not approve of such activity. He further averred that Dayak has never been to the residence of Spouses Bringuela.84 CONSOLIDATED REPORT OF THE CA In the Consolidated Report85 dated June 11, 2013, Investigating Justice Renato C. Francisco (Justice Francisco) found sufficient evidence to hold Judge Flores administratively liable for ignorance of the law, gross misconduct and undue delay in rendering decisions and orders. According to Justice Francisco, the "undisputed Investigation Report of the OCA" shows an alarming number of pending cases, as well as decided cases, where the actual residence of the parties are apparently not within the territorial jurisdiction of the courts presided by Judge Flores but these were disregarded, in violation of Section 4 of A.M. No. 02-11-10-SC, as amended. Moreover, Justice Francisco opined that in the petitions where "c/o" (care of) addresses were utilized, Judge Flores should have, at least, required the concerned parties to show cause why their respective petitions should not be dismissed, consistent with Re: Report on the Judicial Audit Conducted in the RTC, Branch 60, Barili, Cebu.86 There were also several instances when the public prosecutor recommended the dismissal of the cases on ground of improper venue but Judge Flores simply stated that the prosecutor's role in these cases is merely to determine if collusion exists between the parties, or if evidence is being suppressed. 87 Judge Flores' acts also cast suspicion of personal interest in the cases before his court. Specifically, in the cases for declaration of nullity of marriage, Judge Flores rendered judgment in record time despite the heavy case load he was claiming. Such suspicion was validated by Atty. Saligan-Basalo, Dayak and Quijano who were all credible witnesses. Justice Francisco concluded that the special interest shown by Judge Flores in these cases constitutes gross misconduct, which was aggravated by the fact that it resulted in the pendency of incidents in other cases and prejudiced the affected parties. Moreover, these serious imputations were merely denied by Judge Flores sans evidence and he failed to show any ill motive on the part of the witnesses. Thus, Justice Francisco recommended that Judge Flores should be held liable for gross ignorance of the law and gross misconduct, and, citing Re: Complaint of Dr. Virata against Judge Supnet,88 concurred with the recommendation of the OCA team that the penalty of dismissal should be imposed.89 As regards the allegation that Judge Flores unduly delayed the resolution of pending incidents in other cases, he admitted that there was indeed delay due to the heavy caseload of the courts he was handling. Finding that Judge Flores did not even ask the Court for an extension of time to resolve the said incidents, Justice Francisco agreed with the OCA team that Judge Flores should be held liable for said infraction.90 Accordingly, Justice Francisco recommended that:

1. Respondent Judge Alan Flores be held GUILTY of gross misconduct and gross ignorance of the law, and be DISMISSED from service with forfeiture of retirement benefits, except accrued leave credits, with prejudice to reemployment in any branch of the government nor any of its agencies or instrumentalities, including government-owned and controlled corporations; 2. For undue delay in rendering orders, respondent Judge Alan Flores be FINED in the amount of ₱20,000[.00]; and 3. The charge of usurpation of the judge's function against Atty. Bernardino Bering (raised by the OCA in its memorandum) be REFERRED to the Office of the Bar Confidant for appropriate action.91

Q: Where did you reside from 2006 to the present? A: Steel Town Q: Are you sure? A: But currently, sir, since I am managing the big company, and we are operating Kwarta Gram or Money gram, so, from time to time, I travel. But for now, since my case is going on, I am now renting here in Poblacion at Quibranza Building upstairs.

Ruling of the Court

Q: The court is constrained to ask you that question of which you stated that you are residing, from2006 to present at Steel Town, Iligan City despite of the fact that in your petition, you alleged that you are a resident at Lacson Residence, Tubod, Lanao del Norte. Have you ever resided in Tubod, Lanao del Norte for purposes of your petition?

The Court concurs with the findings and recommendation of the CA and the OCA.

A: Yes sir.

Gross Ignorance of the Law and Gross Misconduct

Q: When was that?

When a law or a rule is basic, a judge owes it to his office to simply apply the law. "Anything less is gross ignorance of the law."92

A: When the Pryce Company started its Kwarta Gram and Money Gram here in Tubod and that was last year.

In petitions for declaration of nullity of void marriages, the applicable rule is A.M. No. 0211-10-SC, as amended. In particular, Section 4 categorically states the venue where a petition shall be filed, to wit:

Q: In 2010?

SEC. 4.Venue. - The petition shall be filed in the Family Court of the province or city where the petitioner or the respondent has been residing for at least six months prior to the date of the filling, or in case of a non-resident respondent, where he may be found in the Philippines, at the election of the petitioner. x x x. (Emphasis ours) In this case, the OCA report is replete with findings showing that Judge Flores deliberately disregarded the foregoing rule. He continued to try and resolve cases despite glaring circumstances, which should have created doubt as to the veracity of the residential addresses declared in the petitions. Prosecutor Cabrera even actually brought these to the attention of Judge Flores but he was merely brushed aside. Worse, there were even instances when Judge Flores, during clarificatory questioning, knowingly led a party into curing the defect. Thus, in the Narvasa,93 the petitioner declared that she resides at c/o Lacson's Residence, Poblacion, Tubod, Lanao del Norte. During her crossexamination,94 however, she admitted that she actually resides in Steel Town, Sta. Elena, Iligan City. When Judge Flores propounded clarificatory questions, the petitioner ended up declaring that she resides in Quibranza Building, Tubod, Lanao del Norte - "for purposes of her petition," viz: Court

A: Yes your Honor.95 (Emphasis ours) Corollary to A.M. No. 02-11-10-SC, as amended, is Re: Report on the Judicial Audit Conducted in the RTC, Branch 60, Barili, Cebu,96 where the Court sustained the findings of the Court's audit team and concurred that the use of "c/o" (care of) addresses in petitions for nullity of marriage raises doubt as to the veracity of their actual residence. The undisputed OCA Investigation Report in the present consolidated cases showed an alarming number of pending and decided cases where the actual residence of the parties are obviously not within the territorial jurisdiction of the courts presided by Judge Flores but he nevertheless took cognizance of these cases without even making an inquiry as to their veracity. Judge Flores' incompetence became even more manifest when he curtailed the efforts of the public prosecutors in ensuring that the rule on proper venue will not be circumvented. As observed by the OCA team, Judge Flores almost always rejects the public prosecutors' recommendation of dismissal in their investigation report on the alleged reason that the role of the prosecutor is only to determine if collusion exists between the parties or if the evidence is being suppressed.97 Competence and diligence are prerequisites to the due performance of judicial office98 and every judge is required to observe the law.99 There is gross ignorance of the law when an error committed by the judge was gross or patent, deliberate or malicious, or when a judge ignores, contradicts or fails to apply settled law and jurisprudence because of bad faith, fraud, dishonesty or

corruption. In OCA v. Castañeda,100 the Court found the respondent guilty of gross ignorance of the law and procedure for her blatant disregard of the provisions of A.M. Nos. 02-11-10-SC and 02-11-11-SC, among others, and imposed the penalty of dismissal. The Court stated:

CANON 6 - COMPETENCE AND DILIGENCE ARE PRE-REQUISITES TO THE DUE PERFORMANCE OF JUDICIAL OFFICE.

No less than the Code of Judicial conduct mandates that a judge shall be faithful to the laws and maintain professional competence. Indeed, competence is a mark of a good judge. A judge must be acquainted with legal norms and precepts as well as with procedural rules. When a judge displays an utter lack of familiarity with the rules, he erodes the public's confidence in the competence of our courts. Such is gross ignorance of the law. One who accepts the exalted position of a judge owes the public and the court the duty to be proficient in the law.

Section 7. Judges shall not engage in conduct incompatible with the diligent discharge of judicial duties.

Unfamiliarity with the Rules of Court is a sign of incompetence. Basic rules of procedure must be at the palm of a judge's hands.101 The utter disregard shown by Judge Flores displays not only a lack of familiarity with the law but a gross ignorance thereof. What's more, Judge Flores rendered judgments in several cases for nullity of marriage in record time, which ranged from six (6) months to one (1) year and seven (7) months from the date of filing, despite his claim of being burdened by heavy caseload. According to Justice Francisco, this breeds a suspicion that Judge Flores has personal interest in some of the cases before him. Eventually, the suspicion took a foothold in the testimonies of Atty. Saligan-Basalo, Dayak and Quijano, who all bared the reasons for Judge Flores' unusual interest in the cases before him, thus making him liable, in turn, for Gross Misconduct. "Misconduct means intentional wrongdoing or deliberate violation of a rule of law or standard of behavior in connection with one's performance of official functions and duties. For grave or gross misconduct to exist, the judicial act complained of should be corrupt or inspired by the intention to violate the law, or a persistent disregard of well-known rules. The misconduct must imply wrongful intention and not a mere error of judgment."102 No less than the New Code of Judicial Conduct mandates a judge to conduct his office and personal demeanor with integrity, competence and diligence. CANON 2 - INTEGRITY IS ESSENTIAL NOT ONLY TO THE PROPER DISCHARGE OF THE JUDICIAL OFFICE, BUT ALSO TO THE PERSONAL DEMEANOR OF JUDGES. Section 1. Judges shall ensure that not only is their conduct above reproach, but that it is perceived to be so in the view of a reasonable observer. Section 2. The behavior and conduct of judges must reaffirm the people's faith in the integrity of the Judiciary. Justice must not merely be done but must also be seen to be done. xxxx

xxxx

The testimony of Atty. Saligan-Basalo disclosed that Judge Flores secured her legal services for several cases pending before his own sala. Atty. Saligan-Basalo, who is a private practitioner handling cases generally falling within the jurisdiction of the courts presided by Judge Flores, stated that Judge Flores obtained her services for the petitioners in the case of Estrada and Aradas. In Estrada, Judge Flores offered her an acceptance fee in the amount of ₱20,000.00 and she was compelled to accept the referral because she was wary of the other cases she handles that are pending in Judge Flores' courts. In Aradas, Atty. Saligan-Basalo received ₱10,000.00 as acceptance fee, but this time the money was delivered to her office by Gedeon. Meanwhile, both Dayak and Quijano testified that Judge Flores demanded and was given money for the favorable resolution of certain criminal cases where their relatives are the accused. According to Quijano, at the instance of Jeter, he transacted with Judge Flores for the early release of his brother-inlaw. On the other hand, Dayak stated that he personally approached Judge Flores for the acquittal of his son and in consideration thereof, the latter asked for money and was given a total amount of ₱30,000.00. Judge Flores, however, was not satisfied with the amount and asked for a "bonus" of ₱15,000.00. On top of that, Judge Flores also asked him to fetch a goat and pig for his birthday celebration, and when Dayak failed to deliver the "bonus", he was berated by Judge Flores, who uttered: "Animal ka Doy! Peste ka! Yaw aka! Gibuangan ka nako? Bantay lang nang imong anak. Magmahay ra jug ka!" Certainly, such conduct exhibited by Judge Flores not only was unbecoming of someone in his exalted position but degraded the judicial office and eroded public confidence in the Judiciary.103 The Court is not unmindful that the testimonies of Atty. Saligan-Basalo, Dayak and Quijano are not corroborated; however, owing to the private nature of the acts imputed against Judge Flores, it is not at all surprising that the statements of Atty. Saligan-Basalo, Dayak and Quijano will have to be taken on the basis of their credibility and the credibility of their testimonies vis-à-vis Judge Flores' counter-statements. In weighing their respective testimonies, Justice Francisco concluded that: Judge Flores x x x merely denied the said imputation without any evidence to support such denial. Settled is the rule that denial, if unsubstantiated by clear and convincing evidence, is a negative and self-serving evidence which deserves no weight in law and cannot be given greater evidentiary value over the testimony of a credible witness who testifies on affirmative matters. Besides, Judge Flores had not imputed any ill-motive to Atty. SaliganBasalo, Ricardo Dayak, Sr. and Randy Nadusa Quijano for testifying against him. It is also

settled that where there is no evidence that the witnesses were actuated by improper motive, the presumption is that they were not so actuated and their testimonies are entitled to full faith and credit. x x x.104 The Court finds no reason to deviate from the findings and analysis of Justice Francisco as they are well-supported by the records and the OCA investigation and report. Moreover, with regard to the credibility of Atty. Saligan-Basalo who primarily conducts her legal practice in the courts presided by Judge Flores, certainly, she would not have testified against him and risked earning his ire unless she was emboldened by some noble or deep personal conviction. Moreover, it did note scape the Court's attention that although Quijano pointed to Jeter as the one who initiated the transaction for the early release of his brother-in-law, Judge Flores did not present Jeter as a witness to controvert Quijano's claim. The rule is that findings of an investigating justice on the credibility of witnesses are generally given by this Court great weight by reason of their unmatched opportunity to see the deportment of the witnesses as they testified.105 Undue delay in rendering a decision or order Section 15(1) of Article VIII of the Constitution provides that judges must resolve all matters within three months from the date of submission. A matter is deemed submitted for resolution upon the filing of the last pleading.106 The OCA team uncovered several criminal cases where Judge Flores failed to resolve pending incidents within the prescribed period, to wit: (1) People v. Pinuti, Jr.(CR No. 27007-2006) where the motion to dismiss was resolved after a delay of one (1) year and one (1) month; (2) People v. Rivera, et al.(CR No. 322-07-2006) where the motion to dismiss was resolved after one (1) year and six (6) months from the date the Comment was filed; (3) People v. Gomera and Alfafara (CR No. 358-07-2006) where the demurrer to evidence has been pending for more than one (1) year and five (5) months; (4) People v. Mautin, et al. (CR No. 569-07-2008) where resolution of the motion for reconsideration was delayed for five (5) months and the notice of appeal, for one (1) year and four (4) months; (5) People v. Pasanting (CR No. 763-07-2010) where resolution of the motion for reconsideration was delayed by about eight (8) months while the notice of appeal was resolved after one (1) year and four (4) months; (6) People v. Guigue and Clerigo (CR No. 773-07-2010) where the motion to dismiss was resolved only after seven (7) months; and (7) People v. Buale (CR Nos. 363-07-2006 and 526-07-2008) where the motion for reconsideration remains unresolved since November 26, 2010 up to the time the OCA team arrived in RTC Branch 7, or a delay of more than seven (7) months.107 While Judge Flores admitted that there were indeed instances of delay and attributed them to the heavy caseload of the courts he was handling, as stated by Justice Francisco, his excuse can only be given short shrift since he could have asked the Court for extension of time to resolve said incidents, which he never did. The Court is not oblivious to the heavy caseload of trial courts and usually allows reasonable extensions of time. Given Judge

Flores' failure to ask for an extension to resolve the pending and due incidents before his courts, he is deemed to have incurred delay.108 The Court held in Tañoco v. Sagun, Jr.:109 Delay in case disposition is a major culprit in the erosion of public faith and confidence in the judiciary and the lowering of its standards. Failure to decide cases within the reglementary period, without strong and justifiable reasons, constitutes gross inefficiency warranting the imposition of administrative sanction on the defaulting judge.110 APPROPRIATE PENALTIES Gross Ignorance of the Law and Gross Misconduct Gross ignorance of the law or procedure and gross misconduct are both classified as serious charges under Section 8(9) of Rule 140 of the Rules of Court. Section 11 of the same Rule provides the imposable penalties for serious charges, as follows: SEC. 11.Sanctions. - A. If the respondent is guilty of a serious charge, any of the following sanctions may be imposed: 1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government- owned or controlled corporation: Provided, however, that the forfeiture of benefits shall in no case include accrued leave credits; 2. Suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months; or 3. A fine of more than ₱20,000.00 but not exceeding ₱40,000.00. xxxx The Court notes that this is not the first time that Judge Flores has been disciplinarily dealt with for gross ignorance of the law. In Efren T. Uy, Nelia B. Lee, Rodolfo L. Menes and Quinciano H. Lui v. Judge Alan L. Flores, Presiding Judge, RTC, Branch 7, Tubod, Lanao del Norte,111 Judge Flores was suspended by the Court for three (3) months and one (1) day without pay when he assumed jurisdiction over a Rule 65 petition questioning a reassignment order issued by the Commissioner of Internal Revenue, and failed to dismiss the same on the ground of failure to exhaust administrative remedies, among others. He was warned that similar acts in the future will be dealt with more severely. Given that Judge Flores' gross ignorance of the law is compounded by his commission of grave misconduct, the imposition of the penalty of dismissal from service is justified.112 Undue delay in rendering a decision or order

Undue delay in rendering a decision or order constitutes a less serious charge. Pursuant to Section 11(b) of Rule 140 of the Rules of Court, such offense is punishable by suspension from office without salary and other benefits for not less than one (1) or more than three (3) months; or a fine of more than ₱10,000.00 but not exceeding ₱20,000.00. Considering the number of pending incidents and the length of time it took Judge Flores to dispose of them, the Court finds the recommendation of Justice Francisco that the imposition of a ₱20,000.00 fine should be imposed. WHEREFORE, the Court finds: (1) respondent Judge Alan L. Flores, GUILTY of Gross Ignorance of the Law and Gross Misconduct, and is DISMISSED from the service with forfeiture of all benefits except as to accrued leave credits and disqualified from reinstatement or appointment to any public office, including government-owned or controlled corporations; and (2) respondent Judge Alan L. Flores GUILTY of Undue Delay in Rendering Decisions/Orders and is imposed a FINE of ₱20,000.00 to be deducted from the balance of the monetary value of the accrued leave credits and/or other benefits that he may be entitled to. Pursuant to A.M. No. 02-9-02-SC,113 these administrative cases against Judge Alan L. Flores are also considered as a disciplinary proceeding against him as a member of the bar. He is therefore REQUIRED to SHOW CAUSE within ten (10) days from notice why he should not be disbarred from the practice of law for cond4ct unbecoming of a member of the bar. Further, these consolidated administrative cases are referred to the Office of the Bar Confidant for investigation, report and recommendation. The charge against Atty. Bernardino Bering, Clerk of Court VI of the Regional Trial Court of Kapatagan, Lanao del Norte, Branch 21 is referred to the Office of the Court Administrator for its investigation, report and recommendation. This Decision is immediately executory and Judge Flores is ORDERED to CEASE AND DESIST from discharging the functions of his Office upon receipt of this Decision. SO ORDERED. MARIA LOURDES P.A. SERENO Chief Justice

EN BANC [A.C. No. 3405. June 29, 1998] JULIETA B. NARAG, complainant, vs. ATTY. DOMINADOR M. NARAG, respondent. DECISION PER CURIAM: Good moral character is a continuing qualification required of every member of the bar. Thus, when a lawyer fails to meet the exacting standard of moral integrity, the Supreme Court may withdraw his or her privilege to practice law. On November 13, 1989, Mrs. Julieta B. Narag filed an administrative complaint[1] for disbarment against her husband, Atty. Dominador M. Narag, whom she accused of having violated Canons 1 and 6, Rule 1.01 of the Code of Ethics for Lawyers.[2] The complainant narrated: The St. Louis College of Tuguegarao engaged the services of Atty. Dominador M. Narag in the early seventies as a full-time college instructor in the College of Arts and Sciences and as a professor in the Graduate School. In 1984, Ms. Gina Espita, 17 years old and a first year college student, enrolled in subjects handled by Atty. Narag. Exerting his influence as her teacher, and as a prominent member of the legal profession and then member of the Sangguniang Bayan of Tuguegarao, Atty. Narag courted Ms. Espita, gradually lessening her resistance until the student acceded to his wishes. They then maintained an illicit relationship known in various circles in the community, but which they managed to keep from me. It therefore came as a terrible embar[r]assment to me, with unspeakable grief and pain when my husband abandoned us, his family, to live with Ms. Espita, in utterly scandalous circumstances.

On June 26, 1990, the office of then Chief Justice Marcelo B. Fernan received from complainant another letter seeking the dismissal of the administrative complaint. She alleged therein that (1) she fabricated the allegations in her complaint to humiliate and spite her husband; (2) all the love letters between the respondent and Gina Espita were forgeries; and (3) she was suffering from emotional confusion arising from extreme jealousy. The truth, she stated, was that her husband had remained a faithful and responsible family man. She further asserted that he had neither entered into an amorous relationship with one Gina Espita nor abandoned his family.[5] Supporting her letter were an Affidavit of Desistance[6] and a Motion to Dismiss,[7] attached as Annexes A and B, which she filed before the IBP commission on bar discipline.[8] In a Decision dated October 8, 1991, the IBP Board of Governors [9] dismissed the complaint of Mrs. Narag for failure to prosecute.[10] The case took an unexpected turn when, on November 25, 1991, this Court [11] received another letter[12] from the complainant, with her seven children[13] as co-signatories, again appealing for the disbarment of her husband. She explained that she had earlier dropped the case against him because of his continuous threats against her.[14] In his Comment on the complainants letter of November 11, 1991, filed in compliance with this Courts Resolution issued on July 6, 1992,[15] respondent prayed that the decision of the Board of Governors be affirmed. Denying that he had threatened, harassed or intimidated his wife, he alleged that she had voluntarily executed her Affidavit of Desistance[16] and Motion to Dismiss,[17] even appearing before the investigating officer, Commissioner Racela, to testify under oath that she prepared the Motion to Dismiss and Affidavit of Desistance on her own free will and affirmed the contents thereof. In addition, he professed his love for his wife and his children and denied abandoning his family to live with his paramour. However, he described his wife as a person emotionally disturbed, viz.:

It appears that Atty. Narag used his power and influence as a member of the Sangguniang Panlalawigan of Cagayan to cause the employment of Ms. Espita at the Department of Trade and Industry Central Office at Makati, Metro Manila. Out of gratitude perhaps, for this gesture, Ms. Espita agreed to live with Atty. Narag, her sense of right[e]ousness and morals completely corrupted by a member of the Bar.

What is pitiable here is the fact that Complainant is an incurably jealous and possessive woman, and every time the streak of jealousy rears its head, she fires off letters or complaints against her husband in every conceivable forum, all without basis, and purely on impulse, just to satisfy the consuming demands of her loving jealousy. Then, as is her nature, a few hours afterwards, when her jealousy cools off, she repents and feels sorry for her acts against the Respondent. Thus, when she wrote the Letter of November 11, 1991, she was then in the grips of one of her bouts of jealousy.[18]

It is now a common knowledge in the community that Atty. Dominador M. Narag has abandoned us, his family, to live with a 22-year-old woman, who was his former student in the tertiary level[.][3]

On August 24, 1992, this Court issued another Resolution referring the Comment of respondent to the IBP.[19] In the hearing before IBP Commissioner Plaridel C. Jose, respondent alleged the following:[20]

This Court, in a Resolution dated December 18, 1989, referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.[4]

2. Your Respondent comes from very poor parents who have left him not even a square meter of land, but gave him the best legacy in life: a purposeful and meaningful

education.Complainant comes from what she claims to be very rich parents who value material possession more than education and the higher and nobler aspirations in life. Complainant abhors the poor. 3. Your Respondent has a loving upbringing, nurtured in the gentle ways of love, forgiveness, humility, and concern for the poor. Complainant was reared and raised in an entirely different environment. Her value system is the very opposite. 4. Your Respondent loves his family very dearly, and has done all he could in thirty-eight (38) years of marriage to protect and preserve his family. He gave his family sustenance, a comfortable home, love, education, companionship, and most of all, a good and respected name. He was always gentle and compassionate to his wife and children. Even in the most trying times, he remained calm and never inflicted violence on them. His children are all now full-fledged professionals, mature, and gainfully employed. x x x xxxxxxxxx Your Respondent subscribes to the sanctity of marriage as a social institution. On the other hand, consumed by insane and unbearable jealousy, Complainant has been systematically and unceasingly destroying the very foundations of their marriage and their family.Their marriage has become a torture chamber in which Your Respondent has been incessantly BEATEN, BATTERED, BRUTALIZED, TORTURED, ABUSED, and HUMILIATED, physically, mentally, and emotionally, by the Complainant, in public and at home. Their marriage has become a nightmare. For thirty-eight years, your Respondent suffered in silence and bore the pain of his misfortune with dignity and with almost infinite patience, if only to preserve their family and their marriage.But this is not to be. The Complainant never mellowed and never became gentl[e], loving, and understanding. In fact, she became more fierce and predatory. Hence, at this point in time, the light at the tunnel for Your Respondent does not seem in sight. The darkness continues to shroud the marital and familial landscape. Your Respondent has to undergo a catharsis, a liberation from enslavement. Paraphrasing Dorfman in Death and the Maiden, can the torturer and the tortured co-exist and live together? Hence, faced with an absolutely uncomprehending and uncompromising mind whose only obsession now is to destroy, destroy, and destroy, Your Respondent, with perpetual regret and with great sorrow, filed a Petition for Annulment of Marriage, Spl. Proc. No. 566, RTC, Branch III, Tuguegarao, Cagayan. x x x.

5. Complainant is a violent husband-beater, vitriolic and unbending. But your Respondent never revealed these destructive qualities to other people. He preserved the good name and dignity of his wife. This is in compliance with the marital vow to love, honor or obey your spouse, for better or for worse, in sickness and in health. . . Even in this case, Your Respondent never revealed anything derogatory to his wife. It is only now that he is constrained to reveal all these things to defend himself. On the other hand, for no reason at all, except a jealous rage, Complainant tells everyone, everywhere, that her husband is worthless, good-for-nothing, evil and immoral. She goes to colleges and universities, professional organizations, religious societies, and all other sectors of the community to tell them how evil, bad and immoral her husband is. She tells them not to hire him as professor, as Counsel, or any other capacity because her husband is evil, bad, and immoral. Is this love? Since when did love become an instrument to destroy a mans dearest possession in life - his good name, reputation and dignity? Because of Complainants virulent disinformation campaign against her husband, employing every unethical and immoral means to attain his ends, Your Respondent has been irreparably and irreversibly disgraced, shamed, and humiliated. Your Respondent is not a scandalous man. It is he who has been mercilessly scandalized and crucified by the Complainant.[21] To prove the alleged propensity of his wife to file false charges, respondent presented as evidence the following list of the complaints she had filed against him and Gina Espita: 3.1 Complaint for Immorality/Neglect of Duty x x x 3.2 Complaint for Immorality/Neglect of Duty, DILG, Adm. Case No. P-5-90. x x x 3.3 Complaint for Concubinage. Provincial Prosecutors Office of Cagayan. I.S No. 89114. x x x 3.4 Complaint for Anti-Graft and Corrupt Practices and concubinage. OMBUDSMAN Case No. 1-92-0083. x x x 3.5 Complaint for Civil Support. RTC, Tuguegarao, Civil Case No. 4061. DISMISSED. 3.6 Complaint for Concubinage. Provincial Prosecutors Office of Cagayan. I.S. No. 92-109. DISMISSED.(x x x). Complainant filed Motion for Reconsideration. DENIED. (x x x). 3.7 Complaint for Disbarment (x x x) with S[upreme] C[ourt]. Withdrawn (x x x). DISMISSED by IBP Board of Governors (x x x). Re-instituted (x x x). 3.8 Complaint for Disbarment, again (x x x). Adm. Case No. 3405. Pending.

3.9 Complaint for Concubinage, again (x x x). Third MCTC, Tumauini, Isabela. Pending. x x x[22] In his desperate effort to exculpate himself, he averred: I. That all the alleged love letters and envelopes (x x x), picture (x x x) are inadmissible in evidence as enunciated by the Supreme Court in Cecilia Zulueta vs. Court of Appeals, et. al., G.R. No. 107383, February 20, 1996. (x x x). xxxxxxxxx II. That respondent is totally innocent of the charges: He never courted Gina Espita in the Saint Louis College of Tuguegarao. He never caused the employment of said woman in the DTI.He never had or is having any illicit relationship with her anywhere, at any time. He never lived with her as husband and wife anywhere at any time, be it in Centro Tumauini or any of its barangays, or in any other place. He never begot a child or children with her. Finally, respondent submits that all the other allegations of Mrs. Narag are false and fabricated, x x x xxxxxxxxx III. Respondent never abandoned his family[.] Mrs. Narag and her two sons forcibly drove respondent Narag out of the conjugal home. After that, Atty. Narag tried to return to the conjugal home many times with the help of mutual friends to save the marriage and the family from collapse. He tried several times to reconcile with Mrs. Narag. In fact, in one of the hearings of the disbarment case, he offered to return home and to reconcile with Mrs. Narag. But Mrs. Narag refused all these efforts of respondent Narag. x x x IV. Complainant Julieta B. Narag is an unbearably jealous, violent, vindictive, scandalous, virulent and merciless wife since the beginning of the marriage, who incessantly beat, battered, brutalized, tortured, abuse[d], scandalized, and humiliated respondent Atty. Narag, physically, mentally, emotionally, and psychologically, x x x. V. Complainant Julieta Narags claim in her counter-manifestation dated March 28, 1996, to the effect that the affidavit of Dominador B. Narag, Jr., dated February 27, 1996 was obtained through force and intimidation, is not true. Dominador, Jr., executed his affidavit freely, voluntarily, and absolutely without force or intimidation, as shown by the transcript of stenographic notes of the testimonies of Respondent Atty. Narag and Tuguegarao MTC Judge Dominador Garcia during the trial of Criminal Case No. 12439, People vs. Dominador M. Narag, et. al., before the Tuguegarao MTC on May 3, 1996. x x x. xxxxxxxxx VI. Respondent Atty. Narag is now an old man - a senior citizen of 63 years - sickly, abandoned, disgraced, weakened and debilitated by progressively degenerative gout and

arthritis, and hardly able to earn his own keep. His very physical, medical, psychological, and economic conditions render him unfit and unable to do the things attributed to him by the complainant.Please see the attached medical certificates, x x x, among many other similar certificates touching on the same ailments. Respondent is also suffering from hypertension.[23] On July 18, 1997, the investigating officer submitted his report,[24] recommending the indefinite suspension of Atty. Narag from the practice of law. The material portions of said report read as follows: Culled from the voluminous documentary and testimonial evidence submitted by the contending parties, two (2) issues are relevant for the disposition of the case, namely: a) Whether there was indeed a commission of alleged abandonment of respondents own family and [whether he was] living with his paramour, Gina Espita; b) Whether the denial under oath that his illegitimate children with Gina Espita (Aurelle Dominic and Kyle Dominador) as appearing on paragraph 1(g) of respondents Comment vis-a-vis his handwritten love letters, the due execution and contents of which, although he objected to their admissibility for being allegedly forgeries, were never denied by him on the witness stand much less presented and offered proof to support otherwise. Except for the testimonies of respondents witnesses whose testimonies tend to depict the complaining wife, Mrs. Narag, as an incurably jealous wife and possessive woman suffering everytime with streaks of jealousy, respondent did not present himself on the witness stand to testify and be cross-examined on his sworn comment; much less did he present his alleged paramour, Gina Espita, to disprove the adulterous relationship between him and their having begotten their illegitimate children, namely: Aurelle Dominic N. Espita and Kyle Dominador N. Espita. Worse, respondents denial that he is the father of the two is a ground for disciplinary sanction (Morcayda v. Naz, 125 SCRA 467). Viewed from all the evidence presented, we find the respondent subject to disciplinary action as a member of the legal profession.[25] In its Resolution[26] issued on August 23, 1997, the IBP adopted and approved the investigating commissioners recommendation for the indefinite suspension of the respondent.[27] Subsequently, the complainant sought the disbarment of her husband in a Manifestation/Comment she filed on October 20, 1997. The IBP granted this stiffer penalty and, in its Resolution dated November 30, 1997, denied respondents Motion for Reconsideration. After a careful scrutiny of the records of the proceedings and the evidence presented by the parties, we find that the conduct of respondent warrants the imposition of the penalty of disbarment.

The Code of Professional Responsibility provides:

A Yes, Your Honor, he is the live-in partner of my sister, Gina Espita.

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

Q If Atty. Narag is here, can you point [to] him?

CANON 7-- A lawyer shall at all times uphold the integrity and dignity of the legal profession, and support the activities of the Integrated Bar.

A Yes, sir.

Rule 7.03-- A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor should he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession. precedent[28]

Thus, good moral character is not only a condition to the practice of law, but a continuing qualification for all members of the bar. Hence, when a lawyer is found guilty of gross immoral conduct, he may be suspended or disbarred.[29] Immoral conduct has been defined as that conduct which is so willful, flagrant, or shameless as to show indifference to the opinion of good and respectable members of the community.[30]Furthermore, such conduct must not only be immoral, but grossly immoral. That is, it must be so corrupt as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree[31] or committed under such scandalous or revolting circumstances as to shock the common sense of decency.[32] We explained in Barrientos vs. Daarol[33] that, as officers of the court, lawyers must not only in fact be of good moral character but must also be seen to be of good moral character and leading lives in accordance with the highest moral standards of the community. More specifically, a member of the Bar and officer of the court is not only required to refrain from adulterous relationships or the keeping of mistresses but must also so behave himself as to avoid scandalizing the public by creating the belief that he is flouting those moral standards. Respondent Narag is accused of gross immorality for abandoning his family in order to live with Gina Espita. The burden of proof rests upon the complainant, and the Court will exercise its disciplinary power only if she establishes her case by clear, convincing and satisfactory evidence.[34] Presented by complainant as witnesses, aside from herself,[35] were: Charlie Espita,[36] Magdalena Bautista,[37] Bienvenido Eugenio,[38] Alice Carag,[39] Dr. Jervis B. Narag,[40] Dominador Narag, Jr.,[41] and Nieves F. Reyes.[42] Charlie Espita, brother of the alleged paramour Gina Espita, corroborated complainants charge against respondent in these categorical statements he gave to the investigating officer: Q Mr. Witness, do you know Atty. Narag?

(Witness pointed to the respondent, Atty. Dominador Narag) Q Why do you know Atty. Narag? ATTY. NARAG: Already answered. He said I am the live-in partner. CONTINUATION OF THE DIRECT A Because he is the live-in partner of my sister and that they are now living together as husband and wife and that they already have two children, Aurelle Dominic and Kyle Dominador. x x x x x x x x x [43] During cross-examination conducted by the respondent himself, Charlie Espita repeated his account that his sister Gina was living with the respondent, with whom she had two children: Q Mr. Espita, you claim that Atty. Narag is now living with your sister as husband and wife. You claim that? A Yes, sir. Q Why do you say that? A Because at present you are living together as husband and wife and you have already two children and I know that that is really an immoral act which you cannot just allow me to follow since my moral values dont allow me that my sister is living with a married man like you. Q How do you know that Atty. Narag is living with your sister? Did you see them in the house? A Yes, si[r]. xxxxxxxxx

Q You said also that Atty. Narag and your sister have two children, Aurelle Dominic and Kyle Dominador, is it not? A Yes, sir. Q How do you know that they are the children of Atty. Narag? A Because you are staying together in that house and you have left your family.[44] In addition, Charlie Espita admitted (1) that it was he who handed to Mrs. Narag the love letters respondent had sent to his sister, and (2) that Atty. Narag tried to dissuade him from appearing at the disbarment proceedings.[45] Witness Bienvenido Eugenio strengthened the testimony of Charlie Espita in this wise: Q Mr. Witness, do you know the respondent in this case? A I know him very well, sir. Q Could you please tell us why do you know him? A Because he was always going to the house of my son-in-law by the name of Charlie Espita. xxxxxxxxx Q Mr. Eugenio, do you know the residence of Atty. Dominador M. Narag? A At that time, he [was] residing in the house of Reynaldo Angubong, sir. Q And this is located where? A Centro Tamauini, Isabela, sir. Q And you specifically, categorically state under oath that this is the residence of Atty. Narag? A Yes, sir. xxxxxxxxx Q And under oath this is where Atty. Narag and Gina Espita are allegedly living as husband and wife, is it not? A Yes, sir.[46]

Witness Nieves Reyes, a neighbor and friend of the estranged couple, testified that she learned from the Narag children -- Randy, Bong and Rowena -- that their father left his family, that she and her husband prodded the complainant to accept the respondent back, that the Narag couple again separated when the respondent went back to his woman, and that Atty. Narag had maltreated his wife.[47] On the strength of the testimony of her witnesses, the complainant was able to establish that respondent abandoned his family and lived with another woman. Absent any evidence showing that these witnesses had an ill motive to testify falsely against the respondent, their testimonies are deemed worthy of belief. Further, the complainant presented as evidence the love letters that respondent had sent to Gina. In these letters, respondent clearly manifested his love for Gina and her two children, whom he acknowledged as his own. In addition, complainant also submitted as evidence the cards that she herself had received from him. Guided by the rule that handwriting may be proved through a comparison of one set of writings with those admitted or treated by the respondent as genuine, we affirm that the two sets of evidence were written by one and the same person.[48] Besides, respondent did not present any evidence to prove that the love letters were not really written by him; he merely denied that he wrote them. While the burden of proof is upon the complainant, respondent has the duty not only to himself but also to the court to show that he is morally fit to remain a member of the bar. Mere denial does not suffice. Thus, when his moral character is assailed, such that his right to continue practicing his cherished profession is imperiled, he must meet the charges squarely and present evidence, to the satisfaction of the investigating body and this Court, that he is morally fit to have his name in the Roll of Attorneys.[49] This he failed to do. Respondent adamantly denies abandoning his family to live with Gina Espita. At the same time, he depicts his wife as a violent husband-beater, vitriolic and unbending, and as an insanely and pathologically jealous woman, whose only obsession was to destroy, destroy and destroy him as shown by her filing of a series of allegedly unfounded charges against him (and Gina Espita). To prove his allegation, he presented ninety-eight (98) pieces of documentary evidence[50] and ten (10) witnesses.[51] We note, however, that the testimonies of the witnesses of respondent did not establish the fact that he maintained that moral integrity required by the profession that would render him fit to continue practicing law. Neither did their testimonies destroy the fact, as proven by the complainant, that he had abandoned his family and lived with Gina Espita, with whom he had two children.Some of them testified on matters which they had no actual knowledge of, but merely relied on information from either respondent himself or other people, while others were presented to impeach the good character of his wife.

Respondent may have provided well for his family -- they enjoyed a comfortable life and his children finished their education. He may have also established himself as a successful lawyer and a seasoned politician. But these accomplishments are not sufficient to show his moral fitness to continue being a member of the noble profession of law. We remind respondent that parents have not only rights but also duties e.g., to support, educate and instruct their children according to right precepts and good example; and to give them love, companionship and understanding, as well as moral and spiritual guidance.[52] As a husband, he is also obliged to live with his wife; to observe mutual love, respect and fidelity; and to render help and support.[53] Respondent himself admitted that his work required him to be often away from home. But the evidence shows that he was away not only because of his work; instead, he abandoned his family to live with his paramour, who bore him two children. It would appear, then, that he was hardly in a position to be a good husband or a good father. His children, who grew up mostly under the care of their mother, must have scarcely felt the warmth of their fathers love. Respondents son, Jervis B. Narag, showed his resentment towards his fathers moral frailties in his testimony: Q My question is this, is there any sin so grievous that it cannot be forgiven, is there a fault that is so serious that it is incapable of forgiveness? A That depends upon the sin or fault, sir, but if the sin or fault is with the emotional part of myself, I suppose I cannot forgive a person although I am a God-fearing person, but I h[av]e to give the person a lesson in order for him or her to at least realize his mistakes, sir. xxxxxxxxx COMR. JOSE: I think it sounds like this. Assuming for the sake of argument that your father is the worst, hardened criminal on earth, would you send him to jail and have him disbarred? That is the question. CONTINUATION. A With the reputation that he had removed from us, I suppose he has to be given a lesson. At this point in time, I might just forgive him if he will have to experience all the pains that we have also suffered for quite sometime.

Q Dr. Narag, your father gave you life, his blood runs in your veins, his flesh is your flesh, his bones are your bones and you now disown him because he is the worst man on earth, is that what you are saying. A Sort of, sir. Q You are now telling that as far [as] you are concerned because your father has sinned, you have no more father, am I correct? A Long before, sir, I did not feel much from my father even when I was still a kid because my father is not always staying with us at home. So, how can you say that? Yes, he gave me life, why not? But for sure, sir, you did not give me love.[54] Another son, Dominador Narag, Jr., narrated before the investigating officer the trauma he went through: Q In connection with that affidavit, Mr. Witness, which contains the fact that your father is maintaining a paramour, could you please tell this Honorable Commission the effect on you? A This has a very strong effect on me and this includes my brothers and sisters, especially my married life, sir. And it also affected my children so much, that I and my wife ha[ve] parted ways. It hurts to say that I and my wife parted ways. This is one reason that affected us. Q Will you please tell us specifically why you and your wife parted ways? A Because my wife wa[s] ashamed of what happened to my family and that she could not face the people, our community, especially because my wife belongs to a well-known family in our community. Q How about the effect on your brothers and sisters? Please tell us what are those. A Well, sir, this has also affected the health of my elder sister because she knows so well that my mother suffered so much and she kept on thinking about my mother. xxxxxxxxx Q Why did your wife leave you? A The truth is because of the things that had happened in our family, Your Honor. Q In your wifes family? A In our family, sir.

Q And what do you mean by that? A What I meant by that is my father had an illicit relationship and that my father went to the extent of scolding my wife and calling my wife a puta in provincial government, which my mother-in-law hated him so much for this, which really affected us. And then my wife knew for a fact that my father has an illicit relationship with Gina Espita, whom he bore two children by the name of Aurelle Dominic and Kyle Dominador, which I could prove and I stand firm to this, Your Honor.[55] Although respondent piously claims adherence to the sanctity of marriage, his acts prove otherwise. A husband is not merely a man who has contracted marriage. Rather, he is a partner who has solemnly sworn to love and respect his wife and remain faithful to her until death. We reiterate our ruling in Cordova vs. Cordova[56] The moral delinquency that affects the fitness of a member of the bar to continue as such includes conduct that outrages the generally accepted moral standards of the community, conduct for instance, which makes a mockery of the inviolable social institution of marriage. In Toledo vs. Toledo,[57] the respondent was disbarred from the practice of law, when he abandoned his lawful wife and cohabited with another woman who had borne him a child. Likewise, in Obusan vs. Obusan,[58] the respondent was disbarred after the complainant proved that he had abandoned her and maintained an adulterous relationship with a married woman. This Court declared that respondent failed to maintain the highest degree of morality expected and required of a member of the bar. In the present case, the complainant was able to establish, by clear and convincing evidence, that respondent had breached the high and exacting moral standards set for members of the law profession. As held in Maligsa vs. Cabanting,[59] a lawyer may be disbarred for any misconduct, whether in his professional or private capacity, which shows him to be wanting in moral character, in honesty, probity and good demeanor or unworthy to continue as an officer of the court. WHEREFORE, Dominador M. Narag is hereby DISBARRED and his name is ORDERED STRICKEN from the Roll of Attorneys. Let copies of this Decision be in the personal record of Respondent Narag; and furnished to all courts of the land, the Integrated Bar of the Philippines, and the Office of the Bar Confidant. SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Martinez, Quisumbing, and Purisima, JJ., concur.

EN BANC [SBC Case No. 519. July 31, 1997] PATRICIA FIGUEROA, complainant, vs. SIMEON BARRANCO, JR., respondent. RESOLUTION ROMERO, J.: In a complaint made way back in 1971, Patricia Figueroa petitioned that respondent Simeon Barranco, Jr. be denied admission to the legal profession. Respondent had passed the 1970 bar examinations on the fourth attempt, after unsuccessful attempts in 1966, 1967 and 1968. Before he could take his oath, however, complainant filed the instant petition averring that respondent and she had been sweethearts, that a child out of wedlock was born to them and that respondent did not fulfill his repeated promises to marry her. The facts were manifested in hearings held before Investigator Victor F. Sevilla in June and July 1971. Respondent and complainant were townmates in Janiuay, Iloilo. Since 1953, when they were both in their teens, they were steadies. Respondent even acted as escort to complainant when she reigned as Queen at the 1953 town fiesta. Complainant first acceded to sexual congress with respondent sometime in 1960. Their intimacy yielded a son, Rafael Barranco, born on December 11, 1964.[1] It was after the child was born, complainant alleged, that respondent first promised he would marry her after he passes the bar examinations. Their relationship continued and respondent allegedly made more than twenty or thirty promises of marriage. He gave only P10.00 for the child on the latters birthdays. Her trust in him and their relationship ended in 1971, when she learned that respondent married another woman. Hence, this petition. Upon complainants motion, the Court authorized the taking of testimonies of witnesses by deposition in 1972. On February 18, 1974, respondent filed a Manifestation and Motion to Dismiss the case citing complainants failure to comment on the motion of Judge Cuello seeking to be relieved from the duty to take aforesaid testimonies by deposition. Complainant filed her comment stating that she had justifiable reasons in failing to file the earlier comment required and that she remains interested in the resolution of the present case. On June 18, 1974, the Court denied respondents motion to dismiss. On October 2, 1980, the Court once again denied a motion to dismiss on the ground of abandonment filed by respondent on September 17, 1979.[2] Respondents third motion to dismiss was noted in the Courts Resolution dated September 15, 1982.[3] In 1988, respondent repeated his request, citing his election as a member of the Sangguniang Bayan of Janiuay, Iloilo from 1980-1986, his active participation in civic organizations and

good standing in the community as well as the length of time this case has been pending as reasons to allow him to take his oath as a lawyer.[4] On September 29, 1988, the Court resolved to dismiss the complaint for failure of complainant to prosecute the case for an unreasonable period of time and to allow Simeon Barranco, Jr. to take the lawyers oath upon payment of the required fees.[5] Respondents hopes were again dashed on November 17, 1988 when the Court, in response to complainants opposition, resolved to cancel his scheduled oath-taking. On June 1, 1993, the Court referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. The IBPs report dated May 17, 1997 recommended the dismissal of the case and that respondent be allowed to take the lawyers oath. We agree. Respondent was prevented from taking the lawyers oath in 1971 because of the charges of gross immorality made by complainant. To recapitulate, respondent bore an illegitimate child with his sweetheart, Patricia Figueroa, who also claims that he did not fulfill his promise to marry her after he passes the bar examinations. We find that these facts do not constitute gross immorality warranting the permanent exclusion of respondent from the legal profession. His engaging in premarital sexual relations with complainant and promises to marry suggests a doubtful moral character on his part but the same does not constitute grossly immoral conduct. The Court has held that to justify suspension or disbarment the act complained of must not only be immoral, but grossly immoral. A grossly immoral act is one that is so corrupt and false as to constitute a criminal act or so unprincipled or disgraceful as to be reprehensible to a high degree.[6] It is a willful, flagrant, or shameless act which shows a moral indifference to the opinion of respectable members of the community.[7] We find the ruling in Arciga v. Maniwang[8] quite relevant because mere intimacy between a man and a woman, both of whom possess no impediment to marry, voluntarily carried on and devoid of any deceit on the part of respondent, is neither so corrupt nor so unprincipled as to warrant the imposition of disciplinary sanction against him, even if as a result of such relationship a child was born out of wedlock.[9] Respondent and complainant were sweethearts whose sexual relations were evidently consensual. We do not find complainants assertions that she had been forced into sexual intercourse, credible. She continued to see and be respondents girlfriend even after she had given birth to a son in 1964 and until 1971. All those years of amicable and intimate relations refute her allegations that she was forced to have sexual congress with him. Complainant was then an adult who voluntarily and actively pursued their

relationship and was not an innocent young girl who could be easily led astray. Unfortunately, respondent chose to marry and settle permanently with another woman. We cannot castigate a man for seeking out the partner of his dreams, for marriage is a sacred and perpetual bond which should be entered into because of love, not for any other reason. We cannot help viewing the instant complaint as an act of revenge of a woman scorned, bitter and unforgiving to the end. It is also intended to make respondent suffer severely and it seems, perpetually, sacrificing the profession he worked very hard to be admitted into. Even assuming that his past indiscretions are ignoble, the twenty-six years that respondent has been prevented from being a lawyer constitute sufficient punishment therefor. During this time there appears to be no other indiscretion attributed to him.[10] Respondent, who is now sixty-two years of age, should thus be allowed, albeit belatedly, to take the lawyers oath. WHEREFORE, the instant petition is hereby DISMISSED. Respondent Simeon Barranco, Jr. is ALLOWED to take his oath as a lawyer upon payment of the proper fees. SO ORDERED. Padilla, Regalado, Davide, Jr., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, and Panganiban, JJ., concur. Narvasa, C.J., Hermosisima, Jr., and Torres, Jr., JJ., on leave

EN BANC TORBEN B. OVERGAARD,

A.C. No. 7902

against him. Despite the receipt of the full amount of legal fees of P900,000.00 as stipulated in a Retainer Agreement, the respondent refused to perform any of his obligations under their contract for legal services, ignored the complainants request for a report of the status of the cases entrusted to his care, and rejected the complainants demands for the return of the money paid to him.

ATTY. GODWIN R. VALDEZ, Respondent.

Complainant Overgaard filed a complaint for disbarment against Valdez before the IBP. During the investigation, respondent Valdez did not participate despite due notice. He was declared in default for failure to submit an answer and attend the mandatory conference. He did not submit a position paper or attend the hearing.

x ---------------------------------------------------------------------------------------x

RESOLUTION

PER CURIAM:

At bar is a Motion for Reconsideration,[1] dated, October 21, 2008 filed by respondent Godwin R. Valdez (Valdez), praying that the September 30, 2008 decision of this Court disbarring him from the practice of law be reconsidered by remanding the records of the case to the Integrated Bar of the Philippines (IBP) Commission on Bar Discipline. He further prays that the IBP Commission on Bar Discipline be directed to receive his Answer, evidence and Position Paper and thereafter, that he be absolved of the charges against him and that his name be reinstated in the Roll of Attorneys.[2]

We have previously decided in Torben B. Overgaard v. Atty. Godwin R. Valdez,[3] that respondent Valdez committed malpractice and gross misconduct in his office as attorney and is thus unfit to continue discharging the trust reposed in him as a member of the bar.

The complainant, Torben Overgaard (Overgaard) engaged the services of respondent Valdez as his legal counsel in two cases filed by him and two cases filed

On September 30, 2008, this Court held that respondent Valdez committed multiple violations of the canons of the Code of Professional Responsibility. The dispositive portion of this Decision states:

IN VIEW WHEREOF, respondent Atty. Godwin R. Valdez is hereby DISBARRED and his name is ordered STRICKEN from the Roll of Attorneys. He is ORDERED to immediately return to Torben B. Overgaard the amount of $16,854.00 or its equivalent in Philippine Currency at the time of actual payment, with legal interest of six percent (6%) per annum from November 27, 2006, the date of extra-judicial demand. A twelve percent (12%) interest per annum, in lieu of six percent (6%), shall be imposed on such amount from the date of promulgation of this decision until the payment thereof. He is further ORDERED to immediately return all papers and documents received from the complainant.[4] xxxx

Hence, this Motion for Reconsideration filed on October 21, 2008, by respondent Valdez, based on the following grounds:

I. RESPONDENT HAD ABSOLUTELY NO KNOWLEDGE THAT COMPLAINANT HAD FILED CHARGES AGAINST HIM AND THAT THERE WERE DISBARMENT PROCEEDINGS AND AN INVESTIGATION CONDUCTED BY THE INTEGRATED BAR OF THE PHILIPPINES.

II. HAD HE BEEN GIVEN AN OPPORTUNITY TO BE HEARD, HE WOULD HAVE PRESENTED STRONG, VALID AND MERITORIOUS DEFENSES TO THE CHARGES LEVELLED AGAINST HIM WHICH DEFENSES, CORRECTLY APPRECIATED, WOULD HAVE TOTALLY EXONERATED HIM. [5]

We deny the Motion for Reconsideration.

On the first issue, the respondent argues that the IBP has no jurisdiction over him since proof of service of the initiatory pleading to the defendant is a jurisidictional requirement.[6]He states in his Motion for Reconsideration that he had no inkling whatsoever of the existence of the disbarment case filed by the complainant.[7] He asserts that, in September 2006, he abruptly abandoned his office at Suite 402 Pacific Irvine Bldg., 2746 Zenaida St., at Makati City following persistent and serious threats to his physical safety and security x x x. [8] On the advice of his close friends and clients to lie low and make himself scarce,[9] he stayed for a few days in his residence at Imus, Cavite then relocated to Malaybalay City, Bukidnon.[10] He has been holding office and residing in Bukidnon since then, and he only found out about the decision from a colleague in Bukidnon who read the decision from the Courts website.

He claims that because he abruptly abandoned[11] his Makati office on September 2006, he was not able to receive the demand letter[12] sent by the complainant.[13] He was also not able to receive any of the notices, orders and other papers pertaining to the disbarment proceedings because at the time these were sent to his Makati office address, he was already holding office in Bukidnon.

Complainant Overgaard filed an Opposition/Comment to the Motion for Reconsideration[14] on December 9, 2008. He counters that respondent Valdez was duly notified of the charge against him and of all the proceedings at the IBP,[15] since all notices were sent to Suite 402 Pacific Irvine Bldg., No. 2746 Zenaida St., Makati City, Metro Manila, Philippines,[16]which is the respondents office address indicated in his letterhead and made known to the complainant and to the public. He sent the respondent a letter dated November 27, 2006, demanding that the latter return the documents and the P900,000.00 paid to him in relation to the case. The demand letter was sent to the

same address and was received by one whose signature was RRJ, as noted in the Registry Return Receipt.[17]

Complainant Overgaard argues that respondent cannot claim ignorance of the disbarment case against him, since this is a natural offshoot of a wrongful act.[18] Complainant Overgaard points out that when respondent Valdez left for Bukidnon, he already knew that the complainant was looking for him and demanding the return of the money and documents he received from the complainant.[19] The November 27, 2006 demand letter further contained a warning that [i]f [the respondent] will not return the documents and the money within ten (10) days from receipt hereof, [the complainant] will bring the matter to the proper authorities/forum for the redress of [his] grievances.[20] The complainant denies that he or his business partners know of respondents whereabouts, and he argues that it is the respondents duty as his counsel to adopt and strictly maintain a system that efficiently takes into account all notices sent to him.[21]

We hold that respondent was given reasonable notice of the complaint for disbarment against him.

A copy of the Complaint as well as the Order[22] to answer the Complaint was sent by the IBP Commission on Bar Discipline to the respondents Makati office address, and it was duly received by the respondent. The Registry Return Receipt[23] shows that it was also received by one RRJ, whose signature appears on the space for the signature of the addressees agent. The respondent cannot claim lack of knowledge of the complaint for disbarment against him when the Complaint and the Order for him to submit an Answer were duly received by his agent at his Makati law office. Succeeding notices in connection with the disbarment proceedings were also sent to the respondents Makati law office. He cannot escape liability for his misdeeds by feigning ignorance of the disbarment case, since the notices in connection with the proceedings were sent to his office address made known to the public and properly received by his agent.

Respondent Valdez was given full opportunity, upon reasonable notice, to answer the charges against him and to present evidence on his behalf. The IBP Commission on Bar Discipline was correct in proceeding with the investigation ex parte, because it was due to the respondents own fault and negligence that he was not able to submit an answer to the Complaint and participate in the investigation. Rule 138, Section 30 provides that an attorney should be heard before he is removed or suspended; but if, upon reasonable

notice, an attorney fails to appear and answer the accusations against him, the matter may be dealt with ex parte. Rule 138, Section 30 states:

SECTION 30. Attorney to be heard before removal or suspension. No attorney shall be removed or suspended from the practice of his profession, until he has had full opportunity upon reasonable notice to answer the charges against him, to produce witnesses in his own behalf, and to be heard by himself or counsel. But if upon reasonable notice he fails to appear and answer the accusation, the court may proceed to determine the matter ex parte. (Emphasis supplied.)

The respondents feeble excuse that he was no longer holding office at his Makati office address at the time the Order of the IBP Commission on Bar Discipline was sent to him is unacceptable. Ordinary prudence would have guarded against his alleged failure to receive the notices. All notices to the respondent were sent to his Makati office address, which was the address made known to the public and to the complainant. This is even the address printed on the letterhead of the Retainer Agreement between the complainant and the respondent. And although the respondent claims that he had to make himself scarce[24] due to threats to his life and safety, this does not mean that he avoids the responsibility of taking account of his mail. The respondent owes it to himself and to his clients to adopt a system whereby he would be able to receive mail sent to his law office during his absence. Assuming that circumstances would justify the respondents abrupt abandonment[25] of his Makati office, it absolutely does not give him the license to abandon his clients as well.

This brings us to the second issue: whether or not respondent committed multiple violations of the Code of Professional Responsibility and thus his disbarment should be sustained. The respondent argues that he did not abandon his client. He denies that he refused to perform any of his obligations under the contract for legal services between himself and the complainant. He claims that he gave the complainant legal advice, and that he searched for and interviewed witnesses in relation to the cases he was handling for the complainant.[26] He also denies that he ignored the complainants requests for a report of the cases entrusted to his care. He claims that he gave periodic status reports on the result of his work, that he returned the documents in connection with the case, and that he rendered an accounting of the money that he actually received.

We find that respondents disbarment should be upheld. From the facts of the case, and based on his own admissions, it is evident that he has committed multiple violations of the Code of Professional Responsibility.

In abruptly abandoning his law office without advising his client and without making sure that the cases he was handling for his client were properly attended to during his absence, and without making arrangements whereby he would receive important mail, the respondent is clearly guilty of gross negligence. A lawyer cannot simply disappear and abandon his clients and then rely on the convenient excuse that there were threats to his safety. Even assuming that there were serious threats to his person, this did not give him the permission to desert his client and leave the cases entrusted to his care hanging. He should have at least exercised reasonable and ordinary care and diligence by taking steps to ensure that the cases he was handling were attended to and that his clients interest was safeguarded. If it was not possible for him to handle the cases entrusted to his care, he should have informed the complainant of his predicament and asked that he be allowed to withdraw from the case to enable the client to engage the services of another counsel who could properly represent him.[27] Deplorably, the respondent just disappeared, deserted his client and forgot about the cases entrusted to his care, to the complainants damage and prejudice.

The respondent denies that he did not do anything in connection with the cases included in the Retainer Agreement. He asserts that he reviewed the documents in relation to the case and gave the complainant important advice. He claims that he travelled to Bato, Camarines Norte to negotiate for an amicable settlement with the members of the family of the adverse party in one of the cases filed against the complainant.[28] He also went to San Carlos City (Negros Oriental), Antipolo City, and other parts of Metro Manila to interview and search for witnesses for the cases that he was handling for the complainant.[29]

The respondents disbarment is not anchored on his failure to do anything in relation the cases entrusted to his care, but on his abandonment of his client. He will not be absolved from liability on the basis alone of these inconsequential acts which he claims to have accomplished because the glaring fact remains that he has failed to perform his essential obligations to his client, to the courts and to society. As the complainants lawyer, the respondent is expected to serve his client with competence and diligence.[30] This includes not merely reviewing the cases entrusted to his care and giving the complainant sound legal advice, but also properly representing his client in court, attending scheduled hearings, preparing and filing required pleadings, prosecuting the cases entrusted to his

care with reasonable dispatch, and urging their termination without waiting for his client or the court to prod him to do so. He should not idly sit by and leave the rights of his client in a state of uncertainty.

The respondents acts and omissions were not just a case of inaction, but they amount to deceitful conduct and are contrary to good morals. After assuring the complainant that he would protect the latters interest and attend to the cases included in the Retainer Agreement, he abandoned his client. It was only after the complainants own inquiry that he discovered that the respondent never appeared in court to represent the complainant in the cases filed against him, so much so that he had no knowledge that warrants of arrest were already issued against him. The respondent also failed to enter his appearance in the civil case for Mandamus, Injunction and Damages that the complainant filed. After receiving the complete amount of legal fees, giving the complainant initial legal advice, and interviewing some witnesses, the respondent just disappeared and the complainant never heard from him despite his continued efforts to contact the respondent.

The complainant put his trust in the respondent with full faith that the latter would exert his best effort and ability in the prosecution and defense of his clients cause. But instead of devotion to his clients cause, the respondent grossly neglected his duties to his client. After all the representations he made to the complainant and after receipt of the full amount of the legal fees, he absconded from his responsibilities and betrayed his clients trust. There is no excuse for this, and his gross negligence and appalling indifference is unforgiveable.

On the Courts finding that the respondent refused to return the money he received from the complainant despite written and verbal demands and was not able to give a single report regarding the status of the cases, the respondent claims that he returned the documents to the complainants representative in the middle of July 2006,[31] and that he also gave an accounting of the money he received sometime immediately after it was demanded from him on July 25 or 26, 2006. The respondent counters that although he initially received the amount of P900,000.00, he gave P300,000.00 to two intelligence operatives for locating witnesses in favor of the complainant in Antipolo City and other parts of Metro Manila.[32] He claims that only P600,000.00 was actually received by him, and from this amount he drew all expenses in connection with the complainants cases. The respondent further avers that he made an accounting of the P600,000.00 received by him and offered to return P250,000.00, but it was the complainants business partner who refused to accept the P250,000.00 and insisted on the payment of the whole amount.[33]

The complainant declared that he did not receive the documents being demanded from the respondent, nor did he receive an accounting of the money he paid to the respondent. He stated in his Opposition/Comment to the Motion for Reconsideration that the respondents empty claims -- that he already returned the documents sometime in the middle of July 2006 and that he rendered an accounting of the money paid to him immediately after July 25 or 26, 2006 -- are refuted by the demand letter sent by the complainant on November 27, 2006, four months after the alleged time of return.

We agree with the complainant.

If the respondent had indeed returned the documents sometime in the middle of July 2006, he would have presented a receipt to prove such turnover of documents. And if the respondent had indeed rendered an accounting of the money that was paid to him, he would have attached a received copy of the accounting to his Motion for Reconsideration. But he failed to do both. There was no proof presented. We cannot rely on his bare allegation, especially when the complainant demanded the return of the documents months after they were allegedly returned.

Neither are we persuaded by the respondents explanation as to how and where the P900,000.00 was spent. He claims that out of the P900,000.00, he only received P600,000.00 because he paid P300,000.00 to two intelligence operatives. In paying the intelligence operatives, he stated in his Motion for Reconsideration that he deposited P100,000.00 to the Land Bank account of one Investigator Operative Collado (Collado) sometime in the second week of January 2006, and that the rest of the P200,000.00 was personally handed by him to Collado in the last week of January 2006 at McDonalds restaurant at the corner of Pasong Tamo and J.P. Rizal Streets at Makati City.[34]

Such an account offered by the respondent is insufficient to free him from liability. If the respondent indeed paid P300,000.00 to two intelligence operatives with the knowledge of the complainant, he would have presented a receipt issued by Collado, and he would have also presented a validated deposit slip or certification as proof that he deposited the amount he claims to have deposited to Collados account. His failure to attach proof of payment of the P300,000.00 to the intelligence operatives does not only make his defense

flawed, it also highlights his incompetence in handling the money he received from the client.

It is a lawyers duty to properly account for the money he received from the client.[35] If indeed the respondent told the client that he would pay P300,000.00 to two intelligence operatives, as he claims in his Motion for Reconsideration, he should have held this money in trust, and he was under an obligation to make an accounting. It was his duty to secure a receipt for the payment of this amount on behalf of his client. But he failed to present any receipt or certification from Collado that the payment was received. Since the respondent was not able either to present an accounting of the P900,000.00 paid to him upon the complainants demand, or to provide a sufficient and plausible explanation for where such amount was spent, he must immediately return the same.

For these reasons, and those previously stated in the September 30, 2008 Decision of this Court, we find that respondent Valdez has committed multiple violations of the canons of the Code of Professional Responsibility. He has failed to observe the fundamental duties of honesty and good faith and, thus, we sustain his disbarment.

We must emphasize that the right to practice law is not a natural or constitutional right but is in the nature of a privilege or franchise,[36] and it may be extended or withheld by this Court in the exercise of its sound discretion. As guardian of the legal profession, this Court has ultimate disciplinary power over members of the Bar in order to ensure that the highest standards of competence and of honesty and fair dealing are maintained. We find that the respondent has fallen below such exacting standard and is unworthy of the privilege to practice law.

IN VIEW WHEREOF, the Motion for Reconsideration is DENIED. This Courts en banc decision in Administrative Case No. 7902 dated September 30, 2008, entitled Torben B. Overgaard v. Atty. Godwin R. Valdez, is AFFIRMED.

SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC A.C. No. 7360

July 24,2012

ATTY. POLICARIO I. CATALAN, JR., Complainant, vs. ATTY. JOSELITO M. SILVOSA, Respondent. DECISION PER CURIAM: This is a complaint filed by Atty. Policarpio I. Catalan, Jr. (Atty. Catalan) against Atty. Joselito M. Silvosa (Atty. Silvosa). Atty. Catalan has three causes of action against Atty. Silvosa; (1) Atty. Silvosa appeared as counsel for the accused in the same case for which he previously appeared as prosecutor; (2) Atty. Silvosa bribed his then colleague Prosecutor Phoebe Toribio (Pros.Toribio) for P30,000; and (3) the Sandiganbayan convicted Atty. Silvosa in Criminal Case No. 27776 for direct bribery. Integrated Bar of the Philippines’ (IBP) Commissioner for Bar Discipline Dennis A.B. Funa (Comm. Funa) held Atty. Silvosa liable only for the first cause of action and recommended the penalty of reprimand. The Board of Governors of the IBP twice modified Comm. Funa’s recommendation: first, to a suspension of six months, then to a suspension of two years. Atty. Silvosa was an Assistant Provincial Prosecutor of Bukidnon and a Prosecutor in Regional Trial Court (RTC), Branch 10, Malaybalay City, Bukidnon. Atty. Silvosa appeared as public prosecutor in Criminal Case No. 10256-00, "People of the Philippines v. SPO2 Elmor Esperon y Murillo, et al." (Esperon case), for the complex crime of double frustrated murder, in which case Atty. Catalan was one of the private complainants. Atty. Catalan took issue with Atty. Silvosa’s manner of prosecuting the case, and requested the Provincial Prosecutor to relieve Atty. Silvosa. In his first cause of action, Atty. Catalan accused Atty. Silvosa of appearing as private counsel in a case where he previously appeared as public prosecutor, hence violating Rule 6.03 of the Code of Professional Responsibility.1 Atty. Catalan also alleged that, apart from the fact that Atty. Silvosa and the accused are relatives and have the same middle name, Atty. Silvosa displayed manifest bias in the accused’s favor. Atty. Silvosa caused numerous delays in the trial of the Esperon case by arguing against the position of the private prosecutor. In 2000, Provincial Prosecutor Guillermo Ching granted Atty. Catalan’s request to relieve Atty. Silvosa from handling the Esperon case. The RTC rendered judgment convicting the accused on 16 November 2005. On 23 November 2005, Atty.

Silvosa, as private lawyer and as counsel for the accused, filed a motion to reinstate bail pending finality of judgment of the Esperon case. In his second cause of action, Atty. Catalan presented the affidavit of Pros. Toribio. In a case for frustrated murder where Atty. Catalan’s brother was a respondent, Pros. Toribio reviewed the findings of the investigating judge and downgraded the offense from frustrated murder to less serious physical injuries. During the hearing before Comm. Funa, Pros. Toribio testified that, while still a public prosecutor at the time, Atty. Silvosa offered her P30,000 to reconsider her findings and uphold the charge of frustrated murder. Finally, in the third cause of action, Atty. Catalan presented the Sandiganbayan’s decision in Criminal Case No. 27776, convicting Atty. Silvosa of direct bribery on 18 May 2006. Nilo Lanticse (Lanticse) filed a complaint against Atty. Silvosa before the National Bureau of Investigation (NBI). Despite the execution of an affidavit of desistance by the complainant in a homicide case in favor of Lanticse’s father-in-law, Arsenio Cadinas (Cadinas), Cadinas still remained in detention for more than two years. Atty. Silvosa demanded P15,000 from Lanticse for the dismissal of the case and for the release of Cadinas. The NBI set up an entrapment operation for Atty. Silvosa. GMA 7’s television program Imbestigador videotaped and aired the actual entrapment operation. The footage was offered and admitted as evidence, and viewed by the Sandiganbayan. Despite Atty. Silvosa’s defense of instigation, the Sandiganbayan convicted Atty. Silvosa. The dispositive portion of Criminal Case No. 27776 reads: WHEREFORE, this court finds JOSELITO M. SILVOSA GUILTY, beyond reasonable doubt, of the crime of direct bribery and is hereby sentenced to suffer the penalty of: (A) Imprisonment of, after applying the Indeterminate Sentence Law, one year, one month and eleven days of prision correccional, as minimum, up to three years, six months and twenty days of prision correccional, as maximum; (B) Fine of TEN THOUSAND PESOS (Php 10,000.00), with subsidiary imprisonment in case of insolvency; and (C) All other accessory penalties provided for under the law. SO ORDERED.2 In his defense, on the first cause of action, Atty. Silvosa states that he resigned as prosecutor from the Esperon case on 18 October 2002. The trial court released its decision in the Esperon case on 16 November 2005 and cancelled the accused’s bail. Atty. Silvosa claims that his appearance was only for the purpose of the reinstatement of bail. Atty. Silvosa also denies any relationship between himself and the accused.

On the second cause of action, Atty. Silvosa dismisses Pros. Toribio’s allegations as "selfserving" and "purposely dug by [Atty. Catalan] and his puppeteer to pursue persecution." On the third cause of action, while Atty. Silvosa admits his conviction by the Sandiganbayan and is under probation, he asserts that "conviction under the 2nd paragraph of Article 210 of the Revised Penal Code, do [sic] not involve moral turpitude since the act involved ‘do [sic] not amount to a crime.’" He further claims that "it is not the lawyer in respondent that was convicted, but his capacity as a public officer, the charge against respondent for which he was convicted falling under the category of crimes against public officers x x x." In a Report and Recommendation dated 15 September 2008, Comm. Funa found that: As for the first charge, the wordings and prohibition in Rule 6.03 of the Code of Professional Responsibility [are] quite clear. [Atty. Silvosa] did intervene in Criminal Case No. 10246-00. [Atty. Silvosa’s] attempt to minimize his role in said case would be unavailing. The fact is that he is presumed to have acquainted himself with the facts of said case and has made himself familiar with the parties of the case. Such would constitute sufficient intervention in the case. The fact that, subsequently, [Atty. Silvosa] entered his appearance in said case only to file a Motion to Post Bail Bond Pending Appeal would still constitute a violation of Rule 6.03 as such act is sufficient to establish a lawyer-client relation. As for the second charge, there is certain difficulty to dissect a claim of bribery that occurred more than seven (7) years ago. In this instance, the conflicting allegations are merely based on the word of one person against the word of another. With [Atty. Silvosa’s] vehement denial, the accusation of witness [Pros.] Toribio stands alone unsubstantiated. Moreover, we take note that the alleged incident occurred more than seven (7) years ago or in 1999, [l]ong before this disbarment case was filed on November 2006. Such a long period of time would undoubtedly cast doubt on the veracity of the allegation. Even the existence of the bribe money could not be ascertained and verified with certainty anymore. As to the third charge, [Atty. Silvosa] correctly points out that herein complainant has no personal knowledge about the charge of extortion for which [Atty. Silvosa] was convicted by the Sandiganbayan. [Atty. Catalan] was not a party in said case nor was he ever involved in said case. The findings of the Sandiganbayan are not binding upon this Commission. The findings in a criminal proceeding are not binding in a disbarment proceeding. No evidence has been presented relating to the alleged extortion case. PREMISES CONSIDERED, it is submitted that [Atty. Silvosa] is GUILTY only of the First Charge in violating Rule 6.03 of the Code of Professional Responsibility and should be given the penalty of REPRIMAND.

Respectfully submitted.3 In a Resolution dated 9 October 2008, the IBP Board of Governors adopted and approved with modification the Report and Recommendation of Comm. Funa and suspended Atty. Silvosa from the practice of law for six months. In another Resolution dated 28 October 2011, the IBP Board of Governors increased the penalty of Atty. Silvosa’s suspension from the practice of law to two years. The Office of the Bar Confidant received the notice of the Resolution and the records of the case on 1 March 2012. We sustain the findings of the IBP only in the first cause of action and modify its recommendations in the second and third causes of action. Atty. Catalan relies on Rule 6.03 which states that "A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he had intervened while in said service." Atty. Silvosa, on the hand, relies on Rule 2.01 which provides that "A lawyer shall not reject, except for valid reasons the cause of the defenseless or the oppressed" and on Canon 14 which provides that "A lawyer shall not refuse his services to the needy." We agree with Comm. Funa’s finding that Atty. Silvosa violated Rule 6.03. When he entered his appearance on the Motion to Post Bail Bond Pending Appeal, Atty. Silvosa conveniently forgot Rule 15.03 which provides that "A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of facts." Atty. Silvosa’s attempts to minimize his involvement in the same case on two occasions can only be described as desperate. He claims his participation as public prosecutor was only to appear in the arraignment and in the pre-trial conference. He likewise claims his subsequent participation as collaborating counsel was limited only to the reinstatement of the original bail. Atty. Silvosa will do well to take heed of our ruling in Hilado v. David:4 An attorney is employed — that is, he is engaged in his professional capacity as a lawyer or counselor — when he is listening to his client’s preliminary statement of his case, or when he is giving advice thereon, just as truly as when he is drawing his client’s pleadings, or advocating his client’s pleadings, or advocating his client’s cause in open court. xxxx 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, on 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.

persons having personal knowledge of the facts therein alleged and/or by such documents as may substantiate said facts.

Indeed, the prohibition against representation of conflicting interests applies although the attorney’s intentions were honest and he acted in good faith.5

xxxx

Atty. Silvosa denies Pros. Toribio’s accusation of bribery and casts doubt on its veracity by emphasizing the delay in presenting a complaint before the IBP. Comm. Funa, by stating that there is difficulty in ascertaining the veracity of the facts with certainty, in effect agreed with Atty. Silvosa. Contrary to Comm. Funa’s ruling, however, the records show that Atty. Silvosa made an attempt to bribe Pros. Toribio and failed. Pros. Toribio executed her affidavit on 14 June 1999, a day after the failed bribery attempt, and had it notarized by Atty. Nemesio Beltran, then President of the IBP-Bukidnon Chapter. There was no reason for Pros. Toribio to make false testimonies against Atty. Silvosa. Atty. Silvosa, on the other hand, merely denied the accusation and dismissed it as persecution. When the integrity of a member of the bar is challenged, it is not enough that he denies the charges against him. He must meet the issue and overcome the evidence against him. He must show proof that he still maintains that degree of morality and integrity which at all times is expected of him.6 Atty. Silvosa failed in this respect. Unfortunately for Atty. Silvosa, mere delay in the filing of an administrative complaint against a member of the bar does not automatically exonerate a respondent. Administrative offenses do not prescribe. No matter how much time has elapsed from the time of the commission of the act complained of and the time of the institution of the complaint, erring members of the bench and bar cannot escape the disciplining arm of the Court.7 We disagree with Comm. Funa’s ruling that the findings in a criminal proceeding are not binding in a disbarment proceeding. First, disbarment proceedings may be initiated by any interested person. There can be no doubt of the right of a citizen to bring to the attention of the proper authority acts and doings of public officers which a citizen feels are incompatible with the duties of the office and from which conduct the public might or does suffer undesirable consequences.8 Section 1, Rule 139-B reads: Section 1. How Instituted. – Proceedings for the disbarment, suspension, or discipline of attorneys may be taken by the Supreme Court motu proprio, or by the Integrated Bar of the Philippines (IBP) upon the verified complaint of any person. The complaint shall state clearly and concisely the facts complained of and shall be supported by affidavits of

The IBP Board of Governors may, motu proprio or upon referral by the Supreme Court or by a Chapter Board of Officers, or at the instance of any person, initiate and prosecute proper charges against erring attorneys including those in government service.

It is of no moment that Atty. Catalan is not the complainant in Criminal Case No. 27776, and that Lanticse, the complainant therein, was not presented as a witness in the present case. There is no doubt that the Sandiganbayan’s judgment in Criminal Case No. 27776 is a matter of public record and is already final. Atty. Catalan supported his allegation by submitting documentary evidence of the Sandiganbayan’s decision in Criminal Case No. 27776. Atty. Silvosa himself admitted, against his interest, that he is under probation. Second, conviction of a crime involving moral turpitude is a ground for disbarment. Moral turpitude is defined as an act of baseness, vileness, or depravity in the private duties which a man owes to his fellow men, or to society in general, contrary to justice, honesty, modesty, or good morals.9 Section 27, Rule 138 provides: Section 27. Disbarment or suspension of attorneys by Supreme Court; grounds therefor. – A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a willful disobedience of any lawful order of a superior court, or for corruptly or willfully appearing as an attorney for a party to a case without authority so to do. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice. (Emphasis supplied) In a disbarment case, this Court will no longer review a final judgment of conviction. 10 Third, the crime of direct bribery is a crime involving moral turpitude. In Magno v. COMELEC,11 we ruled: By applying for probation, petitioner in effect admitted all the elements of the crime of direct bribery: 1. the offender is a public officer; 2. the offender accepts an offer or promise or receives a gift or present by himself or through another;

3. such offer or promise be accepted or gift or present be received by the public officer with a view to committing some crime, or in consideration of the execution of an act which does not constitute a crime but the act must be unjust, or to refrain from doing something which it is his official duty to do; and 4. the act which the offender agrees to perform or which he executes is connected with the performance of his official duties. Moral turpitude can be inferred from the third element. The fact that the offender agrees to accept a promise or gift and deliberately commits an unjust act or refrains from performing an official duty in exchange for some favors, denotes a malicious intent on the part of the offender to renege on the duties which he owes his fellowmen and society in general. Also, the fact that the offender takes advantage of his office and position is a betrayal of the trust reposed on him by the public. It is a conduct clearly contrary to the accepted rules of right and duty, justice, honesty and good morals. In all respects, direct bribery is a crime involving moral turpitude. (Italicization in the original) Atty. Silvosa’s representation of conflicting interests and his failed attempt at bribing Pros. Toribio merit at least the penalty of suspension.1âwphi1 Atty. Silvosa’s final conviction of the crime of direct bribery clearly falls under one of the grounds for disbarment under Section 27 of Rule 138. Disbarment follows as a consequence of Atty. Silvosa’s conviction of the crime. We are constrained to impose a penalty more severe than suspension because we find that Atty. Silvosa is predisposed to flout the exacting standards of morality and decency required of a member of the Bar. His excuse that his conviction was not in his capacity as a lawyer, but as a public officer, is unacceptable and betrays the unmistakable lack of integrity in his character. The practice of law is a privilege, and Atty. Silvosa has proved himself unfit to exercise this privilege. WHEREFORE, respondent Atty. Joselito M. Silvosa is hereby DISBARRED and his name ORDERED STRICKEN from the Roll of Attorneys. Let a copy of this Decision be furnished to the Office of the Bar Confidant, to be appended to respondent’s personal record as attorney. Likewise, copies shall be furnished to the Integrated Bar of the Philippines and to the Office of the Court Administration for circulation to all courts in the country. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila

1st MIJI Mansion, 2nd Flr. Rm. M-01 6th Ave., cor M.H. Del Pilar Grace Park, Caloocan City

Tel: 362-7820 Fax: (632) 362-7821 Cel.: (0926) 2701719

FIRST DIVISION A.C. No. 6672

September 4, 2009

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PEDRO L. LINSANGAN, Complainant, vs. ATTY. NICOMEDES TOLENTINO, Respondent. RESOLUTION CORONA, J.: This is a complaint for disbarment1 filed by Pedro Linsangan of the Linsangan Linsangan & Linsangan Law Office against Atty. Nicomedes Tolentino for solicitation of clients and encroachment of professional services. Complainant alleged that respondent, with the help of paralegal Fe Marie Labiano, convinced his clients2 to transfer legal representation. Respondent promised them financial assistance3 and expeditious collection on their claims.4To induce them to hire his services, he persistently called them and sent them text messages. To support his allegations, complainant presented the sworn affidavit 5 of James Gregorio attesting that Labiano tried to prevail upon him to sever his lawyer-client relations with complainant and utilize respondent’s services instead, in exchange for a loan of ₱50,000. Complainant also attached "respondent’s" calling card:6 Front

SERVICES OFFERED: CONSULTATION AND ASSISTANCE TO OVERSEAS SEAMEN REPATRIATED DUE TO ACCIDENT, INJURY, ILLNESS, SICKNESS, DEATH AND INSURANCE BENEFIT CLAIMS ABROAD. 1avvphi1

(emphasis supplied) Hence, this complaint. Respondent, in his defense, denied knowing Labiano and authorizing the printing and circulation of the said calling card.7 The complaint was referred to the Commission on Bar Discipline (CBD) of the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.8

NICOMEDES TOLENTINO LAW OFFFICE CONSULTANCY & MARITIME SERVICES W/ FINANCIAL ASSISTANCE Fe Marie L. Labiano Paralegal

Based on testimonial and documentary evidence, the CBD, in its report and recommendation,9 found that respondent had encroached on the professional practice of complainant, violating Rule 8.0210 and other canons11of the Code of Professional Responsibility (CPR). Moreover, he contravened the rule against soliciting cases for gain, personally or through paid agents or brokers as stated in Section 27, Rule 13812 of the Rules of Court. Hence, the CBD recommended that respondent be reprimanded with a stern warning that any repetition would merit a heavier penalty. We adopt the findings of the IBP on the unethical conduct of respondent but we modify the recommended penalty.

The complaint before us is rooted on the alleged intrusion by respondent into complainant’s professional practice in violation of Rule 8.02 of the CPR. And the means employed by respondent in furtherance of the said misconduct themselves constituted distinct violations of ethical rules. Canons of the CPR are rules of conduct all lawyers must adhere to, including the manner by which a lawyer’s services are to be made known. Thus, Canon 3 of the CPR provides: CANON 3 - A lawyer in making known his legal services shall use only true, honest, fair, dignified and objective information or statement of facts. Time and time again, lawyers are reminded that the practice of law is a profession and not a business; lawyers should not advertise their talents as merchants advertise their wares.13 To allow a lawyer to advertise his talent or skill is to commercialize the practice of law, degrade the profession in the public’s estimation and impair its ability to efficiently render that high character of service to which every member of the bar is called.14 Rule 2.03 of the CPR provides: RULE 2.03. A lawyer shall not do or permit to be done any act designed primarily to solicit legal business. Hence, lawyers are prohibited from soliciting cases for the purpose of gain, either personally or through paid agents or brokers.15 Such actuation constitutes malpractice, a ground for disbarment.16 Rule 2.03 should be read in connection with Rule 1.03 of the CPR which provides: RULE 1.03. A lawyer shall not, for any corrupt motive or interest, encourage any suit or proceeding or delay any man’s cause. This rule proscribes "ambulance chasing" (the solicitation of almost any kind of legal business by an attorney, personally or through an agent in order to gain employment) 17 as a measure to protect the community from barratry and champerty.18

Based on the foregoing, respondent clearly solicited employment violating Rule 2.03, and Rule 1.03 and Canon 3 of the CPR and Section 27, Rule 138 of the Rules of Court.1avvphi1 With regard to respondent’s violation of Rule 8.02 of the CPR, settled is the rule that a lawyer should not steal another lawyer’s client nor induce the latter to retain him by a promise of better service, good result or reduced fees for his services.20 Again the Court notes that respondent never denied having these seafarers in his client list nor receiving benefits from Labiano’s "referrals." Furthermore, he never denied Labiano’s connection to his office.21Respondent committed an unethical, predatory overstep into another’s legal practice. He cannot escape liability under Rule 8.02 of the CPR. Moreover, by engaging in a money-lending venture with his clients as borrowers, respondent violated Rule 16.04: Rule 16.04 – A lawyer shall not borrow money from his client unless the client’s interests are fully protected by the nature of the case or by independent advice. Neither shall a lawyer lend money to a client except, when in the interest of justice, he has to advance necessary expenses in a legal matter he is handling for the client. The rule is that a lawyer shall not lend money to his client. The only exception is, when in the interest of justice, he has to advance necessary expenses (such as filing fees, stenographer’s fees for transcript of stenographic notes, cash bond or premium for surety bond, etc.) for a matter that he is handling for the client. The rule is intended to safeguard the lawyer’s independence of mind so that the free exercise of his judgment may not be adversely affected.22 It seeks to ensure his undivided attention to the case he is handling as well as his entire devotion and fidelity to the client’s cause. If the lawyer lends money to the client in connection with the client’s case, the lawyer in effect acquires an interest in the subject matter of the case or an additional stake in its outcome.23Either of these circumstances may lead the lawyer to consider his own recovery rather than that of his client, or to accept a settlement which may take care of his interest in the verdict to the prejudice of the client in violation of his duty of undivided fidelity to the client’s cause.24

Although respondent initially denied knowing Labiano in his answer, he later admitted it during the mandatory hearing.

As previously mentioned, any act of solicitation constitutes malpractice 25 which calls for the exercise of the Court’s disciplinary powers. Violation of anti-solicitation statutes warrants serious sanctions for initiating contact with a prospective client for the purpose of obtaining employment.26 Thus, in this jurisdiction, we adhere to the rule to protect the public from the Machiavellian machinations of unscrupulous lawyers and to uphold the nobility of the legal profession.

Through Labiano’s actions, respondent’s law practice was benefited. Hapless seamen were enticed to transfer representation on the strength of Labiano’s word that respondent could produce a more favorable result.

Considering the myriad infractions of respondent (including violation of the prohibition on lending money to clients), the sanction recommended by the IBP, a mere reprimand, is a wimpy slap on the wrist. The proposed penalty is grossly incommensurate to its findings.

Complainant presented substantial evidence19 (consisting of the sworn statements of the very same persons coaxed by Labiano and referred to respondent’s office) to prove that respondent indeed solicited legal business as well as profited from referrals’ suits.

A final word regarding the calling card presented in evidence by petitioner. A lawyer’s best advertisement is a well-merited reputation for professional capacity and fidelity to trust based on his character and conduct.27 For this reason, lawyers are only allowed to announce their services by publication in reputable law lists or use of simple professional cards. Professional calling cards may only contain the following details: (a) lawyer’s name; (b) name of the law firm with which he is connected; (c) address; (d) telephone number and (e) special branch of law practiced.28 Labiano’s calling card contained the phrase "with financial assistance." The phrase was clearly used to entice clients (who already had representation) to change counsels with a promise of loans to finance their legal actions. Money was dangled to lure clients away from their original lawyers, thereby taking advantage of their financial distress and emotional vulnerability. This crass commercialism degraded the integrity of the bar and deserved no place in the legal profession. However, in the absence of substantial evidence to prove his culpability, the Court is not prepared to rule that respondent was personally and directly responsible for the printing and distribution of Labiano’s calling cards. WHEREFORE, respondent Atty. Nicomedes Tolentino for violating Rules 1.03, 2.03, 8.02 and 16.04 and Canon 3 of the Code of Professional Responsibility and Section 27, Rule 138 of the Rules of Court is hereby SUSPENDEDfrom the practice of law for a period of one year effective immediately from receipt of this resolution. He is STERNLY WARNED that a repetition of the same or similar acts in the future shall be dealt with more severely. Let a copy of this Resolution be made part of his records in the Office of the Bar Confidant, Supreme Court of the Philippines, and be furnished to the Integrated Bar of the Philippines and the Office of the Court Administrator to be circulated to all courts. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 198075

September 4, 2013

KOPPEL, INC. (formerly known as KPL AIRCON, INC.), Petitioner, vs. MAKATI ROTARY CLUB FOUNDATION, INC., Respondent. DECISION PEREZ, J.: This case is an appeal1 from the Decision2 dated 19 August 2011 of the Court of Appeals in C.A.-G.R. SP No. 116865. The facts: The Donation

2. The amount of rent to be paid by FKI for the first twenty-five (25) years is ₱40,126.00 per annum .11 The Deed of Donation also stipulated that the lease over the subject property is renewable for another period of twenty-five (25) years " upon mutual agreement" of FKI and the respondent.12 In which case, the amount of rent shall be determined in accordance with item 2(g) of the Deed of Donation, viz: g. The rental for the second 25 years shall be the subject of mutual agreement and in case of disagreement the matter shall be referred to a Board of three Arbitrators appointed and with powers in accordance with the Arbitration Law of the Philippines, Republic Act 878, whose function shall be to decide the current fair market value of the land excluding the improvements, provided, that, any increase in the fair market value of the land shall not exceed twenty five percent (25%) of the original value of the land donated as stated in paragraph 2(c) of this Deed. The rental for the second 25 years shall not exceed three percent (3%) of the fair market value of the land excluding the improvements as determined by the Board of Arbitrators.13 In October 1976, FKI and the respondent executed an Amended Deed of Donation14 that reiterated the provisions of the Deed of Donation , including those relating to the lease of the subject land.

Fedders Koppel, Incorporated (FKI), a manufacturer of air-conditioning products, was the registered owner of a parcel of land located at Km. 16, South Superhighway, Parañaque City (subject land).3 Within the subject land are buildings and other improvements dedicated to the business of FKI.4

Verily, by virtue of the lease agreement contained in the Deed of Donation and Amended Deed of Donation , FKI was able to continue in its possession and use of the subject land.

In 1975, FKI5 bequeathed the subject land (exclusive of the improvements thereon) in favor of herein respondent Makati Rotary Club Foundation, Incorporated by way of a conditional donation.6 The respondent accepted the donation with all of its conditions.7 On 26 May1975, FKI and the respondent executed a Deed of Donation8evidencing their consensus.

Two (2) days before the lease incorporated in the Deed of Donation and Amended Deed of Donation was set to expire, or on 23 May 2000, FKI and respondent executed another contract of lease ( 2000 Lease Contract )15covering the subject land. In this 2000 Lease Contract, FKI and respondent agreed on a new five-year lease to take effect on the 26th of May 2000, with annual rents ranging from ₱4,000,000 for the first year up to ₱4,900,000 for the fifth year.16 The 2000 Lease Contract also contained an arbitration clause enforceable in the event the parties come to disagreement about the" interpretation, application and execution" of the lease, viz :

The Lease and the Amended Deed of Donation One of the conditions of the donation required the respondent to lease the subject land back to FKI under terms specified in their Deed of Donation.9 With the respondent’s acceptance of the donation, a lease agreement between FKI and the respondent was, therefore, effectively incorporated in the Deed of Donation. Pertinent terms of such lease agreement, as provided in the Deed of Donation , were as follows: 1. The period of the lease is for twenty-five (25) years,10 or until the 25th of May 2000;

2000 Lease Contract

19. Governing Law – The provisions of this 2000 Lease Contract shall be governed, interpreted and construed in all aspects in accordance with the laws of the Republic of the Philippines. Any disagreement as to the interpretation, application or execution of this 2000 Lease Contract shall be submitted to a board of three (3) arbitrators constituted in accordance with the arbitration law of the Philippines. The decision of the majority of the arbitrators shall be binding upon FKI and respondent.17 (Emphasis supplied)

2005 Lease Contract After the 2000 Lease Contract expired, FKI and respondent agreed to renew their lease for another five (5) years. This new lease (2005 Lease Contract )18 required FKI to pay a fixed annual rent of ₱4,200,000.19 In addition to paying the fixed rent, however, the 2005 Lease Contract also obligated FKI to make a yearly " donation " of money to the respondent.20 Such donations ranged from ₱3,000,000 for the first year up to ₱3,900,000for the fifth year.21Notably, the 2005 Lease Contract contained an arbitration clause similar to that in the 2000 Lease Contract, to wit: 19. Governing Law – The provisions of this 2005 Lease Contract shall be governed, interpreted and construed in all aspects in accordance with the laws of the Republic of the Philippines.

Petitioner points out that while a definite amount of rent for the second twenty-five (25) year lease was not fixed in the Deed of Donation and Amended Deed of Donation , both deeds nevertheless prescribed rules and limitations by which the same may be determined. Such rules and limitations ought to be observed in any succeeding lease agreements between petitioner and respondent for they are, in themselves, material conditions of the donation of the subject land.28 In this connection, petitioner cites item 2(g) of the Deed of Donation and Amended Deed of Donation that supposedly limits the amount of rent for the lease over the second twenty-five (25) years to only " three percent (3%) of the fair market value of the subject land excluding the improvements.29

Any disagreement as to the interpretation, application or execution of this 2005 Lease Contract shall be submitted to a board of three (3) arbitrators constituted in accordance with the arbitration law of the Philippines. The decision of the majority of the arbitrators shall be binding upon FKI and respondent.22 (Emphasis supplied)

For petitioner then, the rental stipulations of both the 2000 Lease Contract and 2005 Lease Contract cannot be enforced as they are clearly, in view of their exorbitant exactions, in violation of the aforementioned threshold in item 2(g) of the Deed of Donation and Amended Deed of Donation . Consequently, petitioner insists that the amount of rent it has to pay thereon is and must still be governed by the limitations prescribed in the Deed of Donation and Amended Deed of Donation.30

The Assignment and Petitioner’s Refusal to Pay

The Demand Letters

From 2005 to 2008, FKI faithfully paid the rentals and " donations "due it per the 2005 Lease Contract.23 But in June of 2008, FKI sold all its rights and properties relative to its business in favor of herein petitioner Koppel, Incorporated.24 On 29 August 2008, FKI and petitioner executed an Assignment and Assumption of Lease and Donation25 —wherein FKI, with the conformity of the respondent, formally assigned all of its interests and obligations under the Amended Deed of Donation and the 2005 Lease Contract in favor of petitioner.

On 1 June 2009, respondent sent a letter (First Demand Letter)31 to petitioner notifying the latter of its default " per Section 12 of the 2005 Lease Contract " and demanding for the settlement of the rent and " donation " due for the year 2009. Respondent, in the same letter, further intimated of canceling the 2005 Lease Contract should petitioner fail to settle the said obligations.32 Petitioner received the First Demand Letter on2 June 2009.33

The following year, petitioner discontinued the payment of the rent and " donation " under the 2005 Lease Contract. Petitioner’s refusal to pay such rent and "donation " emanated from its belief that the rental stipulations of the 2005 Lease Contract, and even of the 2000 Lease Contract, cannot be given effect because they violated one of the" material conditions " of the donation of the subject land, as stated in the Deed of Donation and Amended Deed of Donation.26 According to petitioner, the Deed of Donation and Amended Deed of Donation actually established not only one but two (2) lease agreements between FKI and respondent, i.e. , one lease for the first twenty-five (25)years or from 1975 to 2000, and another lease for the next twenty-five (25)years thereafter or from 2000 to 2025. 27 Both leases are material conditions of the donation of the subject land.

On 22 September 2009, petitioner sent a reply34 to respondent expressing its disagreement over the rental stipulations of the 2005 Lease Contract — calling them " severely disproportionate," "unconscionable" and "in clear violation to the nominal rentals mandated by the Amended Deed of Donation." In lieu of the amount demanded by the respondent, which purportedly totaled to ₱8,394,000.00, exclusive of interests, petitioner offered to pay only ₱80,502.79,35 in accordance with the rental provisions of the Deed of Donation and Amended Deed of Donation.36Respondent refused this offer.37 On 25 September 2009, respondent sent another letter (Second Demand Letter) 38 to petitioner, reiterating its demand for the payment of the obligations already due under the 2005 Lease Contract. The Second Demand Letter also contained a demand for petitioner to " immediately vacate the leased premises " should it fail to pay such obligations within seven (7) days from its receipt of the letter.39 The respondent warned of taking " legal steps " in the event that petitioner failed to comply with any of the said demands.40 Petitioner received the Second Demand Letter on 26September 2009.41

Petitioner refused to comply with the demands of the respondent. Instead, on 30 September 2009, petitioner filed with the Regional Trial Court (RTC) of Parañaque City a complaint42 for the rescission or cancellation of the Deed of Donation and Amended Deed of Donation against the respondent. This case is currently pending before Branch 257 of the RTC, docketed as Civil Case No. CV 09-0346.

insufficiency of the respondent’s demand and the nullity of the 2005 Lease Contract.54 The MeTC thus disposed:

The Ejectment Suit

SO ORDERED.55

On 5 October 2009, respondent filed an unlawful detainer case43 against the petitioner before the Metropolitan Trial Court (MeTC) of Parañaque City. The ejectment case was raffled to Branch 77 and was docketed as Civil Case No. 2009-307.

The respondent appealed to the Regional Trial Court (RTC). This appeal was assigned to Branch 274 of the RTC of Parañaque City and was docketed as Civil Case No. 10-0255.

On 4 November 2009, petitioner filed an Answer with Compulsory Counterclaim. 44 In it, petitioner reiterated its objection over the rental stipulations of the 2005 Lease Contract for being violative of the material conditions of the Deed of Donation and Amended Deed of Donation.45 In addition to the foregoing, however, petitioner also interposed the following defenses: 1. The MeTC was not able to validly acquire jurisdiction over the instant unlawful detainer case in view of the insufficiency of respondent’s demand.46 The First Demand Letter did not contain an actual demand to vacate the premises and, therefore, the refusal to comply there with does not give rise to an action for unlawful detainer.47 2. Assuming that the MeTC was able to acquire jurisdiction, it may not exercise the same until the disagreement between the parties is first referred to arbitration pursuant to the arbitration clause of the 2005 Lease Contract.48 3. Assuming further that the MeTC has jurisdiction that it can exercise, ejectment still would not lie as the 2005 Lease Contract is void abinitio.49 The stipulation in the 2005 Lease Contract requiring petitioner to give yearly " donations " to respondent is a simulation, for they are, in fact, parts of the rent. 50 Such grants were only denominated as " donations " in the contract so that the respondent—anon-stock and non-profit corporation—could evade payment of the taxes otherwise due thereon.51 In due course, petitioner and respondent both submitted their position papers, together with their other documentary evidence.52 Remarkably, however, respondent failed to submit the Second Demand Letter as part of its documentary evidence. Rulings of the MeTC, RTC and Court of Appeals On 27 April 2010, the MeTC rendered judgment53 in favor of the petitioner. While the MeTC refused to dismiss the action on the ground that the dispute is subject to arbitration, it nonetheless sided with the petitioner with respect to the issues regarding the

WHEREFORE, judgment is hereby rendered dismissing the case x x x, without pronouncement as to costs.

On 29 October 2010, the RTC reversed56 the MeTC and ordered the eviction of the petitioner from the subject land: WHEREFORE, all the foregoing duly considered, the appealed Decision of the Metropolitan Trial Court, Branch 77, Parañaque City, is hereby reversed, judgment is thus rendered in favor of the plaintiff-appellant and against the defendant-appellee, and ordering the latter – (1) to vacate the lease[d] premises made subject of the case and to restore the possession thereof to the plaintiff-appellant; (2) to pay to the plaintiff-appellant the amount of Nine Million Three Hundred Sixty Two Thousand Four Hundred Thirty Six Pesos (₱9,362,436.00), penalties and net of 5% withholding tax, for the lease period from May 25, 2009 to May 25, 2010 and such monthly rental as will accrue during the pendency of this case; (3) to pay attorney’s fees in the sum of ₱100,000.00 plus appearance fee of ₱3,000.00; (4) and costs of suit. As to the existing improvements belonging to the defendant-appellee, as these were built in good faith, the provisions of Art. 1678of the Civil Code shall apply. SO ORDERED.57 The ruling of the RTC is premised on the following ratiocinations: 1. The respondent had adequately complied with the requirement of demand as a jurisdictional precursor to an unlawful detainer action.58 The First Demand Letter, in substance, contains a demand for petitioner to vacate when it mentioned that it was a notice " per Section12 of the 2005 Lease Contract."59 Moreover, the issue of sufficiency of the respondent’s demand ought to have been laid to rest by the Second Demand Letter which, though not submitted in evidence, was nonetheless admitted by petitioner as containing a" demand to eject " in its Answer with Compulsory Counterclaim.60

2. The petitioner cannot validly invoke the arbitration clause of the 2005 Lease Contract while, at the same time, impugn such contract’s validity.61 Even assuming that it can, petitioner still did not file a formal application before the MeTC so as to render such arbitration clause operational.62 At any rate, the MeTC would not be precluded from exercising its jurisdiction over an action for unlawful detainer, over which, it has exclusive original jurisdiction.63 3. The 2005 Lease Contract must be sustained as a valid contract since petitioner was not able to adduce any evidence to support its allegation that the same is void.64 There was, in this case, no evidence that respondent is guilty of any tax evasion.65 Aggrieved, the petitioner appealed to the Court of Appeals. On 19 August 2011, the Court of Appeals affirmed66 the decision of the RTC: WHEREFORE , the petition is DENIED . The assailed Decision of the Regional Trial Court of Parañaque City, Branch 274, in Civil Case No. 10-0255 is AFFIRMED. xxxx SO ORDERED.67 Hence, this appeal. On 5 September 2011, this Court granted petitioner’s prayer for the issuance of a Temporary Restraining Order68staying the immediate implementation of the decisions adverse to it. OUR RULING Independently of the merits of the case, the MeTC, RTC and Court of Appeals all erred in overlooking the significance of the arbitration clause incorporated in the 2005 Lease Contract . As the Court sees it, that is a fatal mistake. For this reason, We grant the petition. Present Dispute is Arbitrable Under the Arbitration Clause of the 2005 Lease Agreement Contract Going back to the records of this case, it is discernable that the dispute between the petitioner and respondent emanates from the rental stipulations of the 2005 Lease Contract. The respondent insists upon the enforce ability and validity of such stipulations, whereas, petitioner, in substance, repudiates them. It is from petitioner’s apparent breach of the 2005 Lease Contract that respondent filed the instant unlawful detainer action.

One cannot escape the conclusion that, under the foregoing premises, the dispute between the petitioner and respondent arose from the application or execution of the 2005 Lease Contract . Undoubtedly, such kinds of dispute are covered by the arbitration clause of the 2005 Lease Contract to wit: 19. Governing Law – The provisions of this 2005 Lease Contract shall be governed, interpreted and construed in all aspects in accordance with the laws of the Republic of the Philippines. Any disagreement as to the interpretation, application or execution of this 2005 Lease Contract shall be submitted to a board of three (3) arbitrators constituted in accordance with the arbitration law of the Philippines. The decision of the majority of the arbitrators shall be binding upon FKI and respondent.69 (Emphasis supplied) The arbitration clause of the 2005 Lease Contract stipulates that "any disagreement" as to the " interpretation, application or execution " of the 2005 Lease Contract ought to be submitted to arbitration.70 To the mind of this Court, such stipulation is clear and is comprehensive enough so as to include virtually any kind of conflict or dispute that may arise from the 2005 Lease Contract including the one that presently besets petitioner and respondent. The application of the arbitration clause of the 2005 Lease Contract in this case carries with it certain legal effects. However, before discussing what these legal effects are, We shall first deal with the challenges posed against the application of such arbitration clause. Challenges Against the Application of the Arbitration Clause of the 2005 Lease Contract Curiously, despite the lucidity of the arbitration clause of the 2005 Lease Contract, the petitioner, as well as the MeTC, RTC and the Court of Appeals, vouched for the nonapplication of the same in the instant case. A plethora of arguments was hurled in favor of bypassing arbitration. We now address them. At different points in the proceedings of this case, the following arguments were offered against the application of the arbitration clause of the 2005 Lease Contract: 1. The disagreement between the petitioner and respondent is non-arbitrable as it will inevitably touch upon the issue of the validity of the 2005 Lease Contract.71 It was submitted that one of the reasons offered by the petitioner in justifying its failure to pay under the 2005 Lease Contract was the nullity of such contract for being contrary to law and public policy.72 The Supreme Court, in Gonzales v. Climax Mining, Ltd.,73 held that " the validity of contract cannot be subject of arbitration proceedings " as such questions

are " legal in nature and require the application and interpretation of laws and jurisprudence which is necessarily a judicial function ." 74 2. The petitioner cannot validly invoke the arbitration clause of the 2005 Lease Contract while, at the same time, impugn such contract’s validity.75 3. Even assuming that it can invoke the arbitration clause whilst denying the validity of the 2005 Lease Contract , petitioner still did not file a formal application before the MeTC so as to render such arbitration clause operational.76 Section 24 of Republic Act No. 9285 requires the party seeking arbitration to first file a " request " or an application therefor with the court not later than the preliminary conference.77 4. Petitioner and respondent already underwent Judicial Dispute Resolution (JDR) proceedings before the RTC.78 Hence, a further referral of the dispute to arbitration would only be circuitous.79 Moreover, an ejectment case, in view of its summary nature, already fulfills the prime purpose of arbitration, i.e. , to provide parties in conflict with an expedient method for the resolution of their dispute.80 Arbitration then would no longer be necessary in this case.81 None of the arguments have any merit. First. As highlighted in the previous discussion, the disagreement between the petitioner and respondent falls within the all-encompassing terms of the arbitration clause of the 2005 Lease Contract. While it may be conceded that in the arbitration of such disagreement, the validity of the 2005 Lease Contract, or at least, of such contract’s rental stipulations would have to be determined, the same would not render such disagreement non-arbitrable. The quotation from Gonzales that was used to justify the contrary position was taken out of context. A rereading of Gonzales would fix its relevance to this case. In Gonzales, a complaint for arbitration was filed before the Panel of Arbitrators of the Mines and Geosciences Bureau (PA-MGB) seeking the nullification of a Financial Technical Assistance Agreement and other mining related agreements entered into by private parties.82 Grounds invoked for the nullification of such agreements include fraud and unconstitutionality.83 The pivotal issue that confronted the Court then was whether the PAMGB has jurisdiction over that particular arbitration complaint. Stated otherwise, the question was whether the complaint for arbitration raises arbitrable issues that the PAMGB can take cognizance of. Gonzales decided the issue in the negative. In holding that the PA-MGB was devoid of any jurisdiction to take cognizance of the complaint for arbitration, this Court pointed out to the provisions of R.A. No. 7942, or the Mining Act of 1995, which granted the PA-MGB with exclusive original jurisdiction only over mining disputes, i.e., disputes involving " rights to

mining areas," "mineral agreements or permits," and " surface owners, occupants, claim holders or concessionaires" requiring the technical knowledge and experience of mining authorities in order to be resolved.84 Accordingly, since the complaint for arbitration in Gonzales did not raise mining disputes as contemplated under R.A. No. 7942 but only issues relating to the validity of certain mining related agreements, this Court held that such complaint could not be arbitrated before the PA-MGB.85 It is in this context that we made the pronouncement now in discussion: Arbitration before the Panel of Arbitrators is proper only when there is a disagreement between the parties as to some provisions of the contract between them, which needs the interpretation and the application of that particular knowledge and expertise possessed by members of that Panel. It is not proper when one of the parties repudiates the existence or validity of such contract or agreement on the ground of fraud or oppression as in this case. The validity of the contract cannot be subject of arbitration proceedings. Allegations of fraud and duress in the execution of a contract are matters within the jurisdiction of the ordinary courts of law. These questions are legal in nature and require the application and interpretation of laws and jurisprudence which is necessarily a judicial function.86(Emphasis supplied) The Court in Gonzales did not simply base its rejection of the complaint for arbitration on the ground that the issue raised therein, i.e. , the validity of contracts, is per se nonarbitrable. The real consideration behind the ruling was the limitation that was placed by R.A. No. 7942 upon the jurisdiction of the PA-MGB as an arbitral body . Gonzales rejected the complaint for arbitration because the issue raised therein is not a mining dispute per R.A. No. 7942 and it is for this reason, and only for this reason, that such issue is rendered non-arbitrable before the PA-MGB. As stated beforehand, R.A. No. 7942 clearly limited the jurisdiction of the PA-MGB only to mining disputes.87 Much more instructive for our purposes, on the other hand, is the recent case of Cargill Philippines, Inc. v. San Fernando Regal Trading, Inc.88 In Cargill , this Court answered the question of whether issues involving the rescission of a contract are arbitrable. The respondent in Cargill argued against arbitrability, also citing therein Gonzales . After dissecting Gonzales , this Court ruled in favor of arbitrability.89 Thus, We held: Respondent contends that assuming that the existence of the contract and the arbitration clause is conceded, the CA's decision declining referral of the parties' dispute to arbitration is still correct. It claims that its complaint in the RTC presents the issue of whether under the facts alleged, it is entitled to rescind the contract with damages; and that issue constitutes a judicial question or one that requires the exercise of judicial function and cannot be the subject of an arbitration proceeding. Respondent cites our ruling in Gonzales, wherein we held that a panel of arbitrator is bereft of jurisdiction over the complaint for declaration of nullity/or termination of the subject contracts on the grounds of fraud and oppression attendant to the execution of the addendum contract and the

other contracts emanating from it, and that the complaint should have been filed with the regular courts as it involved issues which are judicial in nature.

conference. After the pre-trial conference, the court will only act upon the request for referral if it is made with the agreement of all parties to the case.

Such argument is misplaced and respondent cannot rely on the Gonzales case to support its argument.90(Emphasis ours)

(B) Submission agreement . - If there is no existing arbitration agreement at the time the case is filed but the parties subsequently enter into an arbitration agreement, they may request the court to refer their dispute to arbitration at any time during the proceedings.

Second. Petitioner may still invoke the arbitration clause of the 2005 Lease Contract notwithstanding the fact that it assails the validity of such contract. This is due to the doctrine of separability.91 Under the doctrine of separability, an arbitration agreement is considered as independent of the main contract.92Being a separate contract in itself, the arbitration agreement may thus be invoked regardless of the possible nullity or invalidity of the main contract.93 Once again instructive is Cargill, wherein this Court held that, as a further consequence of the doctrine of separability, even the very party who repudiates the main contract may invoke its arbitration clause.94 Third . The operation of the arbitration clause in this case is not at all defeated by the failure of the petitioner to file a formal "request" or application therefor with the MeTC. We find that the filing of a "request" pursuant to Section 24 of R.A. No. 9285 is not the sole means by which an arbitration clause may be validly invoked in a pending suit. Section 24 of R.A. No. 9285 reads: SEC. 24. Referral to Arbitration . - A court before which an action is brought in a matter which is the subject matter of an arbitration agreement shall, if at least one party so requests not later that the pre-trial conference, or upon the request of both parties thereafter, refer the parties to arbitration unless it finds that the arbitration agreement is null and void, inoperative or incapable of being performed. [Emphasis ours; italics original] The " request " referred to in the above provision is, in turn, implemented by Rules 4.1 to 4.3 of A.M. No. 07-11-08-SC or the Special Rules of Court on Alternative Dispute Resolution (Special ADR Rules): RULE 4: REFERRAL TO ADR Rule 4.1. Who makes the request. - A party to a pending action filed in violation of the arbitration agreement, whether contained in an arbitration clause or in a submission agreement, may request the court to refer the parties to arbitration in accordance with such agreement. Rule 4.2.When to make request. - (A) Where the arbitration agreement exists before the action is filed . - The request for referral shall be made not later than the pre-trial

Rule 4.3.Contents of request. - The request for referral shall be in the form of a motion, which shall state that the dispute is covered by an arbitration agreement. A part from other submissions, the movant shall attach to his motion an authentic copy of the arbitration agreement. The request shall contain a notice of hearing addressed to all parties specifying the date and time when it would be heard. The party making the request shall serve it upon the respondent to give him the opportunity to file a comment or opposition as provided in the immediately succeeding Rule before the hearing. [Emphasis ours; italics original] Attention must be paid, however, to the salient wordings of Rule 4.1.It reads: "a party to a pending action filed in violation of the arbitration agreement x x x may request the court to refer the parties to arbitration in accordance with such agreement." In using the word " may " to qualify the act of filing a " request " under Section 24 of R.A. No. 9285, the Special ADR Rules clearly did not intend to limit the invocation of an arbitration agreement in a pending suit solely via such "request." After all, non-compliance with an arbitration agreement is a valid defense to any offending suit and, as such, may even be raised in an answer as provided in our ordinary rules of procedure.95 In this case, it is conceded that petitioner was not able to file a separate " request " of arbitration before the MeTC. However, it is equally conceded that the petitioner, as early as in its Answer with Counterclaim ,had already apprised the MeTC of the existence of the arbitration clause in the 2005 Lease Contract96 and, more significantly, of its desire to have the same enforced in this case.97 This act of petitioner is enough valid invocation of his right to arbitrate. Fourth . The fact that the petitioner and respondent already under went through JDR proceedings before the RTC, will not make the subsequent conduct of arbitration between the parties unnecessary or circuitous. The JDR system is substantially different from arbitration proceedings. The JDR framework is based on the processes of mediation, conciliation or early neutral evaluation which entails the submission of a dispute before a " JDR judge " who shall merely " facilitate settlement " between the parties in conflict or make a " non-binding evaluation or assessment of the chances of each party’s case."98 Thus in JDR, the JDR judge lacks the authority to render a resolution of the dispute that is binding upon the parties in conflict. In arbitration, on the other hand, the dispute is submitted to an

arbitrator/s —a neutral third person or a group of thereof— who shall have the authority to render a resolution binding upon the parties.99 Clearly, the mere submission of a dispute to JDR proceedings would not necessarily render the subsequent conduct of arbitration a mere surplusage. The failure of the parties in conflict to reach an amicable settlement before the JDR may, in fact, be supplemented by their resort to arbitration where a binding resolution to the dispute could finally be achieved. This situation precisely finds application to the case at bench. Neither would the summary nature of ejectment cases be a valid reason to disregard the enforcement of the arbitration clause of the 2005 Lease Contract . Notwithstanding the summary nature of ejectment cases, arbitration still remains relevant as it aims not only to afford the parties an expeditious method of resolving their dispute. A pivotal feature of arbitration as an alternative mode of dispute resolution is that it is, first and foremost, a product of party autonomy or the freedom of the parties to " make their own arrangements to resolve their own disputes."100Arbitration agreements manifest not only the desire of the parties in conflict for an expeditious resolution of their dispute. They also represent, if not more so, the parties’ mutual aspiration to achieve such resolution outside of judicial auspices, in a more informal and less antagonistic environment under the terms of their choosing. Needless to state, this critical feature can never be satisfied in an ejectment case no matter how summary it may be. Having hurdled all the challenges against the application of the arbitration clause of the 2005 Lease Agreement in this case, We shall now proceed with the discussion of its legal effects. Legal Effect of the Application of the Arbitration Clause Since there really are no legal impediments to the application of the arbitration clause of the 2005 Contract of Lease in this case, We find that the instant unlawful detainer action was instituted in violation of such clause. The Law, therefore, should have governed the fate of the parties and this suit: R.A. No. 876 Section 7. Stay of civil action. - If any suit or proceeding be brought upon an issue arising out of an agreement providing for the arbitration thereof, the court in which such suit or proceeding is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration, shall stay the action or proceeding until an arbitration has been had in accordance with the terms of the agreement: Provided, That the applicant for the stay is not in default in proceeding with such arbitration.[Emphasis supplied] R.A. No. 9285

Section 24.Referral to Arbitration. - A court before which an action is brought in a matter which is the subject matter of an arbitration agreement shall, if at least one party so requests not later that the pre-trial conference, or upon the request of both parties thereafter, refer the parties to arbitration unless it finds that the arbitration agreement is null and void, in operative or incapable of being performed. [Emphasis supplied] It is clear that under the law, the instant unlawful detainer action should have been stayed;101 the petitioner and the respondent should have been referred to arbitration pursuant to the arbitration clause of the 2005 Lease Contract . The MeTC, however, did not do so in violation of the law—which violation was, in turn, affirmed by the RTC and Court of Appeals on appeal. The violation by the MeTC of the clear directives under R.A. Nos.876 and 9285 renders invalid all proceedings it undertook in the ejectment case after the filing by petitioner of its Answer with Counterclaim —the point when the petitioner and the respondent should have been referred to arbitration. This case must, therefore, be remanded to the MeTC and be suspended at said point. Inevitably, the decisions of the MeTC, RTC and the Court of Appeals must all be vacated and set aside. The petitioner and the respondent must then be referred to arbitration pursuant to the arbitration clause of the 2005 Lease Contract. This Court is not unaware of the apparent harshness of the Decision that it is about to make. Nonetheless, this Court must make the same if only to stress the point that, in our jurisdiction, bona fide arbitration agreements are recognized as valid;102 and that laws,103 rules and regulations104 do exist protecting and ensuring their enforcement as a matter of state policy. Gone should be the days when courts treat otherwise valid arbitration agreements with disdain and hostility, if not outright " jealousy,"105 and then get away with it. Courts should instead learn to treat alternative means of dispute resolution as effective partners in the administration of justice and, in the case of arbitration agreements, to afford them judicial restraint.106 Today, this Court only performs its part in upholding a once disregarded state policy. Civil Case No. CV 09-0346 This Court notes that, on 30 September 2009, petitioner filed with the RTC of Parañaque City, a complaint107 for the rescission or cancellation of the Deed of Donation and Amended Deed of Donation against the respondent. The case is currently pending before Branch 257 of the RTC, docketed as Civil Case No. CV 09-0346. This Court recognizes the great possibility that issues raised in Civil Case No. CV 09-0346 may involve matters that are rightfully arbitrable per the arbitration clause of the 2005 Lease Contract. However, since the records of Civil Case No. CV 09-0346 are not before this Court, We can never know with true certainty and only speculate. In this light, let a

copy of this Decision be also served to Branch 257of the RTC of Parañaque for its consideration and, possible, application to Civil Case No. CV 09-0346. WHEREFORE, premises considered, the petition is hereby GRANTED . Accordingly, We hereby render a Decision: 1. SETTING ASIDE all the proceedings undertaken by the Metropolitan Trial Court, Branch 77, of Parañaque City in relation to Civil Case No. 2009-307 after the filing by petitioner of its Answer with Counterclaim ; 2. REMANDING the instant case to the MeTC, SUSPENDED at the point after the filing by petitioner of its Answer with Counterclaim; 3. SETTING ASIDE the following: a. Decision dated 19 August 2011 of the Court of Appeals in C.A.-G.R. SP No. 116865, b. Decision dated 29 October 2010 of the Regional Trial Court, Branch 274, of Parañaque City in Civil Case No. 10-0255, c. Decision dated 27 April 2010 of the Metropolitan Trial Court, Branch 77, of Parañaque City in Civil Case No. 2009-307; and 4. REFERRING the petitioner and the respondent to arbitration pursuant to the arbitration clause of the 2005 Lease Contract, repeatedly included in the 2000 Lease Contract and in the 1976 Amended Deed of Donation. Let a copy of this Decision be served to Branch 257 of the RTC of Parañaque for its consideration and, possible, application to Civil Case No. CV 09-0346. No costs. SO ORDERED.

EN BANC

THE CASES The First Case: A.M. No. RTJ-99-1460 (Office of the Court Administrator v. Judge Florentino V. Floro, Jr.)

OFFICE OF THE COURT ADMINISTRATOR, Petitioner, - versus JUDGE FLORENTINO V. FLORO, JR., Respondent. x------------------------x Re: RESOLUTION DATED 11 MAY 1999 OF JUDGE FLORENTINO V. FLORO, JR. x------------------------x LUZ ARRIEGO, Petitioner, - versus JUDGE FLORENTINO V. FLORO, JR., Respondent. x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION CHICO-NAZARIO, J.: Equity does not demand that its suitors shall have led blameless lives. Justice Brandeis, Loughran v. Loughran[1]

It was in 1995 that Atty. Florentino V. Floro, Jr. first applied for judgeship. A pre-requisite psychological evaluation on him then by the Supreme Court Clinic Services (SC Clinic) revealed (e)vidence of ego disintegration and developing psychotic process. Judge Floro later voluntarily withdrew his application. In June 1998, when he applied anew, the required psychological evaluation exposed problems with self-esteem, mood swings, confusion, social/interpersonal deficits, paranoid ideations, suspiciousness, and perceptual distortions. Both 1995 and 1998 reports concluded that Atty. Floro was unfit to be a judge. Because of his impressive academic background, however, the Judicial and Bar Council (JBC) allowed Atty. Floro to seek a second opinion from private practitioners. The second opinion appeared favorable thus paving the way to Atty. Floros appointment as Regional Trial Court (RTC) Judge of Branch 73, Malabon City, on 4 November 1998. Upon Judge Floros personal request, an audit on his sala was conducted by the Office of the Court Administrator (OCA) from 2 to 3 March 1999.[2] After conducting the audit, the audit team, led by Atty. Mary Jane Dacarra-Buenaventura, reported its findings to erstwhile Court Administrator, Alfredo L. Benipayo, who submitted his own report/memorandum[3] to then Chief Justice Hilario G. Davide, Jr. dated 13 July 1999 recommending, among other things, that his report be considered as an administrative complaint against Judge Floro and that Judge Floro be subjected to an appropriate psychological or mental examination. Court Administrator Benipayo recommended as well that Judge Floro be placed under preventive suspension for the duration of the investigation against him. In a Resolution[4] dated 20 July 1999, the Court en banc adopted the recommendations of the OCA, docketing the complaint as A.M. No. RTJ-99-1460, in view of the commission of the following acts or omissions as reported by the audit team: (a) The act of circulating calling cards containing self-laudatory statements regarding qualifications and for announcing in open court during court session his qualification in violation of Canon 2, Rule 2.02, Canons of Judicial Conduct; (b)

For allowing the use of his chambers as sleeping quarters;

(c) For rendering resolutions without written orders in violation of Rule 36, Section 1, 1997 Rules of Procedures;

(d) For his alleged partiality in criminal cases where he declares that he is proaccused which is contrary to Canon 2, Rule 2.01, Canons of Judicial Conduct; (e) For appearing and signing pleadings in Civil Case No. 46-M-98 pending before Regional Trial Court, Branch 83, Malolos, Bulacan in violation of Canon 5, Rule 5.07, Canons of Judicial Conduct which prohibits a judge from engaging in the private practice of law; (f) For appearing in personal cases without prior authority from the Supreme Court and without filing the corresponding applications for leaves of absence on the scheduled dates of hearing. (g) For proceeding with the hearing on the Motion for Release on Recognizance filed by the accused without the presence of the trial prosecutor and propounding questions in the form of examination of the custodian of the accused; (h) For using/taking advantage of his moral ascendancy to settle and eventually dismiss Criminal Case No. 20385-MN (for frustrated homicide) in the guise of settling the civil aspect of the case, by persuading the private complainant and the accused to sign the settlement even without the presence of the trial prosecutor; (i) For motu proprio and over the strong objection of the trial prosecutor, ordering the mental and physical examination of the accused based on the ground that the accused is mahina ang pick-up; (j) For issuing an Order on 8 March 1999 which varies from that which he issued in open court in Criminal Case No. 20385-MN, for frustrated homicide; (k) For violation of Canon 1, Rule 1.01 Code of Judicial Conduct when he openly criticized the Rules of Court and the Philippine justice system; (l) For the use of highly improper and intemperate language during court proceedings; (m)

For violation of Circular No. 13[5] dated 1 July 1987.

Per the same resolution of the Court, the matter was referred to Retired Court of Appeals Justice Pedro Ramirez (consultant, OCA) for investigation, report and recommendation within 60 days from receipt. Judge Floro was directed to comment within ten days from receipt of the resolution and to subject himself to an appropriate psychological or mental examination to be conducted by the proper office of the Supreme Court or any duly authorized medical and/or mental institution. In the same breath, the Court resolved to place Judge Floro under preventive suspension for the duration of the investigation of the administrative charges against him. He was barely eight months into his position.

On 20 August 1999, Judge Floro submitted a Verified Comment where he set forth both affirmative and negative defenses[6] while he filed his Answer/Compliance on 26 August 1999. On 3 March 2000, Judge Floro moved for the provisional/final dismissal of his case for failure to prosecute.[7] However, on 21 March 2000, he presented himself as his first witness in the hearing conducted by Justice Ramirez.[8] Subsequently, on 7 July 2000, Judge Floro filed a Petition for Inhibition/Disqualification against Justice Ramirez as investigator[9] which was denied by Justice Ramirez in an Order dated 11 July 2000.[10] Judge Floros motion for reconsideration[11] suffered the same fate.[12] On 27 July 2000, Judge Floro submitted the question of Justice Ramirezs inhibition/disqualification to this Court.[13] On 8 August 2000, the Court ruled against the inhibition of Justice Ramirez.[14] On 11 September 2000, the OCA, after having been ordered by the Court to comment on Judge Floros motion to dismiss,[15] recommended that the same should be denied. Judge Floro presented his last witness on 6 March 2001.[16] The day after, Justice Ramirez came out with a Partial Report recommending the dismissal of Judge Floro from office by reason of insanity which renders him incapable and unfit to perform the duties and functions of Judge of the Regional Trial Court, National Capital Judicial Region, Malabon, Metro Manila, Branch 73.[17] In the meantime, throughout the investigation of the 13 charges against him and even after Justice Ramirez came out with his report and recommendation on 7 March 2001, Judge Floro had been indiscriminately filing cases against those he perceived to have connived to boot him out of office. A list of the cases Judge Floro filed in the wake of his 20 July 1999 preventive suspension follows: 1. OCA IPI No. 00-07-OCA against Atty. Mary Jane Dacarra-Buenaventura, Team Leader, Judicial Audit Team, Office of the Court Administrator[18] 2. OCA IPI No. 00-933-RTJ against Judge Benjamin Aquino, Jr., Regional Trial Court, Branch 72, Malabon City[19] 3. AC No. 5286 against Court Administrator Alfredo L. Benipayo and Judge Benjamin Aquino, Jr.[20] 4. AC No. CBD-00-740 against Thelma C. Bahia, Court Management Office, Atty. Mary Jane Dacarra-Buenaventura, Atty. II, Court Management Office, both of the

Office of the Court Administrator and Atty. Esmeralda G. Dizon, Branch Clerk of Court, Branch 73, Malabon[21]

inhibition) so that the petitioner, Mary Ng Nei, will have a chance to have the case be assigned to other judges through an impartial raffle.

5. AC No. 6282 (CPL No. C-02-0278) against former Court Administrator Justice Alfredo L. Benipayo and (Ret.) Justice Pedro A. Ramirez, Consultant, Office of the Court Administrator[22]

When Judge Floro, Jr. denied the motion for inhibition, he should have continued hearing and taking cognizance of the case. It is improper for him to order the raffle of the case anew as this violates Administrative Circular No. 1 (Implementation of Sec. 12, Art. XVIII of the 1987 Constitution) dated January 28, 1988 which provides to wit:

6.

A.M. No. 03-8-03-0 against (Ret.) Justice Pedro A. Ramirez[23]

7.

A.C. No. 6050 against (Ret.) Justice Pedro A. Ramirez[24]

On 1 February 2006, Judge Floro moved that the cases he filed, now totaling seven, be dismissed.[25] On 14 February 2006, the Court granted the motion to dismiss.[26] The Second Case: A.M. No. RTJ-06-1988(Luz Arriego v. Judge Florentino V. Floro, Jr.) This charge is likewise the subject matter of charge h in A.M. No. RTJ-99-1460: (f)or using/taking advantage of his moral ascendancy to settle and eventually dismiss Criminal Case No. 20385-MN (for frustrated homicide) in the guise of settling the civil aspect of the case, by persuading the private complainant and the accused to sign the settlement even without the presence of the trial prosecutor. The complainant Luz Arriego is the mother of the private complainant in Criminal Case No. 20385-MN. On 28 June 2001, Arriego testified, while court stenographer Jocelyn Japitenga testified on 16 July 2001. On 31 July 2001, Arriego filed her Formal Offer of Evidence which was opposed by Judge Floro on 21 August 2001. On 5 September 2001, Judge Floro testified on his behalf while Atty. Galang testified against him on 4 October 2001. On 16 October 2001, Judge Floro filed a Memorandum in this case.[27] The Third Case: A.M. No. 99-7-273-RTC (Re: Resolution Dated 11 May 1999 of Judge Florentino V. Floro, Jr.) As can be gathered from the title, this case concerns a resolution issued by Judge Floro on 11 May 1999 in Special Proceeding Case No. 315-MN In Re: Petition To Be Admitted A Citizen Of The Philippines, Mary Ng Nei, Petitioner. The resolution disposed of the motions for voluntary inhibition of Judge Floro and the reconsideration of the order denying the petition for naturalization filed by petitioner in that case, Mary Ng Nei. This resolution found its way to the OCA through a letter written by Atty. David S. Narvasa, the petitioners counsel.[28] The OCA, through Court Administrator Benipayo, made the following evaluation: In the subject resolution, Judge Floro, Jr. denied the motion for inhibition and declared it as null and void. However, he ordered the raffling of the case anew (not re-raffle due to

8. Raffle of Cases: xxxx 8.3 Special raffles should not be permitted except on verified application of the interested party who seeks issuance of a provisional remedy and only upon a finding by the Executive Judge that unless the special raffle is conducted, irreparable damage shall be suffered by the applicant. The special raffle shall be conducted by at least two judges in a multiple-sala station. xxxx Based on the foregoing, a judge may not motu proprio order the special raffle of a case since such is only allowed upon a verified application of the interested party seeking a provisional remedy and only upon the Executive Judges finding that if a special raffle is not conducted, the applicant will suffer irreparable damage. Therefore, Judge Floro, Jr.s order is contrary to the above-mentioned Administrative Circular. Moreover, it is highly inappropriate for Judge Floro, Jr. to even mention in his resolution that Justice Regino C. Hermosisima, Jr. is his benefactor in his nomination for judgeship. It is not unusual to hear a judge who speaks highly of a padrino (who helped him get his position). Such remark even if made as an expression of deep gratitude makes the judge guilty of creating a dubious impression about his integrity and independence. Such flaunting and expression of feelings must be suppressed by the judges concerned. A judge shall not allow family, social, or other relationships to influence judicial conduct or judgment (Canon 2, Rule 2.03, Code of Judicial Conduct). The merits of the denial of the motion for inhibition and the ruling on the motion for reconsideration are judicial matters which this Office has no authority to review. The remedy is judicial, not administrative.[29] The OCA thus recommended that Judge Floro comment on (a) his act of ordering the raffle of the case in violation of Administrative Circular No. 1; and (b) his remark on page 5 of the subject resolution that Justice Hermosisima, Jr. x x x helped undersigned so much, in the JBC, regarding his nomination x x x.

In a Resolution dated 17 August 1999, the Court en banc adopted the recommendations of the OCA.[30] Judge Floro, through his counsel, filed his Comment on 22 October 1999[31] which was noted by this Court on 7 December 1999. On 11 January 2000, Judge Floro filed a Formal Offer of Evidence which this Court, in a resolution dated 25 January 2000, referred to Justice Ramirez for inclusion in his report and recommendation. For the record, the OCA is yet to come up with its report and recommendation in this case as well as in the second case (i.e., A.M. No. RTJ-06-1988). Thus, in a resolution dated 14 February 2006, the Court directed Judge Floro as well as the other parties in these two cases to inform the Court whether or not they are willing to submit A.M. RTJ-06-1988 and A.M. No. 99-7-273-RTC for decision on the basis of the pleadings filed and the evidence so far submitted by them or to have the decision in A.M. No. RTJ-99-1460 decided ahead of the two. On 20 February 2006, the OCA, thru Court Administrator Presbitero J. Velasco, Jr., manifested its willingness to submit A.M. No. 99-7-273-RTC for resolution based on the pleadings and the evidence submitted therein. Complainant Luz Arriego in A.M. No. RTJ-06-1988 likewise informed this Court, in a Letter dated 28 February 2006, her willingness to submit her case for decision based on the pleadings already submitted and on the evidence previously offered and marked. On the other hand, on 3 March 2006, Judge Floro manifested his preference to have A.M. No. RTJ-99-1460 decided ahead of A.M. RTJ-06-1988 and A.M. No. 99-7-273-RTC. In the interest of orderly administration of justice, considering that these are consolidated cases, we resolve to render as well a consolidated decision. But first, the ground rules: Much has been said across all fronts regarding Judge Floros alleged mental illness and its effects on his duties as Judge of a Regional Trial Court. For our part, figuring out whether Judge Floro is indeed psychologically impaired and/or disabled as concluded by the investigator appointed by this Court is frankly beyond our sphere of competence, involving as it does a purely medical issue; hence, we will have to depend on the findings of the mental health professionals who interviewed/analyzed Judge Floro. Our job is simply to wade through the evidence, filter out the irrelevant and the irreverent in order to determine once and for all if Judge Floro is indeed guilty of the charges against him. If the evidence makes out a case against Judge Floro, the next issue is to determine the appropriate penalty to be imposed. Finally, we will have to determine whether Judge Floro acted with an evil mind or because of a psychological or mental incapacity. Upon the resolution of this question hinges the applicability of equity. As an aside, it bears pointing out that some of the charges (c and g, h and j, e and f) will be jointly discussed as they had likewise been jointly discussed by the OCA. These charges involve common facts and to treat them separately will be superfluous. DISCUSSION

As alleged and as proven, the 13 specified charges do not warrant the supreme penalty of dismissal against Judge Floro (a) Re: Charge of circulating calling cards containing self-laudatory statements regarding qualifications AND for announcing in open court during court session his qualifications in violation of Canon 2, Rule 2.02, Canons of Judicial Conduct As narrated by the audit team, Judge Floro was circulating calling cards bearing his name as the Presiding Judge of RTC, Branch 73, Malabon City, and indicating therein that he is a bar exams topnotcher (87.55%) and with full second honors from the Ateneo de Manila University, A.B. and LL.B.[32] The audit team likewise reported that: (b)efore the start of court session, Judge Floro is introduced as a private law practitioner, a graduate of Ateneo de Manila University with second honors, and a bar topnotcher during the 1983 Bar Examinations with an average score of 87.55%. Afterwards, a reading of the Holy Bible, particularly the Book of Revelation according to Saint John, was made. The people in the courtroom were given the opportunity to ask Judge Floro questions on the matter read. No questions were asked; hence the session commenced.[33] Judge Floro argues that, per commentary of Justice Ruperto G. Martin,[34] the use of professional cards containing the name of the lawyer, his title, his office and residence is not improper and that the word title should be broad enough to include a Judges legal standing in the bar, his honors duly earned or even his Law School. Moreover, other lawyers do include in their calling cards their former/present titles/positions like President of the Jaycees, Rotary Club, etc., so where then does one draw the line? Finally, Judge Floro argues that his cards were not being circulated but were given merely as tokens to close friends or by reciprocity to other callers considering that common sense dictates that he is not allowed by law to seek other professional employment. As to the charge that he had been announcing in open court his qualifications, Judge Floro counters that it was his branch clerk of court, Atty. Esmeralda Galang-Dizon, who suggested that during his initial court session, she would briefly announce his appointment with an introduction of his school, honors, bar rating and law practice. Naively, Judge Floro agreed as the introduction was done only during the first week of his assumption into office. Canon 2, Rule 2.02 of the Code of Judicial Conduct says in no uncertain terms that a judge should not seek publicity for personal vainglory. A parallel proscription, this time for lawyers in general, is found in Rule 3.01 of the Code of Professional Responsibility: a lawyer shall not use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement or claim regarding his qualifications or legal services. This means that lawyers and judges alike, being limited by the exacting standards of their profession, cannot debase the same by acting as if ordinary merchants hawking their wares. As succinctly put by a leading authority in legal and judicial ethics, (i)f lawyers are prohibited from x x x using or permitting the use of any undignified or

self-laudatory statement regarding their qualifications or legal services (Rule 3.01, Code of Professional Responsibility), with more reasons should judges be prohibited from seeking publicity for vanity or self-glorification. Judges are not actors or actresses or politicians, who thrive by publicity.[35] The question, therefore, is: By including self-laudatory details in his professional card, did Judge Floro violate Canon 2, Rule 2.02 of the Code of Judicial Conduct? In Ulep v. Legal Clinic, Inc.,[36] we explained that the use of an ordinary and simple professional card by lawyers is permitted and that the card may contain only a statement of his name, the name of the law firm which he is connected with, address, telephone number and special branch of law practiced. In herein case, Judge Floros calling cards cannot be considered as simple and ordinary. By including therein the honors he received from his law school with a claim of being a bar topnotcher, Judge Floro breached the norms of simplicity and modesty required of judges.

Judge Floro insists, however, that he never circulated his cards as these were just given by him as tokens and/or only to a few who requested the same.[37] The investigation by Justice Ramirez into the matter reveals otherwise. An eye-witness from the OCA categorically stated that Judge Floro circulated these cards.[38] Worse, Judge Floros very own witness, a researcher from an adjoining branch, testified that Judge Floro gave her one of these cards.[39] As this charge involves a violation of the Code of Judicial Conduct, it should be measured against Rule 140 of the Rules of Court as amended by A.M. No. 01-8-10-SC being more favorable to respondent Judge Floro. Rule 140, before its amendment, automatically classified violations of the Code of Judicial Conduct as serious charges. As amended, a violation of the Code of Judicial Conduct may amount to gross misconduct, which is a serious charge, or it may amount to simple misconduct, which is a less serious charge or it may simply be a case of vulgar and/or unbecoming conduct which is a light charge. Misconduct is defined as wrong or improper conduct while gross connotes something out of all measure; beyond allowance; not to be excused; flagrant; shameful.[40] For serious misconduct to exist, the judicial act complained of should be corrupt or inspired by an intention to violate the law or a persistent disregard of well-known legal rules.[41] With the foregoing as yardstick, we find the act of Judge Floro in circulating calling cards containing self-laudatory statements constitutive of simple misconduct in violation of Canon 2, Rule 2.02 of the Code of Judicial Conduct as it appears that Judge Floro was not motivated by any corrupt motive but, from what we can see from the evidence, a persistent and unquenchable thirst for recognition. Concededly, the need for recognition is an all too human flaw and judges do not cease to be human upon donning the judicial

robe. Considering, however, the proscription against judges seeking publicity for personal vainglory, they are held to a higher standard as they must act within the confines of the code they swore to observe. As to the charge that Judge Floro, through his branch clerk of court, had been announcing in open court his qualifications, we find that this is likewise violative of Canon 2, Rule 2.02 of the Code of Judicial Conduct as it smacks of unnecessary publicity. Judges should not use the courtroom as platform for announcing their qualifications especially to an audience of lawyers and litigants who very well might interpret such publicity as a sign of insecurity. Verily, the public looks upon judges as the bastion of justice confident, competent and true. And to discover that this is not so, as the judge appears so unsure of his capabilities that he has to court the litigants and their lawyers approval, definitely erodes public confidence in the judiciary. As it is not disputed, however, that these announcements went on for only a week, Judge Floro is guilty of simple misconduct only.

(b) Re: Charge of allowing the use of his chambers as sleeping quarters The audit team observed that inside Judge Floros chamber[s], there is a folding bed with cushion located at the right corner of the room. A man, who was later identified as Judge Floros driver, was sleeping. However, upon seeing the audit team, the driver immediately went out of the room.[42] Judge Floro contends that this charge is without legal or factual basis. The man the audit team saw sleeping on his folding bed, J. Torralba, was Judge Floros aide or alalay whom he allows to rest from time to time (in between periods and especially during court sessions) for humanitarian reasons. J. Torralba was not sleeping during that time that the audit team was in Branch 73 as he immediately left when he saw the members thereof. This charge must fail as there is nothing inherently improper or deplorable in Judge Floro having allowed another person to use his folding bed for short periods of time during office hours and while there is no one else in the room. The situation would have been different if there had been any allegation of misuse or abuse of government funds and/or facilities such as in the case of Presado v. Genova[43] wherein Judge Genova was found guilty of serious misconduct and conduct prejudicial to the best interest of the service when he and his family used his chambers as residential quarters, with the provincial government paying for the electrical bills. Be that as it may, it does not augur well for a new judge to allow such familiarity from his aide as this becomes fodder for gossip as what had apparently happened in this case. Judge Floro should have been aware of and attuned to the sensibilities of his staff

who were understandably uncomfortable with the uncommon arrangement of a judge allowing his aide easy access to his folding bed. (c) Re: Charge of rendering resolutions without written orders in violation of Rule 36, Section 1, 1997 Rules of Procedure

Contrary to the stance of the TEAM, Sec. 1 of Rule 36, Rules of Court refers only to final and not interlocutory orders. Only final orders and judgments are promulgated, rendered and entered. xxxx

(g) Re: Charge of proceeding with the hearing on the Motion for Release on Recognizance filed by the accused without the presence of the trial prosecutor and propounding questions in the form of examination of the custodian of the accused

Applying the foregoing well-settled doctrines of law to the case at bar, herein respondent faithfully complied with the requirements of Sec. 7 of P.D. 968 as amended, regarding the applications for release on recognizance, thus:

The memorandum report reads:

a. The application for release on recognizance, although captioned as MOTION FOR RELEASE ON RECOGNIZANCE, is primarily governed by Sec. 7 of P.D. 968, a Special Law on Probation.

c. It was reported by the staff of Branch 73 that regardless of the absence of the trial prosecutor, Judge Floro, Jr. still proceeded with the hearing of the following matters: (c-1) Motion for Release on Recognizance filed by the accused, in Criminal Cases Nos. 20384, 20371, 20246 and 20442 entitled People vs. Luisito Beltran, People vs. Emma Alvarez, et al., People vs. Rowena Camino, and People vs. John Richie Villaluz, respectively. In the hearing of these motions, Judge Floro, Jr. propounded questions (in a form of direct examination) to the custodian of the accused without the accused being sworn by the administering officer. (Note: initially, Judge Floro, Jr. ordered the Branch Clerk of Court Dizon to place the accused under oath prior to the start of his questions. However, COC Dizon refused). The hearing on the aforesaid motions is an offshoot of a previous hearing wherein the accused had pleaded guilty to a lesser offense. After the reading of the sentence, Judge Floro, Jr. would automatically inform the accused that they are qualified to apply for probation. In fact, Judge Floro, Jr. would even instruct his staff to draft the application in behalf of the accused so that a motion for release on recognizance will immediately be heard and be consequently granted. As appearing in the minutes of the hearing (attached herewith as Annexes 3 to 6), the custodians of the accused are either a barangay kagawad, barangay tanod or a member of the lupong tagapamayapa. Likewise, no written order granting the motion for release on recognizance is being issued by Judge Floro, Jr. since according to him neither rules nor circular mandates the issuance of a written order. Instead, after granting the motion, Judge Floro, Jr. just requires the parties to sign the minutes of the session. Photocopies of the minutes dated March 4, 1999 in Criminal Cases Nos. 20384-MN; 20373-MN; and 20371-MN are hereto attached as Annexes 3 to 5. On March 11, 1999, in Criminal Cases Nos. 20426-MN and 20442MN, Judge Floro, Jr. granted a similar motion without issuing a written order. Copies of the minutes are hereto attached as annexes 6 to 7.[44] In his Verified Comment, Judge Floro argues that he never violated any rule of procedure with respect to the cases mentioned by the Audit Team, asserting that

b. Any Application for Release on Recognizance, is given due course/taken cognizance of by respondent, if on its face, the same bears the rubber stamp mark/receipt by the Office of the City/Public Prosecutor. c. The consistent practice both in RTC, METRO MANILA (all courts), especially in RTC, MALABON, and in Malolos, Bulacan (where respondent practiced from 1985-1998 almost 14 years), [and especially the practice of former Judge A. V. Cabigao, Br. 73, RTC, Malabon, Metro Manila], is to interview the custodian, in the chambers, regarding his being a responsible member of the community where the accused reside/resides; the questions propounded are in the form of direct and even cross examination questions. d. The accused is not required to be placed on the witness stand, since there is no such requirement. All that is required, is to inform the accused regarding some matters of probation (optional) such as whether he was sentenced previously by a Court, whether or not he has had previous cases, etc. e. Even if RTC Judges in Malabon do not conduct Court hearings on application for release on recognizance, respondent, for caution in most of the applications, included the interview/hearing on the applications for release on recognizance, during criminal trial dates, where a fiscal/trial prosecutor is available; at other times, the hearing is held in the chambers.[45] The explanation given by Judge Floro betrays his liability for ignorance of the rules on probation under Presidential Decree No. 968 (Probation Law), as amended. Contrary to his remonstrations, the release of an accused on recognizance entails more than a cursory interview of the custodian and the applicant. Under the Probation Law,[46] and as we explained in Poso v. Judge Mijares,[47] it is incumbent upon the Judge hearing the application to ascertain first that the applicant is not a disqualified offender as (p)utting the discharge of the accused on hold would have allowed [the judge] more time to pass upon the request for provisional liberty.

Moreover, from Judge Floros explanations, it would seem that he completely did away with the requirement for an investigation report by the probation officer. Under the Probation Law, the accuseds temporary liberty is warranted only during the period for awaiting the submission of the investigation report on the application for probation and the resolution thereon.[48] As we explained in Poso v. Judge Mijares[49]: It must be stressed that the statutory sequence of actions, i.e., order to conduct case study prior to action on application for release on recognizance, was prescribed precisely to underscore the interim character of the provisional liberty envisioned under the Probation Law. Stated differently, the temporary liberty of an applicant for probation is effective no longer than the period for awaiting the submission of the investigation report and the resolution of the petition, which the law mandates as no more than sixty (60) days to finish the case study and report and a maximum of fifteen (15) days from receipt of the report for the trial judge to resolve the application for probation. By allowing the temporary liberty of the accused even before the order to submit the case study and report, respondent Judge unceremoniously extended the pro tem discharge of the accused to the detriment of the prosecution and the private complainants. (Emphasis supplied) As to the argument of Judge Floro that his Orders for the release of an accused on recognizance need not be in writing as these are duly reflected in the transcript of stenographic notes, we refer to Echaus v. Court of Appeals[50] wherein we held that no judgment, or order whether final or interlocutory, has juridical existence until and unless it is set down in writing, signed and promulgated, i.e., delivered by the Judge to the Clerk of Court for filing, release to the parties and implementation. Obviously, then, Judge Floro was remiss in his duties as judge when he did not reduce into writing his orders for the release on recognizance of the accused in Criminal Cases No. 20384, 20371, 202426 and 20442 entitled, People v. LuisitoBeltran, People v. Emma Alvarez, et al., People v. Rowena Camino, and People v. John Richie Villaluz.[51] From his explanation that such written orders are not necessary, we can surmise that Judge Floros failure was not due to inadvertence or negligence on his part but to ignorance of a procedural rule. In fine, we perceive three fundamental errors in Judge Floros handling of probation cases. First, he ordered the release on recognizance of the accused without the presence of the prosecutor thus depriving the latter of any opportunity to oppose said release. Second, Judge Floro ordered the release without first requiring the probation officer to render a case study and investigation report on the accused. Finally, the order granting the release of the accused on recognizance was not reduced into writing. It would seem from the foregoing that the release of the accused on recognizance, as well as his eventual probation, was already a done deal even before the hearing on his application as Judge Floro took up the cudgels for the accused by instructing his staff to draft the application for probation. This, Judge Floro did not deny. Thus, we agree in the

observation of the audit team that Judge Floro, as a matter of policy, had been approving applications for release on recognizance hastily and without observing the requirements of the law for said purpose. Verily, we having nothing against courts leaning backward in favor of the accused; in fact, this is a salutary endeavor, but only when the situation so warrants. In herein case, however, we cannot countenance what Judge Floro did as the unsolicited fervor to release the accused significantly deprived the prosecution and the private complainants of their right to due process.[52] Judge Floros insistence that orders made in open court need not be reduced in writing constitutes gross ignorance of the law. Likewise, his failure to follow the basic rules on probation, constitutes gross ignorance of the law.[53] Verily, one of the fundamental obligations of a judge is to understand the law fully and uphold it conscientiously.[54] When the law is sufficiently basic, a judge owes it to his office to know and simply apply it for anything less is constitutive of gross ignorance of the law.[55] True, not every judicial error bespeaks ignorance of the law and that, if committed in good faith, does not warrant administrative sanctions.[56] To hold otherwise would be nothing short of harassing judges to take the fantastic and impossible oath of rendering infallible judgments.[57] This rule, however, admits of an exception as good faith in situations of fallible discretion inheres only within the parameters of tolerable judgment and does not apply where the issues are so simple and the applicable legal principle evident and as to be beyond permissible margins of error.[58] Thus, even if a judge acted in good faith but his ignorance is so gross, he should be held administratively liable. [59] (d) RE: Charge of partiality in criminal cases where he declared that he is pro-accused which is contrary to Canon 2, Rule 2.01, Canons of Judicial Conduct The audit team reported that Judge Floro relayed to the members thereof that in criminal cases, he is always pro-accused particularly concerning detention prisoners and bonded accused who have to continually pay for the premiums on their bonds during the pendency of their cases. Judge Floro denies the foregoing charge. He claims that what he did impart upon Atty. Buenaventura was the need for the OCA to remedy his predicament of having 40 detention prisoners and other bonded accused whose cases could not be tried due to the lack of a permanent prosecutor assigned to his sala. He narrated as well to Atty. Buenaventura the sufferings of detention prisoners languishing in the Malabon/Navotas jail whose cases had not been tried during the vacancy of his sala from February 1997 to 5 November 1998. At any rate, Judge Floro submits that there is no single evidence or proof submitted by any litigant or private complainant that he sided with the accused. Atty. Dizon, Judge Floros Clerk of Court, on the other hand, categorically stated under oath that Judge Floro, during a staff meeting, admitted to her and the staff of Branch 73 and in the presence of his Public Attorneys Office (PAO) lawyer that he is pro-accused for

the reason that he commiserated with them especially those under detention as he, himself, had been accused by his brother and sister-in-law of so many unfounded offenses.[60] Between the two versions, the testimony of Atty. Dizon is more credible especially since it is corroborated by independent evidence,[61] e.g., Judge Floros unwarranted eagerness in approving application for release on recognizance as previously discussed. Canon 2.01 of the Code of Judicial Conduct states: A judge should so behave at all times as to promote public confidence in the integrity and impartiality of the judiciary. This means that a judge whose duty is to apply the law and dispense justice should not only be impartial, independent and honest but should be believed and perceived to be impartial, independent and honest as well.[62] Like Caesars wife, a judge must not only be pure but above suspicion.[63] Judge Floro, by broadcasting to his staff and the PAO lawyer that he is pro-accused, opened himself up to suspicion regarding his impartiality. Prudence and judicial restraint dictate that a judge should reserve personal views and predilections to himself so as not to stir up suspicions of bias and unfairness. Irresponsible speech or improper conduct of a judge erodes public confidence in the judiciary.[64] His language, both written and spoken, must be guarded and measured, lest the best of intentions be misconstrued.[65] On a more fundamental level, what is required of judges is objectivity if an independent judiciary is to be realized. And by professing his bias for the accused, Judge Floro is guilty of unbecoming conduct as his capacity for objectivity is put in serious doubt, necessarily eroding the publics trust in his ability to render justice. As we held in Castillo v. Juan[66]: In every litigation, x x x, the manner and attitude of a trial judge are crucial to everyone concerned, the offended party, no less than the accused. It is not for him to indulge or even to give the appearance of catering to the at-times human failing of yielding to first impressions. He is to refrain from reaching hasty conclusions or prejudging matters. It would be deplorable if he lays himself open to the suspicion of reacting to feelings rather than to facts, of being imprisoned in the net of his own sympathies and predilections. It must be obvious to the parties as well as the public that he follows the traditional mode of adjudication requiring that he hear both sides with patience and understanding to keep the risk of reaching an unjust decision at a minimum. It is not necessary that he should possess marked proficiency in law, but it is essential that he is to hold the balance true. What is equally important is that he should avoid any conduct that casts doubt on his impartiality. What has been said is not merely a matter of judicial ethics. It is impressed with constitutional significance. (h) Re: Charge of using/taking advantage of his moral ascendancy to settle and eventually dismiss Criminal Case No. 20385-MN (for frustrated homicide) in the guise of settling the civil aspect of the case, by persuading the private complainant and the accused to sign the settlement even without the presence of the trial prosecutor.

(j) Re: Charge of issuing an Order on 8 March 1999 which varies from that which he issued in open court in Criminal Case No. 20385-MN, for frustrated homicide. The memorandum report states: During the arraignment and pre-trial of Criminal Case No. 20385-MN entitled: People vs. Nenita Salvador, Judge Floro, Jr., in the absence of the public prosecutor and considering that the private complainant was not being represented by a private prosecutor, used his moral ascendancy and influence to convince the private complainant to settle and eventually cause the dismissal of the case in the guise of settling its civil aspect by making the private complainants and the accused sign the settlement. (Copy of the signed stenographic notes is hereto attached as Annex 8). xxxx In an Order dated March 8, 1999 in Criminal Case No. 20385-MN, for frustrated homicide, Judge Floro, Jr. put on record the manifestations of the private complainant and the accused relative to their willingness to settle the civil aspect of the case. In the same order, Judge Floro, Jr. reserved his ruling on the said settlement until after the public prosecutor has given his comment. However, per report of the court employees in Branch 73, the aforesaid order was actually a revised one or a deviation from the original order given in open court. Actually, the said criminal case was already settled even without the presence of the public prosecutor. The settlement was in the nature of absolving not only the civil liability of the accused but the criminal liability as well. It was further reported that the private complainants signed the compromise agreement due to the insistence or persuasion of Judge Floro, Jr. The audit team was furnished a copy of the stenographic notes (unsigned draft order) and the revised order (signed). Copies of the stenographic notes and the revised order are hereto attached as Annexes 8, 13, and 14. (Note: the stenographic notes were signed by the parties to the case). In the meantime, the mother of the private complainant in Criminal Case No. 20385-MN, Luz Arriego, filed an administrative case against Judge Floro docketed as A.M. OCA-I.P.I. No. 99-812-RTJ. In her Affidavit Complaint[67] dated 9 August 1999, she alleged that on 8 March 1999, Judge Floro forced them to settle her daughters case against the accused therein despite the absence of the trial prosecutor. When the parties could not agree on the amount to be paid by the accused for the medical expenses incurred by complaining witness, they requested respondent that they be given time to study the matter and consult a lawyer to which Judge Floro replied that the case be settled immediately, uttering, ngayon na! ngayon na! Moreover, Judge Floro allegedly made them believe that the counter-charges filed by the accused against the complaining witness would likewise be dismissed, so they agreed to settle the case. However, the written Order issued by respondent Judge did not reflect the agreement entered into by the parties in open court.

Judge Floro takes exception to the foregoing OCA report and the complaint filed by Mrs. Arriego, maintaining that the hearing on said case was not only in accordance with the Rules of Court but was also beneficial to the litigants concerned as they openly manifested their willingness to patch up their differences in the spirit of reconciliation. Then, considering that the parties suggested that they would file the necessary pleadings in due course, Judge Floro waited for such pleadings before the TSN-dictated Order could be reduced to writing.Meanwhile, in the course of a conversation between Judge Floro and Court Administrator Benipayo, the latter opined that under Section 27 of Rule 130 of the Rules of Court, an offer of compromise in criminal cases is tantamount to an admission of guilt except in some cases. With this in mind, the 8 March 1999 Order of the hearing on even date was superseded by the revised written Order likewise dated 8 March 1999. Judge Floro asserts that contrary to Atty. Buenaventuras stance that he has no power to revise an Order, courts have plenary power to recall and amend or revise any orally dictated order in substance and in form even motu proprio. The rule on the matter finds expression in Echaus v. Court of Appeals[68] wherein we declared: x x x [N]o judgment, or order whether final or interlocutory, has juridical existence until and unless it is set down in writing, signed and promulgated, i.e., delivered by the Judge to the Clerk of Court for filing, release to the parties and implementation, and that indeed, even after promulgation, it does not bind the parties until and unless notice thereof is duly served on them by any of the modes prescribed by law. This is so even if the order or judgment has in fact been orally pronounced in the presence of the parties, or a draft thereof drawn up and signed and/or copy thereof somehow read or acquired by any party. In truth, even after promulgation (i.e., filing with the clerk of court), and even after service on the parties of notice of an order or judgment, the Court rendering it indisputably has plenary power to recall and amend or revise it in substance or form on motion of any party or even motu proprio, provided that in the case of a final order or judgment, the same has not attained finality.(Emphasis supplied) In herein case, what was involved was an interlocutory order made in open court ostensibly a judicial approval of a compromise agreement which was amended or revised by removing the stamp of judicial approval, the written order merely stating that Judge Floro was reserving its ruling regarding the manifestations of the parties to enter into a compromise agreement after the public prosecutor shall have submitted its comments thereto.[69] Considering then that it was well within the discretion of Judge Floro to revise his oral order per the Echaus ruling and factoring in his explanation for resorting to such an amendment, we find no basis for the charge of dishonesty (under paragraph j of the complaint).

Anent the charge that Judge Floro used his moral ascendancy to settle and eventually dismiss Criminal Case No. 20385-MN (for frustrated homicide) in the guise of settling the civil aspect of the case, by persuading the private complainant and the accused to sign the settlement even without the presence of the trial prosecutor, the same must likewise fail for lack of basis. The controversial settlement never came to pass. It was not judicially approved as reflected in the revised Order of 8 March 1999, thus, Mrs. Arriego actually had no cause for complaint. She cannot, on one hand, complain that the written order did not reflect the agreement reached during the hearing and, on the other hand, claim that this agreement was reached under duress at the instance of Judge Floro. (i) For motu proprio and over the strong objection of the trial prosecutor, ordering the mental and physical examination of the accused based on the ground that the accused is mahina ang pick-up The audit team reported that in an Order dated 8 February 1999 in Criminal Case No. 20347-MN, Judge Floro motu proprio ordered the physical and mental examination of the accused by any physician, over the strong objection of the trial prosecutor, on the ground that the accused is mahina ang pick-up.[70] In refutation, Judge Floro argues -In the case at bar, respondent/Court carefully observed the demeanor of the accused NESTOR ESCARLAN and noted the manifestations of his counsel de oficio, Atty. E. Gallevo, PAO lawyer, and the comment/objections of the trial prosecutor, Prosecutor J. Diaz, thus: a. Atty. Gallevo manifested to the Court that the accused opted to enter a plea of not guilty; b. But upon query of the Court, the accused approached the bench and he appeared trembling and stammering; c. Atty. Gallevo, upon questions by respondent, readily admitted that accused is nauutal, has difficulty of reasoning, of speaking, and very nervous; d. Atty. Gallevo also manifested that the accused often changed his mind regarding the plea, from not guilty to guilty and to not guilty, and so forth; e. Considering the grave situation, Atty. Gallevo, upon citation by the Court/respondent of the pertinent provisions of the Rules, namely Rule 28 (Mental Examination of Persons), Sec. 12 of Rule 116, and Sec. 5(g) of Rule 135, Rules of Court (plenary powers to issue orders to conform to justice), manifested orally that the accused is mahina ang pick-up; f. Hence, respondent exercised his sound discretion in issuing the ORDER OF MENTAL EXAMINATION.

The MENTAL examination ORDER finds legal support, since it is well-settled that the court may order a physical or MENTAL examination of a party where his physical or mental condition is material to the issues involved. (27 C.J.S. p. 119, cf. MARTIN, p. 107, id.).[71] PAO lawyer Erwin Joy B. Gallevo took the witness stand for Judge Floro. He testified that he moved for the suspension of the arraignment of the accused Nestor Escarlan Escancillain order to assess his mental fitness for trial.[72] As reflected in the Order for suspension, however, and as admitted by Judge Floro himself in his Comment, Atty. Gallevo merely manifested that accused is mahina ang pick-up. Be that as it may, we cannot fault Judge Floro for suspending the arraignment motu proprio and over the strong objection of the trial prosecutor. It must be remembered that the scheduled arraignment took place in February 1999 when the applicable rule was still Section 12(a) of Rule 116 of the 1985 Rules of Criminal Procedure, which reads: SEC. 12. Suspension of arraignment. The arraignment shall be suspended, if at the time thereof: (a) The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his mental examination and, if necessary, his confinement for such purpose. The above-cited rule does not require that the suspension be made pursuant to a motion filed by the accused unlike Section 11(a), Rule 116 of the present 2000 Rules of Criminal Procedure which decrees that the suspension be made upon motion by the proper party.[73] Thus, it was well within the discretion of Judge Floro to order the suspension of the arraignment motu proprio based on his own assessment of the situation. In fact, jurisprudence imposes upon the Judge the duty to suspend the proceedings if it is found that the accused, even with the aid of counsel, cannot make a proper defense.[74] As we underscored in People v. Alcalde[75]: Settled is the rule that when a judge is informed or discovers that an accused is apparently in a present condition of insanity or imbecility, it is within his discretion to investigate the matter. If it be found that by reason of such affliction the accused could not, with the aid of counsel, make a proper defense, it is the duty of the court to suspend the proceedings and commit the accused to a proper place of detention until his faculties are recovered. x x x. xxxx The constitutional right to be informed of the nature and cause of the accusation against him under the Bill of Rights carries with it the correlative obligation to effectively convey to the accused the information to enable him to effectively prepare for his defense. At the

bottom is the issue of fair trial. While not every aberration of the mind or exhibition of mental deficiency on the part of the accused is sufficient to justify suspension of the proceedings, the trial court must be fully satisfied that the accused would have a fair trial with the assistance the law secures or gives. x x x. Whether or not Judge Floro was indeed correct in his assessment of the accuseds mental fitness for trial is already beside the point. If ever he erred, he erred in the side of caution which, under the circumstances of the case, is not an actionable wrong. (e) Re: Charge of appearing and signing pleadings in Civil Case No. 46-M-98 pending before Regional Trial Court, Branch 83, Malolos, Bulacan in violation of Canon 5, Rule 5.07, Code of Judicial Conduct which prohibits a judge from engaging in the private practice of law (f) Re: Charge of appearing in personal cases without prior authority from the Supreme Court and without filing the corresponding applications for leaves of absence on the scheduled dates of hearing In support of the above charges, the memorandum report states: i. Judge Floro, Jr. informed the audit team that he has personal cases pending before the lower courts in Bulacan. He admitted that Atty. Bordador, the counsel of record in some of these cases, is just signing the pleadings for him while he (Judge Floro, Jr.) acts as collaborating counsel. When attending the hearing of the cases, Judge Floro, Jr. admitted that he does not file an application for leave of absence. Based on the reports gathered by the audit team, Judge Floro, Jr. has a pending civil case in the Regional Trial Court of Malolos, Bulacan and a criminal case in Municipal Trial Court, Meycauayan, Bulacan. It is reported that in these cases, he is appearing and filing pleadings in his capacity as party and counsel for himself and even indicating in the pleadings that he is the Presiding Judge of Branch 73, RTC, Malabon. Upon verification by the audit team, it was found out that Judge Floro, Jr. indeed has a pending case before the Regional Trial Court, Branch 83, Malolos, Bulacan docketed as Civil Case No. 46-M-98, entitled: In Re: In the Matter of the Petition for Habeas Corpus of Robert V. Floro, Atty. Florentino V. Floro, Jr., Petitioner - versus Jesie V. Floro and Benjamin V. Floro. In this case Judge Floro, Jr. filed an Ex-Parte Motion for Issuance of Entry of Judgment with Manifestation and/or Judicial Admission wherein he signed as the petitioner and at the same time indicated that he is the presiding judge of RTC, Branch 73, Malabon, Metro Manila. Court stenographer Marissa Garcia, RTC, Branch 83, Malolos, Bulacan confirmed this information. Judge Floro, Jr. even attached a copy of his oath taking and his picture together with President Joseph Estrada to the aforesaid pleading. Photocopy of the said Motion is hereto attached as Annex 9.

Judge Floro, Jr. has a pending request with the Court Management Office, Office of the Court Administrator, to appear as counsel or collaborating counsel in several civil cases (except the above-mentioned case) pending before lower courts.[76]

case and does not in any wise constitute private practice of law. Moreover, we cannot ignore the fact that Judge Floro is obviously not lawyering for any person in this case as he himself is the petitioner.

Well ensconced is the rule that judges are prohibited from engaging in the private practice of law. Section 35, Rule 138 of the Rules of Court unequivocally states that: No judge or other official or employee of the superior courts or of the Office of the Solicitor General, shall engage in private practice as member of the bar or give professional advice to client. Canon 5, Rule 5.07 of the Code of Judicial Conduct, on the other hand, provides that: A judge shall not engage in the private practice of law.

Be that as it may, though Judge Floro might not be guilty of unauthorized practice of law as defined, he is guilty of unbecoming conduct for signing a pleading wherein he indicated that he is the presiding judge of RTC, Branch 73, Malabon City and for appending to the pleading a copy of his oath with a picture of his oath-taking. The only logical explanation we can reach for such acts is that Judge Floro was obviously trying to influence or put pressure on a fellow judge by emphasizing that he himself is a judge and is thus in the right.[83] Verily, Canon 2, Rule 2.04 of the Code of Judicial Conduct mandates that a judge shall refrain from influencing in any manner the outcome of litigation or dispute pending before another court or administrative agency. By doing what he did, Judge Floro, to say the least, put a fellow judge in a very awkward position.

Judge Floro vehemently denies the foregoing charge claiming that he hired lawyers to attend to his personal cases.[77] A scrutiny of the voluminous records in this case does not reveal any concrete proof of Judge Floro having appeared as counsel in his personal cases after he had already been appointed Judge except that he prepared a pleading (Ex Parte Motion For Issuance of Entry of Judgment With Manifestation and/or Judicial Admission) jointly with his counsel of record in connection with a habeas corpus case he filed against his brothers for the custody of their mild, mentally-retarded brother. He explained, however, that he prepared the said pleading in the heat of anger as he could not accept the judgment of dismissal in that case.[78] He likewise explained that the pleading was signed by him alone due to inadvertence and that he had rectified the same by filing an Amended Manifestation with Affidavit of Merit.[79] Finally, during the hearing of this case, Judge Floro argued that he filed the subject pleading as petitioner and not as counsel.[80] The proscription against the private practice of law by judges is based on sound public policy, thus: [T]he rights, duties, privileges and functions of the office of an attorney-at-law are inherently incompatible with the high official functions, duties, powers, discretion and privileges of a judge. It also aims to ensure that judges give their full time and attention to their judicial duties, prevent them from extending special favors to their own private interests and assure the public of their impartiality in the performance of their functions. These objectives are dictated by a sense of moral decency and desire to promote the public interest.[81] Based on the above rationale, it becomes quite evident that what is envisioned by private practice is more than an isolated court appearance, for it consists in frequent or customary action, a succession of acts of the same nature habitually or customarily holding ones self to the public as a lawyer.[82] In herein case, save for the Motion for Entry of Judgment, it does not appear from the records that Judge Floro filed other pleadings or appeared in any other court proceedings in connection with his personal cases. It is safe to conclude, therefore, that Judge Floros act of filing the motion for entry of judgment is but an isolated

As to charge (f), the OCA has failed to substantiate its claim that Judge Floro has been attending the hearing of his personal cases without filing for leave of absence. As Judge Floro vehemently protests the charge as untrue, it was incumbent upon the OCA to prove its case. Time and again we have held that although administrative proceedings are not strictly bound by formal rules on evidence, the liberality of procedure in administrative actions is still subject to limitations imposed by the fundamental requirement of due process.[84] (k) Re: Charge of openly criticizing the Rules of Court and the Philippine justice system (l) Re: Charge of use of highly improper and intemperate language during court proceedings The memorandum report reads: In the course of the judicial audit, the audit team was able to observe the way Judge Floro, Jr. conducts court proceedings. With the assistance of the court staff, the team was able to obtain a tape-recorded proceeding conducted by Judge Floro, Jr. Attached is the transcript of the proceedings (Annex 15). The tape record of the court proceedings is also submitted along with this report as Exhibit A. xxxx The case for hearing that day was Civil Case No. 1256 MM. A certain Atty. Abelarde was appearing for the plaintiff while Atty. Emmanuel Basa was appearing for the defendant. During the hearing, it seems that the counsels for both parties were guiding Judge Floro, Jr. on how to proceed with the trial. There was one instance when Judge Floro, Jr. criticized the Rules of Court, to wit:

Judge Floro, Jr.: Kasi nga ang may plano nito ay ang Rules of Court, hindi nila maayos ang Rules of Court natin, hindi realistic kinopya lang sa law of California on Civil Procedure; pagdating dito eh dahil sa kanila maraming nagkakaproblema, masyadong maraming eh ako wala akong pinagkopyahan yan but ginawa ko lang yon Sabi ko si Judge nagko-complain kasi, sabi ko nga pagka ang lawyer hindi alam yan talo na sa akin except na hindi papayag kasi marami diyang In another proceeding conducted on a different day, Judge Floro, Jr., instead of holding trial, discussed, in open court, the case involving his brother. He even condemned the Philippine justice system and manifested his disgust on the unfairness of the system. Thus, he said:

taken officially during a court proceeding, cannot be used against Judge Floro as the unauthorized recording of a private conversation is inadmissible under Rep. Act No. 4200.[87] Without the tape and transcribed copies of the contents thereof, we are thus left with only Judge Floros word against that of Atty. Dizon, his Clerk of Court who testified under oath as to Judge Floros alleged propensity to criticize the judiciary and to use intemperate language. Resolving these particular charges would therefore depend upon which party is more credible. Atty. Dizon stated on the witness stand that:

Sabi ko paano ko matatagpuan ang katarungan dito sa korteng eto bulok ang hustisya. Ang kapatid ko napakayaman, ako walang pera.

Q: Is Judge Floro guilty of Violation of Canon 1 Rule 1.01 Code of Judicial Conduct when he openly criticized the Rules of Court and the Philippine Justice System?

He continued:

A: Yes. Judge Floro has mentioned to each and everyone of us in branch 73 the alleged kabulukan ng hustisya. Time and again he said the Rules of Court is of no use. He said that since theory and the practice of law are very different, the Rules of Court does not always apply to different cases. Not only the justice system did he criticize but likewise Judges and Justices. He told us . . . and I quote Dyan sa Malolos sangkatutak ang corrupt na Judges . . . Sa Court of Appeals P25,000.00 ang pinakamababang lagayan diyan.

Yung kapatid ko. Hindi ko makuha kundi makita ko lang. Bawal kasi; yung kapatid ko retarded, bawal. In memory of my brother, Robert Floro. So, ngayon nag-file ako. Sabi ni Judge Agloro senermonan pa ako, ganun ganun Sabi ko paano ko makikita ang katarungan. Tapos ngayon ang nangyari di Judge na ako, hindi ko pa nakita ang kapatid ko. Di ngayon, ang ginawa ko na-dismiss na yung case, hindi ko inano kasi wala akong nakikitang katarungan dahil ang kapatid ko ay napakaraming pera. Alam ko naman kung ang isang court eh parehas o may kiling eh. Yung abogado niya malakas na malakas doon. Sana hindi naka-record eto (laughs) baka ako ma-contempt dito.[85] Judge Floro denies the foregoing accusations, emphatically arguing that these are all hearsay fabrications supplied by his Clerk of Court, Atty. Dizon, and by disgruntled RTC personnel due to ill or ulterior motives (i.e., to allegedly cover-up their consistent tardiness, habitual absenteeism and gross neglect of duties which were all unearthed by Judge Floro). As to the tape recording of an alleged court hearing wherein he criticized the Philippine judicial system, Judge Floro contends that this recording was done clandestinely by his staff in violation of the Anti-Wire Tapping Law (Republic Act No. 4200) and, to suit their plans, they twisted the facts by cutting portions thereof. They also made it appear that the conversation took place in a court proceeding when, in fact, this was inside his chambers. During the investigation, it was established that the two tapes in question were submitted to the OCA sans the yellow notes and the official transcribed copy thereof.[86] This means that the transcribed copy that was submitted by the audit team as Annex 15 is but an unofficial copy and does not, by itself, prove that what was being recorded was a court proceeding.This being the case, the two tapes, without concrete proof that they were

To our mind, how can a Judge like him openly criticize the very institution he is now serving? Where is his respect to the court, to the bar and to the bench? How can he uphold courts as temples of justice if he himself did not believe in the justice system? xxxx Q What can you say about charge letter L which reads for the use of highly improper and intemperate language during court proceedings? A Judge Floro, if in the presence of all his staff, during the presence of me, the Court Interpreter, the Legal Researcher, maybe a Clerk, he always discuss matters regarding practitioners in our court. There is one time one Atty. Feliciano a lady lawyer, he said, Luka-luka, talaga yang babaing yan and then he would call even not during court session, but during office hours our Court Interpreter malandi, luka-luka, may fruit of the sun. So, it did not surprise us one time when during a pre-trial conference in a Civil Case, for Civil Case No. 25-86-MN Lopez v. Reyes and Mercado, he uttered offensive language against his fellow judge. Take the transcription of this court proceeding is already adapted by the Court Administrator. It was the content of the tape he sent the Court Administrator. Actually, for consultation and advise after hearing what Judge Floro discussed in open Court, before all of us, the court staff present in the hearing and before the lawyer and the defendants in the case, we were in quandary whether or not to attach in the record the stenographic notes or even the actual transcription of the proceedings because it

contained offensive languages against the justice system, against a certain judge, against a certain Clerk of Court named Jude Assanda, against people he is disgusted with. In fact, instead of discussing the merit of the case or the possibility of the amicable settlement between the parties, he integrated this kind of discussion. So, as a Clerk of Court, I may not use my discretion whether or not to advise the stenographer to indeed present the same or attach the same in the record because it contained offensive languages highly improper and intemperate languages like for example, putang ina, words like ako ang anghel ng kamatayan, etcetera, etcetera.[88] The denials of Judge Floro are insufficient to discredit the straightforward and candid declarations of Atty. Dizon especially in the light of confirming proofs from Judge Floro himself. The Court finds the version of Atty. Dizon more credible because subject utterances are consistent with Judge Floros claims of intellectual superiority for having graduated with several honors from the Ateneo School of Law and having placed 13th in the bar examinations. Moreover, his utterances against the judicial system on account of his perception of injustice in the disposition of his brothers case are not far removed from his reactions to what he perceived were injustices committed against him by the OCA and by the persons who were either in charge of the cases against him or had some sort of participation therein. Consequently, although there is no direct proof that Judge Floro said what he is claimed to have said, nonetheless, evidence that he sees himself as intellectually superior as well as evidence of his habit of crying foul when things do not go his way, show that it is more likely that he actually criticized the Rules of Court and the judicial system and is thus guilty of unbecoming conduct. Verily, in administrative cases, the quantum of proof necessary for a finding of guilt is substantial evidence or such relevant evidence as reasonable mind might accept as adequate to support a conclusion.[89] In this case, there is ample and competent proof of violation on Judge Floros part. (m) Re: Charge of violating Circular No. 13-87 dated 1 July 1987 The memorandum report stated that Judge Floro [D]eviat[ed] from the regular course of trial when he discusses matters involving his personal life and beliefs. Canon 3, Rule 3.03 provides that [a] judge shall maintain order and proper decorum in the court. A disorderly judge generates disorderly work. An indecorous judge invites indecorous reactions. Hence, the need to maintain order and proper decorum in court. When the judge respects himself, others will respect him too. When he is orderly, others will follow suit. Proceedings in court must be conducted formally and solemnly. The atmosphere must be characterized with honor and dignity befitting the seriousness and importance of a judicial trial called to ascertain the truth. Anything which tends to detract from this atmosphere must be avoided. And the

judge is supposed to be in control and is therefore responsible for any detraction therefrom. Circular No. 13 (Guidelines in the Administration of Justice) dated July 1, 1987 provides that trial of cases should be conducted efficiently and expeditiously. Judges should plan the course and direction of trials so that waste of time is avoided. Moreover, a judge should avoid being queer in his behavior, appearance and movements. He must always keep in mind that he is the visible representative of the law. Judge Floro, Jr.s claims that he is endowed with psychic powers, that he can inflict pain and sickness to people, that he is the angel of death and that he has unseen little friends are manifestations of his psychological instability and therefore casts doubt on his capacity to carry out the functions and responsibilities of a judge. Hence, it is best to subject Judge Floro, Jr. once again to psychiatric or mental examination to ascertain his fitness to remain in the judiciary.[90] Circular No. 13-87, by itself, does not define nor punish an offense but, as its title would suggest, it merely sets the guidelines in the administration of justice following the ratification of the 1987 Constitution. The arguments forwarded by the OCA, however, best exemplify the fact that the 13 charges are inextricably linked to the charge of mental/psychological illness which allegedly renders Judge Floro unfit to continue discharging the functions of his office. This being the case, we will consider the allegation that Judge Floro proclaims himself to be endowed with psychic powers, that he can inflict pain and sickness to people, that he is the angel of death and that he has unseen little friends in determining the transcendental issue of his mental/psychological fitness to remain in office. But before we even go into that, we must determine the appropriate penalty to be imposed for the seven of the 13 charges discussed above. To recapitulate, we have found Judge Floro guilty, in one way or another, of seven of the 13 charges against him. Thus: 1)

Charge a - simple misconduct

2)

Charges c and g gross ignorance of the law

3)

Charge d unbecoming conduct

4)

Charge e unbecoming conduct

5)

Charges k and l unbecoming conduct

Gross ignorance of the law or procedure is a serious charge. Under Rule 140 as amended, a judge guilty of a serious charge may be dismissed from the service, suspended from office without salary and other benefits for more than three but not exceeding six months

or fined in the amount of P 20,000.00 but not exceeding P 40,000.00 depending on the circumstances of the case. In herein case, considering that Judge Floro had barely warmed his seat when he was slammed with these charges, his relative inexperience is to be taken in his favor. And, considering further that there is no allegation or proof that he acted in bad faith or with corrupt motives, we hold that a fine is the appropriate penalty. The fine is to be imposed in the maximum, i.e. P 40,000.00, as we will treat the findings of simple misconduct and unbecoming conduct as aggravating circumstances.[91] Judge Floro must be relieved of his position as Judge of RTC Malabon Branch due to a medically disabling condition of the mind that renders him unfit to discharge the functions of his office As we have explained, the common thread which binds the 13 seemingly unrelated accusations in A.M. No. RTJ-99-1460 is the charge of mental illness against Judge Floro embodied in the requirement for him to undergo an appropriate mental or psychological examination and which necessitated his suspension pending investigation. This charge of mental illness, if true, renders him unfit to perform the functions of his office notwithstanding the fact that, in disposing of the 13 charges, there had been no finding of dismissal from the service against Judge Floro. The Supreme Court Clinic first had occasion to interview Judge Floro when the latter applied for judgeship (which application he later voluntarily withdrew) way back in September 1995. The psychological report, as prepared by Cecilia C. Villegas, M.D. (Director III, Chief SC Clinic Services) and Melinda C. Grio (Psychologist), stated in part:

PSYCHIATRIC EVALUATION:

of power in psychic phenomenon as when his bar results was to be released, he saw lights in the sky no. 13-1, and he got the 13th place. He has been practicing parapsychology seeing plenty of dwendes around him. He can talk on and on of bizarre ideas, that tends (sic) to be irrelevant. Intellectually, he has high assets, however, evidence of ego disintegration are prominent findings, both in the interview (conscious) and psychological test results. (unconscious level).[92] Approximately three years later, in June 1998, Judge Floro again presented himself to the Supreme Court Clinic when he applied anew for judgeship, this time of RTC Malabon.Psychologist Beatriz O. Cruz and Celeste P. Vista, M.D. (Psychiatrist and Medical Officer IV) did the interview and evaluation. Dr. Vista observed: Atty. Floro has an impressive academic achievements (sic), and he takes pride in this. During the interview, he was quite reluctant to reveal information about his family background and would rather talk about his work and academic achievements. However, he failed to integrate his knowledge into a cohesive unit which he can utilize to cope with the various tasks that he undertakes. This renders him confused and ambivalent with a tendency to vacillate with decision-making. He also has a low self-esteem and prone to mood swings with the slightest provocation. From the interview, there seems to have been no drastic change in his personality and level of functioning as a lawyer in private practice. However, he showed a pervasive pattern of social and interpersonal deficits. He has poor social skills and showed discomfort with close social contacts. Paranoid ideations, suspiciousness of others motives as well as perceptual distortions were evident during the interview.

There are evidences of developing psychotic process at present. REMARKS: Atty. Floro was observed to be restless and very anxious during the interview. He was argumentative and over solicitous of questions asked, giving the impressions of marked suspiciousness. He centered on his academic excellence, an Ateneo de Manila graduate of the College of Law, rated top 13th place in the bar examination. He emphasized his obsessive and compulsive method of studying, at least 15 hours per day regardless of whether it was school days or vacation time. Vying for honors all the time and graduated Law as second honor, he calls this self-discipline and self-organization. He expressed dissatisfaction of his achievements, tend to be a perfectionist and cannot accept failures. To emphasize his ultra bright mind and analytical system, he related that, for the past 3 to 5 years, he has been experiencing Psychic vision every morning and that the biggest secret of the universe are the unseen things. He can predict future events because

Atty. Floros current intelligence function is along the mild mental retardation (68) which is below the expected cognitive efficiency of a judge. Despite his impressive academic background and achievements, he has lapses in judgment and may have problems with decision-making. His character traits such as suspiciousness and seclusiveness and preoccupation with paranormal and psychic phenomena though not detrimental to his role as a lawyer, may cloud his judgment, and hamper his primary role as a judge in dispensing justice. Furthermore, he is at present not intellectually and emotionally equipped to hurdle the responsibilities of a judge and he may decompensate when exposed to anxiety-provoking and stress-laden situation.[93] It would seem that the JBC disregarded the above-quoted report as it allowed Judge Floro to seek a second opinion from private practitioners. A.M. No. RTJ-99-1460, however, resurrected the issue of his mental and psychological capacity to preside over a regional

trial court. Thus, the Resolution of 20 July 1999 specifically ordered Judge Floro to submit to appropriate psychological or mental examination.

delusional disorder with movement in the paranoid direction. Dr. Celeste Vista, for her part, stated that:

On 1 February 2000, per recommendation of Justice Ramirez,[94] the Court clarified that the appropriate psychological or mental examination being adverted to in the Resolution of 20 July 1999 is to be conducted by the SC Clinic. The Court thereby directed Judge Floro to submit himself to the SC Clinic for psychological or mental examination, within ten (10) days from notice.[95] Judge Floro sought reconsideration which was denied by the Court on 22 February 2000.[96]

Based on the clinical data gathered, it appears that Judge Floro is basically a cautious, and suspicious individual with a compulsion to analyze and observe motives in his milieu. Despite his status, cognitive assets and impressive educational background, his current functioning is gauged along the LOW AVERAGE intelligence.

The order to submit to the appropriate psychological examination by the SC Clinic was reiterated by the Court on 17 October 2000 with the admonition that Judge Floros failure to do so would result in appropriate disciplinary sanctions.[97] On 24 October 2000, Judge Floro sought reconsideration of the 17 October 2000 Resolution with a conjunctive special motion for him to undergo psychiatric examination by any duly authorized medical and/or mental institution.[98] This was denied by the Court on 14 November 2000.[99] On 10 November 2000, Judge Floro moved, among other things, for the inhibition or disqualification of Supreme Court Clinic doctors[100] and psychologist[101] with a manifestation that he filed cases against them for revocation of licenses before the Professional Regulatory Commission (PRC), the Philippine Medical Association (PMA) and the PAP[102] for alleged gross incompetence and dishonorable conduct under Sec. 24 of Rep. Act No. 2382/1959 Medical Act/Code of Medical Ethics.[103] On 16 November 2000, Justice Ramirez, with the approval of Court Administrator Benipayo, moved that Judge Floro be sanctioned for obvious contempt in refusing to comply with the 1 February 2000 and 17 October 2000 resolutions. According to Justice Ramirez, Judge Floros filing of administrative cases with the PRC against Dr. Mendoza, et al., is an indication of the latters intention to disregard and disobey the legal orders of the Court.[104] The Court en banc agreed in the report of Justice Ramirez, thus Judge Floro was ordered to submit to psychological and mental examination within 10 days from receipt, otherwise, he shall be ordered arrested and detained at the jail of the National Bureau of Investigation (NBI) x x x.[105] Judge Floro finally complied with the directive on 13 and 15 December 2000.[106] He likewise sought the services of a private practitioner, Dr. Eduardo T. Maaba, who came out with his own evaluation of Judge Floro on 3 January 2001.[107] Thus, Judge Floro trooped to the Supreme Court Clinic for the third time in December 2000, this time in connection with A.M. No. RTJ-99-1460. Francianina G. Sanchez, Clinical Psychologist and Chief Judicial Staff Officer reported that (o)ver all data strongly suggest a

He can function and apply his skills in everyday and routine situations. However, his test protocol is characterized by disabling indicators. There is impairment in reality testing which is an indicator of a psychotic process. He is unable to make an objective assessment and judgment of his milieu. Hence, he is apt to misconstrue signals from his environment resulting to perceptual distortions, disturbed associations, and lapses in judgment. Such that, cultural beliefs in dwarfs, psychic and paranormal phenomena and divine gifts of healing have become incorporated in a delusional (false and unshakable beliefs) system, that it has interfered and tainted his occupational and social functioning. Hence, he is found to be unfit in performing his court duties as a judge.[108] Pursuant to the aforecited December 2000 interview of Judge Floro, Supreme Court Senior Chief Staff Officer Rosa J. Mendoza, M.D., reported to Chief Justice Hilario G. Davide, Jr. in March 2001 that The findings of mental and psychological incapacity is thus substantially supported by evidence. Based on the three [3] psychological tests and evaluation of the two [2] psychiatrists, the undersigned has no other recourse but to recommend that Judge Florentino Floro be declared unfit to discharge his duties as a Judge, effective immediately. Not one to take this last recommendation sitting down, Judge Floro submitted earlier psychological evaluations conducted by several mental health professionals which were all favorable to him. The first three evaluations were in connection with his application as RTC Judge of Malabon City in 1998 brought about by him having failed the examination given by the Supreme Court Clinic. The report dated 04 September 1998 by staff psychologist, Rowena A. Reyes as noted by clinical Psychologist, Ma. Teresa Gustilo-Villasor of the Metropolitan Psychological Corporation (MPC), states in part: I. INTELLECTUAL/COGNITIVE CHARACTERISTICS SUMMARY OF INTELLECTUAL/COGNITIVE CHARACTERISTICS 1. FFJ can draw from above average intellectual resources to cope with everyday demands. He is able to handle both concrete and abstract requirements of tasks. Alert to details, he has a logical approach in evaluating the relationship between things and ideas.

2. He thrives in predictable and structured situations, where he can consider solid facts to arrived (sic)at concrete, tangible outcomes. Task-oriented, he can organize procedures and details so as to get things done correctly and on schedule. He uses conventional standards to determine personal progress. Set in his views, he may not readily accept others ideas and contributions especially if these oppose his own. 3. A serious and thorough approach to his commitments is expected of FFJ. Generally, he prefers to control his emotions and does not let this get in the way of his judgment and decisions. II. EMOTIONAL/INTERPERSONAL CHARACTERISTICS FFJ is motivated by the need to be recognized and respected for his undertakings. Achievement-oriented, he sets high personal standards and tends to judge himself and others according to these standards. When things do not develop along desired lines, he may become restless and impatient. Nevertheless, he is careful of his social stature and can be expected to comply with conventional social demands.[109] Testifying as one of Judge Floros witnesses, Rowena A. Reyes opined on crossexamination that psychologically speaking, Judge Floro was not fit to be a judge. Thus:

A: Yes, Sir. Q: Fatal [flaw]? A: Yes, Sir. Q: Did Judge Floro tell you also in the course of the interview that he is capable of being in a trance? A: He did not. Q: So, he did not tell you that while in a trance he could type letters? A: He did not. xxxx Q: And reality oriented and a reality oriented person is one who will not be pronouncing or making pronouncement concerning his psychic powers. Is this not correct? xxxx

JUDGE AQUINO:

A: Yes sir.

Q: Now, that we are telling you that Judge Floro based on his testimony here and on every available records of the proceedings, has been claiming that he [is] possessed with Psychic Powers and he did not tell you that in the interview. Would you consider his failure to tell you about his Psychic Powers to be a fatal [flaw]?

Q: A reality oriented person is also one who will not claim that he is capable of having trances in the course of his private activities and even in the course of the performance of his official duty as a Judge.Will you not agree with that?

xxxx

A: I agree with you, Sir.

Q: Very grave one, because it will affect the psychological outlook of the patient?

Q: And if he will do so, he will not be actually a reality oriented person. Meaning tatagalugin ko na po nakukuha naman na ako ay psychic, na ako ay pwedeng ipower ng by location, na kaya kong mag trance. Gumawa pa ng ibat iba pang bagay at the same time. Yan ay hindi compatible sa pagiging reality oriented?

A: Yes, Sir.

A: Yes, Sir.

xxxx

Q: And a person who is not reality oriented is not fit to sit as a Judge.

Q: I tell you now, Judge Floro has been claiming in [these] proceedings and you were here when we were cross-examining Mr. Licaoco and you heard that we mentioned in the course of our cross-examination. Would you consider his failure to tell you about his power of by location to be a fatal [flaw] and your assessment of his psychological outlook?

xxxx

A: Yes, Sir.

xxxx

Q: I will add the phrase Psychologically speaking. xxxx A: Yes, Sir.[110]

Another psychiatrist, Pacita Ramos-Salceda, M.D., Senior Consultant Psychiatrist of the Makati Medical Center, stated in her report dated 3 September 1998 that at the time of the interview Judge Floro

A: He did not.

[W]as enthusiastic and confident. He is well informed about current issues, able to discuss a wide variety of topics intelligently without hesitation. His thinking is lucid, rational, logical and reality based.He is well oriented, intelligent, emotionally stable, with very good judgment. There is no previous history of any psychological disturbances.[111]

Q: He did not tell you also that in [traveling] from one place to another, at least four (4) kilometers apart, he used to ride on a big white or whatever it is, horse?

This was followed by the evaluation of Eduardo L. Jurilla, M.D., dated September 1998, who stated in his report that Atty. Floro is an asthenic, medium height, fairly groomed, be-spectacled person with graying hair. When interviewed he was somewhat anxious, elaborative and at times approximate in his answers. He was alert, oriented, conscious, cooperative and articulate in Pilipino and English. He denied any perceptual disturbances. Stream of thought was logical and goal-directed. There was pressure of speech with tendency to be argumentative or defensive but there were no flight of ideas, thought blocking, looseness of associations or neologisms. Delusions were not elicited. Affect was broad and appropriate but mood was anxious. There were no abnormal involuntary movements or tics. Impulse control is good. Cognition is intact. Judgment, insight, and other test for higher cortical functions did not reveal abnormal results.

xxxx

A: Not during our interview. xxxx A: It is possible like any other psychiatrist or mental health doctor you might have missed some information or it is possible that our clients or patients might not [have] told us everything. Q: And if your clients or patients did not tell you things such as those that Judge Floro did not admittedly tell you in the course of the interview, your opinion of the patient would be altered a little? xxxx A: The answer has something to do whether my evaluation may be altered. Yes, Your Honor in the absence of any corroborative contradiction.

Comments: The over-all results of this psychiatric evaluation of Atty. Florentino V. Floro, Jr. do not contradict his nomination and appointment to the post he is seeking.[112]

Q: More so, if the presence of confirming events that transpired after the interview, would that be correct?

On the witness stand, however, and testifying as Judge Floros witness, Dr. Jurilla clarified that the interview had its limitations[113] and he might have missed out certain information left out by his patient.[114] The following exchange is thus instructive:

A: The interview has its limitations.

JUDGE AQUINO: x x x. Did Judge Floro tell you in the interview that he has little unseen, unheard friends known as duwendes? DR. JURILLA: He did not. xxxx Q: Did you interview Judge Floro or did he [volunteer] to you information about his claim to be the number five psychic in the country?

Q: Let us say, what Judge Floro did [not] tell you during the interview are confirmed by events that transpired after the interview, would you not say you have more reason to have your evaluation altered? A: Yes. Q: Especially so if you will now know that after that interview Judge Floro has been proclaiming himself as the number five psychic in the country [where] no one has called him as a psychic at all? xxxx

xxxx

Q: Would it be really more altered?

A: No, Your Honor.

A: I would say so.

Q: He did not tell you also that he is gifted also with this so called, psychic phenomena?

xxxx

Q: Returning to the confirming proofs, meaning after the interview, which are confirmations of what Judge Floro did not tell you during the interview, would your finding of [J]udge Floro be drastically altered if he will tell you that he is capable or possessed of the power of bilocation? xxxx A: I would probably try to for a diagnosis. Q: Which may make a drastic alteration of your evaluation of Judge Floros mental and psychological x x x? A: My diagnosis I will be seeking for an abnormal condition. Q: When you said abnormal something would have made you suspect that there was abnormality in the person of Judge Floro? A: Given the data. Q: We will give you the data or additional information. Would you also have your evaluation favorable to Judge Floro drastically altered if I tell you that based on record Judge Floro has claimed that while in a trance he is capable of typing a letter? xxxx A: If there is data toward that effect prior to September 1998, probably drastically altered.[115] Lastly, Judge Floro presented the psychiatric evaluation of Eduardo T. Maaba, M.D.,[116] dated 3 January 2001, the relevant portions of which state: Affect was adequate and no mood incongruity was observed. Content of thought did not reveal delusional thought. He was proud of his achievements in line with his profession and expressed his frustration and dissatisfaction with the way his colleagues are handling his pending administrative cases. He was observed to be reality-oriented and was not suffering from hallucinations or abnormal perceptual distortions. Orientation, with respect to time, place and person, was unimpaired. Judgment and decision-making capacity were adequately functioning. xxxx An open-ended clinical interview was conducted at our clinic on December 26, 2000. He talked about his family and academic achievements. He claimed to possess a divine gift for prophecy and a gift of healing. He also talked about a covenant made during a dream between him and 3 dwarf friends named Luis, Armand and Angel. He reported that the

first part of his ministry is to cast illness and/or disease and the second part is to heal and alleviate sufferings/pain from disease. A series of psychological test was administered to Judge Floro on December 28, 2000. The battery of test consisted of the following: (1) Otis-Lennon Mental Ability Test (2) SRA Language Test (3) Purdue Non-Language Test (4) Sacks Sentence Completion Test and (5) Draw A Person Test. Test results and evaluation showed an individual with an Above Average Intelligence. Projective data, showed an obsessive-compulsive person who is meticulous to details and strive for perfection in tasks assigned to him. He is realityoriented and is deemed capable of making day-to-day decisions in his personal as well as professional decisions. Confusion with regard to sexual identification, was further observed. Based on the clinical observation and the results of the psychological tests, respondent Judge Florentino V. Floro, Jr., was found to be a highly intelligent person who is realityoriented and is not suffering from any major psychotic disorder. He is not deluded nor hallucinated and is capable of utilizing his superior intellect in making sound decisions. His belief in supernatural abilities is culture-bound and needs further studies/work-ups. On cross-examination by Judge Aquino, however, Dr. Maaba also stated that Judge Floro was unfit to be a judge.[117] The relevant exchanges between Dr. Maaba and Judge Aquino are hereunder reproduced: JUDGE AQUINO: And would you say that something is wrong with a judge who shall claim that he is possessed with power of [bi-location]? xxxx DR. MAABA: A reality-oriented individual would not claim to be in two (2) places at one time. Q: And that something must be wrong? A: Yes. Q: Okay. Would you say that something is wrong also with a judge claiming in the course of his testimony and in this very case that while [he] was so testifying there is another spirit, another person, another character unseen who is with him at the same time or in tagalog sumapi sa kanya. xxxx A: The observation that Judge Floro had unseen companion sumapi to me is unbelievable. Q: Unbelievable. And anyone claiming it might be suffering from some delusion?

xxx A: It could be and it could not be considered as perceptual distortion, your Honor. Q: No, Delusion. A: Delusions, no, but Hallucinations, maybe yes. Q: Ah, Hallucination, and which maybe worse?

concentration if that person sitting as a judge experience trance as in the case of Judge Floro, this trance is manifested by flashing of lights and he might not be able to rationalize or to control expressions or as well as physical when he is in a trance. Q: Have you heard of a judge claiming that in the course of a proceeding, he was in a trance? A: No, I have not encountered any.

A: Both are on the same footing.

Q: And if you hear one and will be shown records of one maybe such claim you will call that person not a normal person.

Q: Okay. Would you say that the person declaring in a proceeding as a witness about hallucinatory matters would turn out to be fit to become a judge?

A: Maybe weird.

xxxx A. If these delusions or hallucinations are part and parcel of a major psychiatric disorder like schizophrenia or an organic mental disorder, this individual suffering from hallucinations or delusions is unfit to sit as a judge, however, there is, this symptom might also exi[s]t in a non-psychotic illness and the hallucinations and delusions could be transient and short in duration. Q: But of doubtful capacity to sit as a judge? A: Yes, doubtful capacity. Q: Now, trance is something covered by the field of which you are practicing with psychiatry. A: Yes. Q: Would you consider a person claiming in the course of a judicial, quasi-judicial or administrative proceedings particularly in the course of his testimony that while he was doing so, he was under trance normal. xxxx A: Let me explain the phenomenon of trance it is usually considered in the Philippines as part of a culture bound syndrome and it could also be an indication Basically the phenomenon of trance are often seen in cases of organic mental disorder. It is also common in culture bound syndrome and the effect of person is usually loss of concentration in a particular settings or situations so that a person or a judge hearing a case in court would [lose] concentration and would not be able to follow up testimony of witnesses as well as arguments given by the counsel for the defense and also for the prosecution, so I would say that there is this difficulty in manners of attention span and

Q: I will now show to you portions of the stenographic notes of the proceedings in these cases held on October 10, 2000, afternoon session, page 30 we start with the question of Atty. Dizon. Atty. Dizon: Mr. witness, can you tell us? Are you in trance at this very precise moment? JUDGE FLORO, JR.: Nakalakip sila. I call it a trance, but I distinguished not the trance that you see the nag-sa-Sto., Nino, naninigas. Thats a trance that is created by the so called Because Fr. Jaime Bulatao, multi awarded Jesuit priest, considered that as mind projection. He is correct in a sense that those nagta-trance na yan, naninigas, the mind projection or the hypnosis do come, and there is a change in the psychological aspect of the person. But in my case I never was changed physically or mentally. Only the lights and heat will penetrate that person. ATTY. DIZON: That will do. So at this very moment, Mr. witness, meron kayong kalakip ngayon? Ngayong oras naito? JUDGE FLORO: Yes, they are here. Atty. DIZON: Where are they? JUDGE FLORO, JR.: They cannot be seen but ATTY. DIZON: No, can you see them? To point to us where are they in this room?, Now that you have read and seen this portion wherein Judge Floro himself admitted that in the course of his testimony in these cases he was in a trance, would you still consider him at least insofar as this claim of his to be a normal person? A: No. Q: No, okay, so he is not normal. Now, Judge Floro in these proceedings also and I will show to you the transcript of stenographic notes later have claimed that he had, always had and still had a socalled counter part, his other side, other self, what can you say to that claim, would that be the claim of a normal, mental sound person? A: No. Q: And one who is not normal and mentally sound is of course not fit to sit as judge? xxx

A: Yes.[118]

Based on the foregoing, the OCA, thru Justice Ramirez, reported that: Upon the testimony of his own witnesses, Drs. Eduardo T. Maaba, Ma. Nieves Celeste and Eduardo L. Jurilla, respondent Judge Florentino V. Floro, Jr. is unfit because of insanity to remain in office as Judge of the Regional Trial Court, National Capital Judicial Region, Malabon, Metro Manila, Branch 73. It is weird for respondent Judge to state in one of his pleadings in this case that President Estrada would not finish his term as President. It is unusual and queer of him to state in his calling card that he is a graduate of Ateneo de Manila, second honors, bar topnotcher with a grade of 87.55% and include in his address the name Colonel Reynaldo Cabauatan who was involved in a coup detat attempt. So is it strange of him to make use of his alleged psychic powers in writing decisions in the cases assigned to his court. It is improper and grandiose of him to express superiority over other judges in the course of hearings he is conducting and for him to say that he is very successful over many other applicants for the position he has been appointed. It is abnormal for a Judge to distribute self-serving propaganda. One who distributes such self-serving propaganda is odd, queer, amusing, irresponsible and abnormal. A judge suffering from delusion or hallucination is unfit to be one. So is he who gets into a trance while presiding at the hearing of a case in court. One need not be a doctor of medicine, a psychiatrist and a psychologist to determine and conclude that a person in such circumstances is mentally unfit or insane and should not be allowed to continue discharging the duties and functions of a judge. The life, liberty and property of the litigants in the court presided by such judge are in his hands. Hence, it is imperative that he is free from doubt as to his mental capacity and condition to continue discharging the functions of his office. RECOMMENDATION WHEREFORE, it is respectfully recommended that by reason of insanity which renders him incapable and unfit to perform the duties and functions of Judge of the Regional Trial Court, National Capital Judicial Region, Malabon, Metro Manila, Branch 73, respondent Florentino V. Floro, Jr. be REMOVED and DISMISSED from such office.[119] We are in agreement with the OCA that Judge Floro cannot remain as RTC Judge because of the findings of mental impairment that renders him unfit to perform the functions of his office. We hasten to add, however, that neither the OCA nor this Court is qualified to conclude that Judge Floro is insane as, in fact, the psychologists and psychiatrists on his case have never said so.

When Justice Ramirez recommended that Judge Floro be dismissed from the service due to insanity, he was apparently using the term in its loose sense. Insanity is a general laymans term, a catchall word referring to various mental disorders. Psychosis is perhaps the appropriate medical term[120] as this is the one used by Drs. Vista and Villegas of the Supreme Court Clinic. It is of note that the 1995, 1998 and 2000 psychological evaluations all reported signs and symptoms of psychosis. Courts exist to promote justice; thus aiding to secure the contentment and happiness of the people.[121] An honorable, competent and independent judiciary exists to administer justice in order to promote the stability of government, and the well-being of the people.[122] Carrying much of the weight in this daunting task of administering justice are our front liners, the judges who preside over courts of law and in whose hands are entrusted the destinies of individuals and institutions. As it has been said, courts will only succeed in their tasks if the judges presiding over them are truly honorable men, competent and independent.[123] There is no indication that Judge Floro is anything but an honorable man. And, in fact, in our disposition of the 13 charges against him, we have not found him guilty of gross misconduct or acts or corruption. However, the findings of psychosis by the mental health professionals assigned to his case indicate gross deficiency in competence and independence. Moreover, Judge Floro himself admitted that he believes in psychic visions, of foreseeing the future because of his power in psychic phenomenon. He believes in duwendes and of a covenant with his dwarf friends Luis, Armand and Angel. He believes that he can write while on trance and that he had been seen by several people to have been in two places at the same time. He has likened himself to the angel of death who can inflict pains on people, especially upon those he perceived as corrupt officials of the RTCs of Malabon. He took to wearing blue robes during court sessions, switching only to black on Fridays. His own witness testified that Judge Floro explained that he wore black from head to foot on Fridays to recharge his psychic powers. Finally, Judge Floro conducted healing sessions in his chambers during his break time. All these things validate the findings of the Supreme Court Clinic about Judge Floros uncommon beliefs and that such beliefs have spilled over to action. Lest we be misconstrued, we do not denigrate such belief system. However, such beliefs, especially since Judge Floro acted on them, are so at odds with the critical and impartial thinking required of a judge under our judicial system. Psychic phenomena, even assuming such exist, have no place in a judiciary duty bound to apply only positive law and, in its absence, equitable rules and principles in resolving controversies. Thus, Judge Floros reference to psychic phenomena in the decision he rendered in the case of People v. Francisco, Jr.[124] sticks out like a sore thumb. In said decision, Judge Floro discredited the testimony of the prosecutions principal witness by

concluding that the testimony was a fairytale or a fantastic story.[125] He then went to state that psychic phenomena was destined to cooperate with the stenographer who transcribed the testimony of the witness. The pertinent portion of Judge Floros decision is quoted hereunder:

goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinate to the primordial necessity of order in the social life.[129]

3. The testimony of the prosecutions PRINCIPAL witness (sole eyewitness of the incident) NORMANDY is INCREDIBLE, is full of inconsistencies (major and not regarding minor points), ergo, the court concludes that due to several indicia of fraud/perjury (flagrant/palpable deception of the Court), his testimony is not worthy of belief, assuming ex-gratia argumenti, that the same may be admissible, and his Court narrative is hereby declared a FAIRY TALE or a FANTASTIC STORY of a crime scene that is acceptable only for SCREEN/cinematic viewing. The following details, are proof of the foregoing conclusion:

Judge Floro does not meet such requirement of objectivity and his competence for judicial tasks leaves much to be desired. As reported by the Supreme Court Clinic:

a.) NORMANDY swore that he, Ponciano Ineria and Raul Ineria were sinalubong by Lando/accused on June 21, 1987 at 2:30 a.m. at alley Wesleyan/Tangos, Navotas, and that he saw the nagpambuno between Raul and Ando, and that HE SAW P. INERIA dead, but HE WAS NO LONGER THERE, but he still saw the nagpambuno; MORE IMPORTANTLY, he SWORE that HE NOTICED the ACCUSED P. Francisco THE FOLLOWING DAY;

Judge Floros belief system, as well as his actuations in the eight months that he served as RTC judge, indubitably shows his inability to function with the cold neutrality of an impartial judge.

b.) The foregoing verily demonstrate his 11th HOUR CONCOCTION (Big Lie, having been asked to submit false testimony); for how could have he witnessed the stabbing by accused when he NOTICED him the following day? (TSN dated May 2, 1995, pp. 1-2); assuming arguendo that the TSN was incorrect due to typographical error, or maybe the Court Stenographer III Eloisa B. Domingo might have been SLEEPING during the testimony, so that the word DAY should have been corrected to another word SUITABLE to Normandys FAIRY TALE, still, the Court had synthesized the entire NARRATIVE of Normandy, but the Court found no reason that the seeming error DAY should be corrected; the Courts sole/remaining conclusion is that EVEN the STENOGRAPHIC NOTES cooperated by PSYCHIC PHENOMENA perhaps of FOR SURE, in having BEEN DESTINED to be FATEFULLY INSCRIBED WITH THE WORDS FOLLOWING DAY (line 3, p. 3 TSN, id.);[126] (Emphasis supplied) In State Prosecutors v. Muro[127] we held that What is required on the part of judges is objectivity. An independent judiciary does not mean that judges can resolve specific disputes entirely as they please. There are both implicit and explicit limits on the way judges perform their role. Implicit limits include accepted legal values and the explicit limits are substantive and procedural rules of law.[128] The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or

Despite his impressive academic background and achievements, he has lapses in judgment and may have problems with decision-making. His character traits such as suspiciousness and seclusiveness and preoccupation with paranormal and psychic phenomena though not detrimental to his role as a lawyer, may cloud his judgment, and hamper his primary role as a judge in dispensing justice. x x x[130]

Verily, Judge Floro holds an exalted position in our system of government. Thus: Long before a man dons the judicial robes, he has accepted and identified himself with large components of the judges role. Especially if he has aspired to a judges status, he is likely to have conducted himself, more or less unconsciously, in the fashion of one who is said to have the judicial temperament. He is likely to have displayed the kinds of behavior that the judges role demands. A large proportion of his experiences on the bench develop and reinforce such conformity, moreover. The ritualistic elements of investiture and of court procedure, the honorific forms of address, and even the imposing appearance of some court buildings serve to emphasize the demands upon his behavior. Even the most unscrupulous former ambulance chaser who owes his position to a thoroughly corrupt political organization must conform at least in part to the behaviors expected of him as a judge.[131] The expectations concerning judicial behavior are more than those expected of other public officials. Judges are seen as guardians of the law and they must thus identify themselves with the law to an even greater degree than legislators or executives.[132] As it has been said, [j]udges administer justice judicially, i.e., not according to some abstract ideas of right and justice, but according to the rules laid down by society in its Code of Laws to which it gives its sanctions. The function of the judge is primarily adjudication. This is not a mechanical craft but the exercise of a creative art, whether we call it legislative or not, which requires great ability and objectivity.[133] We, thus, quote Justice Frankfurter, in speaking of the functions of the Justices of the Supreme Court of the United States:

To practice the requisite detachment and to achieve sufficient objectivity no doubt demands of judges the habit of self-discipline and self-criticism, incertitude that ones own views are incontestable and alert tolerance toward views not shared. But these are precisely the presuppositions of our judicial process. They are precisely the qualities society has a right to expect from those entrusted with judicial power. xxxx The judicial judgment must move within the limits of accepted notions of justice and is not to be based upon the idiosyncrasies of a merely personal judgment.[134] In fine, Judge Floro lacks the judicial temperament and the fundamental requirements of competence and objectivity expected of all judges. He cannot thus be allowed to continue as judge for to do so might result in a serious challenge to the existence of a critical and impartial judiciary. Equitable considerations entitle Judge Floro backwages and other economic benefits for a period of three (3) years. In retrospect, we are forced to say that Judge Floro should not have joined the judiciary as RTC judge. However, we have assiduously reviewed the history of this case and we cannot hold anyone legally responsible for such major and unfortunate faux pas. Judge Floro did not breach any rule of procedure relative to his application for judgeship. He went through the entire gamut of tests and interviews and he was nominated by the JBC on the strength of his scholastic achievements. As to having failed the psychological examinations given by the SC Clinic, it must be pointed out that this was disregarded by the JBC upon Judge Floros submission of psychiatric evaluations conducted by mental health professionals from the private sector and which were favorable to him. Nowhere is it alleged that Judge Floro acted less than honorably in procuring these evaluations. The JBC in 1999 had all the discretion to refer Judge Floro to a private clinic for a second opinion of his mental and psychological fitness. In performing its functions, the JBC had been guided primarily by the Constitution which prescribes that members of the Judiciary must be, in addition to other requirements, persons of proven competence, integrity, probity and independence.[135] It was only on 18 October 2000 when it promulgated JBC009, the Rules of the Judicial and Bar Council, that the JBC put down in writing guidelines or criteria it had previously used in ascertaining if one seeking such office meets the minimum constitutional qualifications and possesses qualities of mind and heart expected of the Judiciary.[136] Rule 6 thereof states:

SECTION 1. Good health. Good physical health and sound mental/psychological and emotional condition of the applicant play a critical role in his capacity and capability to perform the delicate task of administering justice. x x x SEC. 2. Psychological/psychiatric tests. The applicant shall submit to psychological/psychiatric tests to be conducted by the Supreme Court Medical Clinic or by a psychologist and/or psychiatrist duly accredited by the Council. It would seem that as things stood then, the JBC could very well rely on the evaluation of a private psychologist or psychiatrist not accredited by the JBC. Thus, the JBC cannot be faulted for accepting the psychological evaluations of mental health professionals not affiliated with the Supreme Court Clinic. It goes without saying that Judge Floros appointment as RTC judge is fait accompli. What awaits us now is the seemingly overwhelming task of finding the PROPER, JUST AND EQUITABLE solution to Judge Floros almost seven years of suspension in the light of the fact that the penalty imposed herein does not merit a suspension of seven years.

Verily, the Supreme Court is vested with the power to promulgate rules concerning pleading, practice and procedure in all courts.[137] The Constitution limits this power through the admonition that such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights.[138] Rule 140 of the Rules of Court outlines the procedure to be followed in administrative cases against judges. Glaringly, Rule 140 does not detail the steps to be taken in cases when the judge is preventively suspended pending investigation. This is the state of things even after its amendment by A.M. No. 01-8-10-SC which took effect on 1 October 2001. The Supreme Courts power to suspend a judge, however, is inherent in its power of administrative supervision over all courts and the personnel thereof.[139] This power -consistent with the power to promulgate rules concerning pleading, practice and procedure in all courts -- is hemmed in only by the Constitution which prescribes that an adjective law cannot, among other things, diminish, increase or modify substantive rights. The resolution of 20 July 1999 which put Judge Floro under preventive suspension resolved to: (1) DIRECT Judge Florentino V. Floro, Jr. to answer the foregoing charges against him within ten (10) days from notice; (2) REFER this case to Retired Justice Pedro Ramirez, Consultant, Office of the Court Administrator for investigation, report and recommendation, within sixty (60) days from receipt of the records thereof; (3) SUBJECT

Judge Florentino V. Floro, Jr. for appropriate psychological or mental examination to be conducted by the proper office of the Supreme Court or any duly authorized medical and/or mental institution. Moreover, the Court RESOLVED to place Judge Florentino Floro, effective immediately under PREVENTIVE SUSPENSION for the duration of the investigation of the administrative charges against him.[140] As can be gleaned from the above-quoted resolution, Judge Floros suspension, albeit indefinite, was for the duration of the investigation of the 13 charges against him which the Court pegged at 60 days from the time of receipt by the investigator of the records of the case. Rule 140, as amended, now states that (t)he investigating Justice or Judge shall terminate the investigation within ninety (90) days from the date of its commencement or within such extension as the Supreme Court may grant[141] and, (w)ithin thirty (30) days from the termination of the investigation, the investigating Justice or Judge shall submit to the Supreme Court a report containing findings of fact and recommendation.[142] From the foregoing, the rule now is that a Judge can be preventively suspended not only for the entire period of his investigation which would be 90 days (unless extended by the Supreme Court) but also for the 30 days that it would take the investigating judge or justice to come up with his report. Moreover, the Court may preventively suspend a judge until such time that a final decision is reached in the administrative case against him or her.[143] This is because [U]nlike ordinary civil service officials and employees, judges who are charged with a serious offense warranting preventive suspension are not automatically reinstated upon expiration of the ninety (90)-day period, as mandated above. The Court may preventively suspend a judge until a final decision is reached in the administrative case especially where there is a strong likelihood of his guilt or complicity in the offense charged. Indeed, the measure is intended to shield the public from any further damage or wrongdoing that may be caused by the continued assumption of office by the erring judge. It is also intended to protect the courts image as temples of justice where litigants are heard, rights and conflicts settled and justice solemnly dispensed. This is a necessary consequence that a judge must bear for the privilege of occupying an exalted position. Among civil servants, a judge is indeed in a class all its own. After all, in the vast government bureaucracy, judges are beacon lights looked upon as the embodiment of all what is right, just and proper, the ultimate weapons against justice and oppression.[144] In the case of Judge Floro, he is under preventive suspension up to the present because of the serious charge of mental unfitness aggravated by the fact that the actual investigation into his cases dragged on for a much longer period than 90 days. And the reasons for the delay, for the most part, can be directly ascribed to Judge Floro himself. From the records,

it would seem that not only did Judge Floro move for several re-settings of the hearings of his cases; he likewise dragged his feet with respect to the order to submit himself to the appropriate psychological/mental examination. Worse, what started out as single case against him ballooned into 10 cases which were consolidated into one due to common questions of fact and law.[145] All in all, Judge Floro filed seven cases against those he perceived had connived to remove and/or suspend him from office, the last of which he filed on 19 May 2003 against Justice Ramirez.[146] Be that as it may, EQUITY demands that we exercise utmost compassion in this case considering that the rules on preventive suspension of judges, not having been expressly included in the Rules of Court, are amorphous at best. We have ruled similarly in the case of Judge Philbert Iturralde, thus: Be that as it may, we cannot in conscience hold that a judge who was placed under preventive suspension pending investigation is not entitled to the payment of back salaries, allowances and other economic benefits for the entire duration of the preventive suspension. The inequity of the doctrine as applied to judges is clearly apparent, given the peculiar circumstance in which a judge finds himself preventively suspended by the Court until further orders. In this case, Judge Iturralde was preventively suspended for 13 months, during which period he was not paid his salaries, allowances and other benefits. Except for a teaching job that the Court permitted him to undertake pending resolution of the administrative case, Judge Iturralde had no other source of income. He thus incurred several loans to provide for his familys basic needs.

It would thus be unjust to deprive Judge Iturralde of his back salaries, allowances and other economic benefits for the entire period that he was preventively suspended. As we have said in Gloria v. Court of Appeals, preventive suspension pending investigation is not a penalty but only a measure intended to enable the disciplining authority to conduct an unhampered formal investigation. We held that ninety (90) days is ample time to conclude the investigation of an administrative case. Beyond ninety (90) days, the preventive suspension is no longer justified. Hence, for purposes of determining the extent of back salaries, allowances and other benefits that a judge may receive during the period of his preventive suspension, we hold that the ninety-day maximum period set in Gloria v. Court of Appeals, should likewise be applied. Concededly, there may be instances when an investigation would extend beyond ninety (90) days and such may not be entirely unjustified. Nevertheless, we believe that in such a situation, it would be unfair to withhold his salaries and other economic benefits for the entire duration of the preventive suspension, moreso if the delay in the resolution of the case was not due to his fault. Upon being found innocent of the administrative charge, his

preventive suspension exceeding the ninety-day (90) period actually becomes without basis and would indeed be nothing short of punitive. It must be emphasized that his subsequent acquittal completely removed the cause for his preventive suspension in the first place. Necessarily, therefore, we must rectify its effects on just and equitable grounds.[147]

allowances and other economic benefits for a period corresponding to three years. This is because Judge Floros separation from the service is not a penalty as we ordinarily understand the word to mean. It is imposed instead upon Judge Floro out of necessity due to a medically disabling condition of the mind which renders him unfit, at least at present, to continue discharging the functions of his office.

Taking off from the case of Judge Iturralde, we hold that Judge Floro is likewise entitled to the payment of back salaries, allowances and other economic benefits being at the receiving end of a rule peculiar to judges who find themselves preventively suspended by the Court until further orders or, as this case, for the duration of the investigation. Judge Iturraldes suspension of 13 months even pales in comparison to Judge Floros suspension of 81 months, more or less. During this entire excruciating period of waiting, Judge Floro could not practice his profession, thus putting him solely at the mercy of his brothers largesse. And, though he was given donations by those who came to him for healing, obviously, these could not compensate for his loss of income as Judge.

The period of three years seems to us the most equitable under the circumstances. As discussed, if we were to give him more than three years of back salaries, etc., then it would seem that we are rewarding him for his role in delaying the resolution of these cases (as well as the seven cases he filed which were only dismissed on 14 February 2006 at his own bidding). On the other hand, if we were to peg the period at less than three years then the same would only be a pittance compared to the seven years suspension he had to live through with Damocles sword hanging over his head and with his hands bound as he could not practice his profession.

Unlike the case of Judge Iturralde, however, wherein we held that the period of suspension exceeding 90 days should be the basis for the payment of back salaries, we hold that, as a matter of equity, Judge Floro is entitled to back salaries, allowances and other economic benefits for a period corresponding to three of his almost seven years suspension. We cannot apply the ruling in Gloria that any suspension served beyond 90 days must be compensated as we would be, in effect, rewarding Judge Floros propensity to delay the resolution of his case through the indiscriminate filing of administrative cases against those he perceived connived to oust him out of office. In Judge Iturraldes case, the investigation was not delayed through any fault of his. More importantly, Judge Iturralde was ultimately held innocent, thus, using by analogy Gloria v. Court of Appeals, his suspension in excess of 90 days was already in the nature of a penalty which cannot be countenanced precisely because, being innocent, he cannot be penalized. Judge Floro, on the other hand, and as already discussed, contributed to the delay in the investigation of his cases. Moreover, unlike Judge Iturralde, Judge Floro has not been adjudged innocent of all the 13 charges against him.

Judge Floros separation from the service moots the case against him docketed as A.M. No. 99-7-273-RTC (Re: Resolution Dated 11 May 1999 Of Judge Florentino V. Floro, Jr.) A.M. No. RTJ-06-1988 (Luz Arriego v. Judge Florentino V. Floro, Jr.), on the other hand, is dismissed for lack of merit. A.M. No. 99-7-273-RTC It cannot be gainsaid that Judge Floros separation from the service renders moot the complaint in A.M. No. 99-7-273-RTC. As it is, even the most favorable of resolutions in this case will not cause a ripple on the Courts decision to separate Judge Floro from the service. Thus, this charge is dismissed for being moot and academic. A.M. No. RTJ-06-1988 Considering that this case is a replica of charge h in A.M. No. RTJ-99-1460 and considering that charge h is without basis, this particular complaint filed by Luz Arriego must necessarily be dismissed for lack of merit.

These facts, however, as we have already discussed, do not put Judge Floro beyond the reach of equity. To paraphrase Justice Brandeis, equity does not demand that its suitors are free of blame. As we are wont to say:

Judge Floros separation from the service does not carry with it forfeiture of all or part of his accrued benefits nor disqualification from appointment to any other public office including government-owned or controlled corporations.

Equity as the complement of legal jurisdiction seeks to reach and do complete justice where courts of law, through the inflexibility of their rules and want of power to adapt their judgments to the special circumstances of cases, are incompetent so to do. Equity regards the spirit of and not the letter, the intent and not the form, the substance rather than the circumstance, as it is variously expressed by different courts.[148]

As Judge Floros separation from the service cannot be considered a penalty, such separation does not carry with it the forfeiture of all or part of his accrued benefits nor disqualification from appointment to any other public office including government-owned or controlled corporations.

In fine, notwithstanding the fact that Judge Floro is much to blame for the delay in the resolution of his case, equitable considerations constrain us to award him back salaries,

In fact, the psychological and psychiatric reports, considered as the bedrock of the finding of mental impairment against Judge Floro, cannot be used to disqualify him from re-

entering government service for positions that do not require him to dispense justice. The reports contain statements/findings in Judge Floros favor that the Court cannot overlook in all fairness as they deserve equal consideration. They mention Judge Floros assets and strengths and capacity for functionality, with minor modification of work environment. Thus:

3) As a matter of equity, AWARD Judge Florentino V. Floro, Jr. back salaries, allowances and other economic benefits corresponding to three (3) years;

a. High intellectual assets as a result of self-discipline and selforganization.[149]

5) DISMISS the charge in A.M. No. 99-7-273-RTC (Re: Resolution Dated 11 May 1999 Of Judge Florentino V. Floro, Jr.) for MOOTNESS.

4) DISMISS the charge in A.M. No. RTJ-06-1988 (Luz Arriego v. Judge Florentino V. Floro, Jr.) for LACK OF MERIT; and

b. (I)mpressive academic achievements with no drastic change in his personality and level of functioning as a lawyer in private practice.[150] c. (C)haracter traits of suspiciousness, seclusiveness, pre-occupation with paranormal and psychic phenomena not detrimental to his role as a lawyer.[151] d. Everyday situations can be comprehended and dealt with in moderate proficiency . His concern for the details that make up a total field represents his attempts at being systematic and cautious.[152] e. (E)quipped with analytical power.[153] Consequently, while Judge Floro may be dysfunctional as a judge because of the sensitive nature of said position, he may still be successful in other areas of endeavor. Putting all of the above in perspective, it could very well be that Judge Floros current administrative and medical problems are not totally of his making. He was duly appointed to judgeship and his mental problems, for now, appear to render him unfit with the delicate task of dispensing justice not because of any acts of corruption and debasement on his part but clearly due to a medically disabling condition. Finally, if Judge Floros mental impairment is secondary to genetics[154] and/or adverse environmental factors (and, unfortunately, such essential information is not available), we cannot condemn people for their faulty genes and/or adverse environment factors they have no control over. WHEREFORE, premises considered, the Court resolves to: 1) FINE Judge Florentino V. Floro, Jr. in the total amount of FORTY THOUSAND (P40,000.00) PESOS for seven of the 13 charges against him in A.M. No. RTJ-99-1460; 2) RELIEVE Judge Florentino V. Floro, Jr. of his functions as Judge of the Regional Trial Court, Branch 73, Malabon City and consider him SEPARATED from the service due to a medically disabling condition of the mind that renders him unfit to discharge the functions of his office, effective immediately;

SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. L-36800 October 21, 1974 JORGE MONTECILLO and QUIRICO DEL MAR, petitioners, vs. FRANCISCO M. GICA, MAGNO S. GATMAITAN, JOSE N. LEUTERIO, and RAMON G. GAVIOLA, Justices of the Court of Appeals, respondents. In Re Quirico del Mar, For Disciplinary action as member of the Philippine Bar, respondent.

ESGUERRA, J.:p Petitioner Atty. Quirico del Mar of Cebu City in G. R. No. L-36800, and as respondent in contempt proceedings both in the Court of Appeals and in this Court, virtually focused the limelight on himself and relegated to insignificance the limelight on himself and relegated to insignificance the principal issue raised in the petition for certiorari to review the entitled "Francisco M. Gica vs. Hon. Santiago O. Tañada, et al" which was denied due course by this Court's resolution dated May 14, 1973, for lack of merit. Although the petition for certiorari has been denied, it becomes imperatively necessary to elucidate upon the antecedents of this case even if Our only justification in so doing is to seek a reason or motive for the acts of contempt perpetrated by respondent Quirico del Mar that might serve to lighten the enormity of his wrongdoing as a member of the Bar. As a result of an alleged slander committed by Jorge Montecillo on Francisco M. Gica (the former allegedly calling the latter "stupid" or a "fool'), Mr. Gica filed a criminal complaint for oral defamation against Montecillo (Criminal Case No. R-28782 in Branch VII of the Cebu City Court) and a case for damages arising from the same incident (Civil Case No.R13075 in Branch VI of the Cebu City Court). Montecillo was acquitted in Criminal Case No. R-28782, and in Civil Case No. R-13075, the Cebu City Court found that Montecillo did not call Gica "stupid". Finding the counter-claim of Montecillo meritorious, the City Court rendered judgment against Gica for him to pay Montecillo five hundred pesos as moral damages, two hundred pesos as compensatory damages and three hundred pesos as attorney's fees, plus costs. Francisco Gica appealed from the decision of the City Court of Cebu in Civil Case No. R13075 to the Court of First Instance of Cebu presided by Hon. Santiago O. Tañada but the

Court of First Instance upheld the decision of the City Court. The case was then elevated to the Court of Appeals by petition for review by petitioner Francisco M. Gica and it was docketed therein as CA-G.R. No. 46504-R. The Fourth Division of the Court of Appeals in a decision penned by the Hon. Magno S. Gatmaitan and concurred in by Associate Justices Jose N. Leuterio and Ramon G. Gaviola, Jr. (promulgated on Sept. 27, 1972), reversed the decision of the Court of First Instance of Cebu; ruled in favor of petitioner Gica on the ground that the preponderance of evidence favored petitioner Francisco M. Gica on the principle that positive must prevail over the negative evidence, and that "some words must have come from Montecillo's lips that were insulting to Gica". The appellate court concluded that its decision is a vindication of Gica and instead, awarded him five hundred pesos as damages. It is from this point that trouble began for respondent Atty. Quirico del Mar when, as counsel for Montecillo, he moved for a reconsideration of the Appellate Court's decision with a veiled threat by mentioning the provisions of the Revised Penal Code on "Knowingly rendering unjust judgment" and "judgment rendered through negligence", and the innuendo that the Court of Appeals allowed itself to be deceived. When the Appellate Court denied the motion for reconsideration in its Resolution of October 24, 1972, it observed that the terminology of the motion insinuated that the Appellate Court rendered an unjust judgment, that it abetted a falsification and it permitted itself to be deceived. It admonished Atty. del Mar to remember that threats and abusive language cannot compel any court of justice to grant reconsideration. Respondent del Mar persisted and in his second motion for reconsideration, filed without leave of court, made another threat by stating that "with almost all penal violations placed under the jurisdiction of the President of the Philippines, particularly Articles 171, 204 and 205 of the Revised Penal Code, as Commander in Chief of the AFP, by virtue of the proclamation of martial law, the next appeal that will he interposed, will be to His Excellency, the President of the Philippines." The Appellate Court in its resolution of Nov. 27, 1972, noticed that notwithstanding its admonition in its resolution of Oct. 24, 1972, for Atty. del Mar to refrain from abusive language and threats, he reiterated his threats, and that the Appellate Court, impelled to assert its authority, ordered respondent del Mar to explain within 10 days (and to appear on January 10, 1973) why he should not be punished for contempt of court. On December 5, 1972, respondent del Mar made a written explanation wherein he said that the Appellate Court could not be threatened and he was not making any threat but only informing the Appellate Court of the course of action he would follow. On the same date, respondent sent a letter to the Justices of the 4th Division of the Court of Appeals informing them that he sent a letter to the President of the Philippines, furnishing them a copy thereof, and requesting the Justices to take into consideration the contents of said letter during the hearing of the case scheduled for January 10, 1973. Not content with that move, on December 8, 1972, respondent sent another letter to the same Justices of the

Court of Appeals wherein he reminded them of a civil case he instituted against Justices of the Supreme Court for damages in the amount of P200,000 for a decision rendered not in accordance with law and justice, stating that he would not like to do it again but would do so if provoked. We pause here to observe that respondent del Mar seems to be of that frame of mind whereby he considers as in accordance with law and justice whatever he believes to be right in his own opinion and as contrary to law and justice whatever does not accord with his views. In other words, he would like to assume the role of this Court, personally and individually, in the interpretation and construction of the laws, evaluation of evidence and determination of what is in accordance with law and justice. The documented incidents as narrated in the Appellate Court's Resolution of March 5, 1973, cannot more eloquently depict the very manifest and repeated threats of respondent del Mar to bludgeon the Justices of the Fourth Davison into reconsidering its decision which happened to be adverse to respondent's client. Respondent del Mar, instead of presenting lucid and forceful arguments on the merits of his plea for a reconsideration to convince the Justices of the Fourth Division of the alleged error in their decision, resorted to innuendos and veiled threats, even casting downright aspersion on the Justices concerned by insinuating that for their decision they could be criminally and civilly liable for knowingly rendering unjust judgment, or doing it through ignorance. We quote with approval this portion of the Appellate Court's Resolution (March 5, 1973): A just man can never be threatened, p. 145, rollo, is not at all true; any man, just or unjust, can be threatened; if he is unjust, he will succumb, if he is just, he will not, but the offense is committed, whether the threats do or do not succeed. As to his (respondent del Mar's reference to the New Society, p. 150, in his letter to his Excellency, complaining against those justices, let it be said that precisely it was under the Former Society that there had been so much disrespect for the constituted authorities, there was abuse, worse than abuse, there was arrogant abuse, of the so-called civil liberties, against the authorities, including the courts, not excluding even the President; it is this anarchy that is the program to cure in the New. This Resolution of the Appellate Court of March 5, 1973, fittingly concluded that "counsel del Mar is found guilty of contempt and condemned to pay a fine of P200.00 and ordered suspended from the practice of law and pursuant to Sec. 9 of Rule 139, let certified copies of these papers be elevated to the Honorable Supreme Court". We upheld the Court of Appeals and gave full force and effect to this order of suspension from the practice of law when in Our resolution dated Nov. 19, 1973, the Judicial Consultant of this Court was directed to circularize all courts about the order of the Court of Appeals suspending Atty. Quirico del Mar from the practice of law. Not satisfied with the wrong that he had already done against Associate Justices Magno S. Gatmaitan, Jose N. Leuterio and Ramon Gaviola, Jr., respondent del Mar sued the three Justices for damages in Civil Case No. R-13277 of the Court of First Instance of Cebu,

trying to hold them liable for their decision in CA-G.R. No. 46504-R; that the case for damages (R-13277)was terminated by compromise agreement after Mr. del Mar himself moved for the dismissal of his complaint apologized to the Court of Appeals and the Justices concerned, and agreed to pay nominal moral damages in favor of the defendantsjustices. This is the undeniable indication that respondent del Mar did not only threaten the three Justices of the Appellate Court but he actually carried out his threat, although he did not succeed in making them change their minds in the case they decided in accordance with the exercise of their judicial discretion emanating from pure conviction. To add insult to injury, respondent del Mar had the temerity to file his motion on October 10, 1973, before Us, asking that his suspension from the practice of law imposed by the Court of Appeals be ignored because of the amicable settlement reached in Civil Case No. R-13277 of the Court of First Instance of Cebu which was the action for damages filed against the three Justices of the Appellate Court. Respondent del Mar's ire at the Appellate Court, fanned by the wind of frustration, turned against Us when We denied on May 14, 1973, his petition for review on certiorari of the decision of the Appellate Court, G. R. No. L-36800, for on May 25, 1973, he filed his motion for reconsideration and wrote a letter addressed to the Clerk of this Court requesting the names of the Justices of this Court who supported the resolution denying his petition, together with the names of the Justices favoring his motion for reconsideration. This motion for reconsideration We denied for lack of merit in Our resolution dated June 15, 1973. He, then, filed a manifestation dated July 1, 1973, before Us, stating brazenly, among other things, "I can at this time reveal to you that, had your Clerk of Court furnished me with certified true copies of the last two Resolutions of the Supreme Court confirming the decision of the Court of Appeals in the case entitled Francisco M. Gica vs. Jorge Montecillo, I would have filed against the Justices supporting the same, civil and criminal suit as I did to the Justices of the Court of Appeals who, rewarding the abhorent falsification committed by Mr. Gica, reversed for him the decisions of the City Court and the Court of First Instance of Cebu, not with a view to obtaining a favorable judgment therein but for the purpose of exposing to the people the corroding evils extant in our Government, so that they may well know them and work for their extermination" (Emphasis supplied. In one breath and in a language certainly not complimentary to the Appellate Court and to Us, respondent del Mar again made his veiled threat of retribution aimed at the Appellate Court and at Us for Our judicial acts in CA-G. R. No. 46504-R and G. R. No.L-36800. Our immediate reaction to this manifestation, dictated by the impulse of placing on a pedestal beyond suspicion the integrity and honor of this Court and that of any of our other courts of justice, was to require by Resolution of July 16, 1973, respondent del Mar to show cause why disciplinary action should not be taken against him for the contemptuous statements contained in his manifestation.

At this juncture, We pause to reexamine the act of the Appellate Court in CA-G. R. No. 46504-R and our own in G. R. No. L-36800 to determine what error we might have committed to generate such a vengeful wrath of respondent del Mar which drove him to make his contemptuous statements. The crucial issue in the case of oral defamation filed by Francisco M. Gica against Jorge Montecillo is as to what was the statement really uttered by Montecillo on the occasion in question — "binuang man gud na" (That act is senseless or done without thinking) or "buang man gud na siya" (He is foolish or stupid). If the statement uttered was the former, Montecillo should be exonerated; if the latter, he would be liable. The Appellate Court on evaluating the evidence ruled that the preponderance thereof favored Gica "on the principle that the positive evidence must prevail over the negative" and, therefore, what was really uttered by Montecillo on that occasion was "buang man gud na siya" (He is foolish or stupid), thus making him liable for oral defamation. When We denied in G. R. No. L-36800 the petition for review on certiorari of the Appellate Court's decision in CA-G. R. No. 46504-R, We did so because We could find no reason for disturbing the Appellate Court's finding and conclusion on the aforementioned lone question of fact which would warrant overturning its decision. On July 13, 1973, Our resolution of May 14, 1973, denying the petition for review on certiorari of the decision of the Appellate Court in CA-G. R. No. 46504-R, became final and executory and the Court of Appeals was so informed. To Our resolution of July 16, 1973, requiring respondent del Mar to show cause why he should not be disciplined for his statements contained in his manifestation of July 1, 1973, he submitted an explanation dated August 1, 1973, wherein he stated that "..., he is attaching hereto the criminal case he filed with the President of the Philippines (copy marked as Annex "A") and the civil case he instituted in the Court of First Instance of Cebu (copy marked as Annex "B") against Justices Magno S. Gatmaitan, Jose N. Leuterio and Ramon G. Gaviola, Jr., which embody the corroding evils he complained of as extant in the Government needing correction. He would have followed suit were it not for the fact that he is firmly convinced that human efforts in this direction will be fruitless. As manifested, he, therefore, decided to retire from a life of militancy to a life of seclusion leaving to God the filling-up of human deficiencies" (Emphasis supplied). This so-called explanation is more, in its tenor, of a defiant justification of his contemptuous statements contained in the manifestation of July 1, 1973. Its contents reveal a continued veiled threat against the Justices of this Court who voted to deny del Mar's petition for review on certiorari of the decision of the Court of Court Appeals in CA-G R. No. 46504-R. Our resolution of September 4, 1973, required respondent Atty. Quirico del Mar to appear personally at the hearing of his explanation on November 5, 1973. On September 26, 1973, respondent filed an additional explanation with this Court, wherein he stated,

among other things: "Graft, corruption and injustice are rampant in and outside of the Government. It is this state of things that convinced me that all human efforts to correct and/or reform the said evils will be fruitless and, as stated in my manifestation to you, I have already decided to retire from a life of militancy to a life of seclusion, leaving to God the filling-up of human deficiencies." Again We noticed that the tenor of this additional explanation is a toned-down justification(as compared to his explanation of August 1, 1973) of his previous contemptuous statements without even a hint of apology or regret. Respondent is utilizing what exists in his mind as state of graft, corruption and injustice allegedly rampant in and outside of the government as justification for his contemptuous statements. In other words, he already assumed by his own contemptuous utterances that because there is an alleged existence of rampant corruption, graft, and injustice in and out of the government, We, by Our act in G. R. No. L-36800, are among the corrupt, the grafters and those allegedly committing injustice. We are at a complete loss to follow respondent del Mar's logic and We certainly should, with understanding condescension, commiserate in the pitiable state of mind of a brother in the legal profession who seems to have his reasoning and sense of proportion blurred or warped by an all-consuming obsession emanating from a one-track mind that only his views are absolutely correct and those of others are all wrong. When this Court in the resolution dated November 19, 1973, directed the Judicial Consultant to circularize to all courts concerning the order of the Court of Appeals suspending Atty. Quirico del Mar from the practice of law, respondent del Mar filed a motion for reconsideration on December 12, 1973, requesting Us to reconsider said directive. In Our resolution dated December 17, 1973, respondent del Mar, after he had been interpellated by the Court, was given a period of five days to submit a memorandum in support of his explanation. In view of respondent's manifestation that there was no need for further investigation of the facts involved, in accordance with Section 29 of Rule 138, We resolved that the matter be deemed submitted for decision. In the memorandum entitled "Explanation" dated December 20, 1973, respondent del Mar stated that he suffered repeated strokes of high blood pressure which rendered him dizzy and unstable mentally and physically; that his sight is blurred and his reasoning is faulty; he easily forgets things and cannot readily correlate them; that for any and all mistakes he might have committed he asked for forgiveness; he reiterated that "blunders" were committed by the Court of Appeals in its decision and that the Justices thereof knowingly rendered the same in violation of Article 204 of the Penal Code; he persisted in his view that the Court of Appeals committed an error in its decision; justified his act of invoking Article 204 of the Penal Code in trying to make the Appellate Justices liable; that he was high in his academic and scholastic standing during his school days; that "with all the confusion prevailing nowadays, the undersigned has decided for reasons of sickness and old age to retire from the practice of law. He hopes and expects that, with the approval

thereof by the Supreme Court, he could have himself released from the obligation he has contracted with his clients as regards all his pending cases." It is Our observation that the tenor of this explanation although pleading mental and physical ailment as a mitigation of the contemptuous acts, is still that of arrogant justification for respondent's previous statements. We quote: The undersigned was asked if he had not filed against the Justices of the Supreme Court a case for damages against them. He answered in the affirmative, but the case was dismissed by Judge Villasor, of the Court of First Instance of Cebu, because of an American ruling that a justice of the Supreme Court of the Philippines cannot be civilly held liable. The ruling cited was rendered during the American regime in the Philippines which was still subject to the jurisdiction of the American laws. But the Philippines is now independent and Article 204 of the Penal Code still remains incorporated therein for observance and fulfillment. Up to now, there is not yet any definite ruling of the Supreme Court thereon While still persistently justifying his contemptuous statements and at the same time pleading that his physical and mental ailment be considered so that We may forgive respondent del Mar he shrewdly stated at the end of his explanation that he has decided for reasons of sickness and old age to retire from the practice of law, in practical anticipation of whatever penalty We may decide to impose on him and thus making it appear that he has voluntarily done so with honor and in complete evasion of whatever this Court may decide to do in this case. With full realization that a practicing lawyer and officer of the court facing contempt proceedings cannot just be allowed to voluntarily retire from the practice of law, an act which would negate the inherent power of the court to punish him for contempt in defense of its integrity and honor, We resolve, by resolution of January 10, 1974, to deny said prayer of Atty. del Mar without prejudice to his making arrangement directly with his clients. To aged brethren of the bar it may appear belated to remind them that second only to the duty of maintaining allegiance to the Republic of the Philippines and to support the Constitution and obey the laws of the Philippines, is the duty of all attorneys to observe and maintain the respect due to the courts of justice and judicial officers (Sec. 20 (b) Rule 138, Rules of Court). But We do remind them of said duty to emphasize to their younger brethren its paramount importance. A lawyer must always remember that he is an officer of the court exercising a high privilege and serving in the noble mission of administering justice. It is the duty of the lawyer to maintain towards the courts a respectful attitude (People vs. Carillo, 77 Phil. 572). As an officer of the court, it is his duty to uphold the dignity and authority of the court to which he owes fidelity, according to the oath he has taken.

Respect for the courts guarantees the stability of our democratic institutions which, without such respect, would be resting on a very shaky foundation. (In re Sotto 82 Phil. 595). As We stated before: We concede that a lawyer may think highly of his intellectual endowment. That is his privilege. And, he may suffer frustration at what he feels is others' lack of it. This is his misfortune. Some such frame of mind, however, should not be allowed to harden into a belief that he may attack a court's decision in words calculated to jettison the timehonored aphorism that courts are the temples of right. He should give due allowance to the fact that judges are but men; and men are encompassed by error, fettered by fallibility. ... To be sure, lawyers may come up with various methods, perhaps much more effective, in calling the Court's attention to the issues involved. The language vehicle does not run short of expressions, emphatic but respectful, convincing but not derogatory, illuminating but not offensive (Rheem of the Philippines vs. Ferrer G. R. No. L-22979, June 26, 1967; 20 SCRA 441, 444-445) Criminal contempt has been defined as a conduct that is directed against the dignity and authority of the court or a judge acting judicially. It is an act obstructing the administration of justice which tends to bring the court into disrepute or disrespect (17 C. J. S. 7). We have held that statements contained in a motion to disqualify a judge, imputing to the latter conspiracy or connivance with the prosecutors or concocting a plan with a view to securing the conviction of the accused, and implicating said judge in a supposed attempt to extort money from the accused on a promise or assurance of the latter's acquittal, all without basis, were highly derogatory and serve nothing but to discredit the judge presiding the court in an attempt to secure his disqualification. Statements of that nature have no place in a court pleading and if uttered by a member of the bar, constitute a serious disrespect. We said: As an officer of the court, it is his sworn and moral duty to help build and not destroy unnecessarily the high esteem and regard towards the court so essential to the proper administration of justice(Emphasis supplied). (People vs. Carillo, 43 O.G. No. 12, p. 5021; De Joya et al vs. C. F. I. of Rizal and Rilloraza 52 0. G. 6150). As already stated, the decision of the Court of Appeals in CA-G. R. No. 46504-R was based on its evaluation of the evidence on only one specific issue. We in turn denied in G. R. No. L-36800 the petition for review on certiorari of the decision because We found no reason for disturbing the appellate court's finding and conclusion. In both instances, both the Court of Appeals and this Court exercised judicial discretion in a case under their

respective jurisdiction. The intemperate and imprudent act of respondent del Mar in resorting to veiled threats to make both Courts reconsider their respective stand in the decision and the resolution that spelled disaster for his client cannot be anything but pure contumely for said tribunals. It is manifest that respondent del Mar has scant respect for the two highest Courts of the land when on the flimsy ground of alleged error in deciding a case, he proceeded to challenge the integrity of both Courts by claiming that they knowingly rendered unjust judgment. In short, his allegation is that they acted with intent and malice, if not with gross ignorance of the law, in disposing of the case of his client. We note with wonder and amazement the brazen effrontery of respondent in assuming that his personal knowledge of the law and his concept of justice are superior to that of both the Supreme Court and the Court of Appeals. His pretense cannot but tend to erode the people's faith in the integrity of the courts of justice and in the administration of justice. He repeatedly invoked his supposed quest for law and justice as justification for his contemptuous statements without realizing that, in seeking both abstract elusive terms, he is merely pursuing his own personal concept of law and justice. He seems not to comprehend that what to him may be lawful or just may not be so in the minds of others. He could not accept that what to him may appear to be right or correct may be wrong or erroneous from the viewpoint of another. We understand that respondent's mind delves into the absolute without considering the universal law of change. It is with deep concern that We view such a state of mind of a practicing lawyer since what We expect as a paramount qualification for those in the practice of law is broadmindedness and tolerance, coupled with keen perception and a sound sense of proportion in evaluating events and circumstances. For a lawyer in the twilight of his life, with supposed physical and mental ailments at that, who dares to challenge the integrity and honor of both the Supreme Court and Court of Appeals, We have nothing but commiseration and sympathy for his choosing to close the book of his long years of law practice not by voluntary retirement with honor but in disciplinary action with ignominy and dishonor. To those who are in the practice of law and those who in the future will choose to enter this profession, We wish to point to this case as a reminder for them to imprint in their hearts and minds that an attorney owes it to himself to respect the courts of justice and its officers as a fealty for the stability of our democratic institutions. WHEREFORE, the resolution of the Court of Appeals in CA-G.R. No. 46504-R, dated March 5, 1973, suspending Atty. Quirico del Mar from the practice of law, as implemented by Our resolution of November 19, 1973, is hereby affirmed. Respondent Atty. Quirico del Mar for his misconduct towards the Supreme Court, shall be, as he is hereby, suspended from the practice of law until further orders of this Court, such

suspension to take effect immediately. (In re Almacen, No. L-27654, Feb. 18, 1970, 31 SCRA, p. 562.) The Judicial Consultant of this Court is directed to circularize all courts and the Integrated Bar of the Philippines regarding the indefinite suspension of Atty. Quirico del Mar from the practice of law. SO ORDERED. Makalintal, C.J., Castro, Teehankee, Barredo, Makasiar, Antonio, Fernandez, Muñoz Palma and Aquino, JJ., concur. Fernando, J., took no part.

Republic of the Philippines SUPREME COURT Manila EN BANC A.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 insolving 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 viction, 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.

THIRD DIVISION [G.R. No. 125766. October 19, 1998] FELICIDAD L. ORONCE and ROSITA L. FLAMINIANO, petitioners, vs. HON. COURT OF APPEALS and PRICILIANO B. GONZALES DEVELOPMENT CORPORATION, respondents. DECISION ROMERO, J.: The issue of whether or not a Metropolitan or Municipal Trial Court may resolve the issue of ownership of the property involved in an unlawful detainer case has been discussed by this Court in a number of cases, the more recent of which is that of Hilario v. Court of Appeals.[1] Jurisprudence on the matter has in fact been reflected in the 1997 Rules of Civil Procedure under Rule 70, to wit: SEC. 16. Resolving defense of ownership. When the defendant raises the defense of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession. (4a) These developments in the law notwithstanding, there remains some misconceptions on the issue of jurisdiction of inferior courts in ejectment cases where ownership is raised as a defense that the Court deems proper to clarify in this petition. Private respondent Priciliano B. Gonzales Development Corporation was the registered owner of a parcel of land with an area of 2,000 square meters. The land with improvements, covered by Transfer Certificate of Title No. RT-54556 (383917), is situated at No. 52 Gilmore Street, New Manila, Quezon City. In June 1988, private respondent obtained a four million peso - (P4,000,000.00) loan from the China Banking Corporation. To guarantee payment of the loan, private respondent mortgaged the Gilmore property and all its improvements to said bank. Due to irregular payment of amortization, interests and penalties on the loan accumulated through the years. On April 13, 1992, private respondent, through its president, Antonio B. Gonzales, signed and executed a Deed of Sale with Assumption of Mortgage covering the Gilmore property and its improvements, in favor of petitioners Rosita Flaminiano and Felicidad L. Oronce.[2] The deed, which states that the sale was in consideration of the sum of P5,400,000.00,[3] provided inter alia that

x x x the VENDOR (PBGDC) also guarantees the right of the VENDEES (petitioners) to the possession of the property subject of this contract without the need of judicial action; and possession of said premises shall be delivered to the VENDEES by the VENDOR at the expiration of one (1) year from the date of the signing and execution of this Deed of Sale with Assumption of Mortgage. On the other hand, petitioners bound themselves to pay private respondents indebtedness with China Banking Corporation. In fulfillment of the terms and conditions embodied in the Deed of Sale with Assumption of Mortgage, petitioners paid private respondents indebtedness with the bank. However, private respondent reneged on its obligation to deliver possession of the premises to petitioners upon the expiration of the one-year period from April 13, 1992. Almost six months later since the execution of the instrument or on October 2, 1992, petitioners caused the registration of the Deed of Sale with Assumption of Mortgage with the Register of Deeds. Simultaneously, they obtained a new title, TCT No. 67990, consistent with the fact that they are the new owners of the property.[4] Sometime in July 1993, they paid the real estate taxes on the property for which they were issued Tax Declarations Nos. C-06102815 and C-061-02816.[5] On November 12, 1993, petitioners sent private respondent a demand letter asking it to vacate the premises. Said letter, just like three other consecutive notices sent through the Quezon City post office, was unclaimed. Hence, on April 11, 1994, petitioners filed before the Metropolitan Trial Court of Quezon City, a complaint for unlawful detainer against private respondent. The complaint, docketed as Civil Case No. 8638 was raffled to Branch 41. Petitioners alleged that by virtue of the Deed of Sale with Assumption of Mortgage, they acquired from private respondent the Gilmore property and its improvements, for which reason they were issued TCT No. 67990. However, they added, in violation of the terms of that document, specifically Sec. 3 (c) thereof, private respondent refused to surrender possession of the premises. Consequently, they demanded that private respondent vacate the premises through notices sent by registered mail that were, however, returned to them unclaimed. In its answer to the complaint, private respondent raised the issue of ownership over the property. It impugned petitioners right to eject, alleging that petitioners had no cause of action against it because it was merely a mortgagee of the property. It argued that when the parties executed the Deed of Sale with Assumption of Mortgage, its real intention was to forge an equitable mortgage and not a sale. It pointed out three circumstances indicative of an equitable mortgage, namely: inadequacy of the purchase price, continued possession by private respondent of the premises, and petitioners retention of a portion of the purchase price. During the preliminary conference on the case, the parties agreed to stipulate on the following: (a) the existence and due execution of the Deed of Sale with Assumption of

Mortgage, and (b) the issue of whether or not the premises in litis are being unlawfully detained by private respondent.[6] On March 24, 1995, the MTC[7] decided the case in favor of petitioners. It ruled that petitioners are the owners of the Gilmore property on account of the following pieces of evidence: (a) TCT No. 67990; (b) petitioners payment to the China Banking Corporation of P8,500,000.00, the amount of the mortgage entered into between private respondent and said bank; (c) payment of real estate taxes for 1993, and (d) Tax Declaration No. 02816 in petitioners names. The MTC further held that private respondents possession of the premises was merely tolerated by petitioners and because it refused to vacate the premises despite demand to do so, then its possession of the same premises had become illegal. Thus, the MTC decreed as follows: WHEREFORE, premises considered, judgment is hereby rendered ordering defendant and all persons claiming rights under it to vacate the premises-in-litis located at No. 52 Gilmore St., New Manila, Quezon City, and to peacefully surrender possession thereof to the plaintiffs; to pay plaintiffs the sum of P20,000.00 a month as compensation for the unjust occupation of the same from April 11, 1994 (the date of filing of this case) until defendant fully vacates the said premises; to pay plaintiffs the amount of P20,000.00 as and for attorneys fees plus costs of suit. Counterclaim is dismissed for lack of merit. SO ORDERED.[8] On April 25, 1995, private respondent interposed an appeal to the Regional Trial Court, Branch 219, of Quezon City that docketed it as Civil Case No. Q-95-23697. Private respondent stressed in its appeal that it was not unlawfully withholding possession of the premises from petitioners because the latters basis for evicting it was the Deed of Sale with Assumption of Mortgage that did not reflect the true intention of the parties to enter into an equitable mortgage. Clearly in pursuance of that allegation, private respondent filed a motion questioning the jurisdiction of the RTC to entertain its appeal. On the other hand, petitioners filed a motion for the immediate execution of the appealed decision. The RTC granted the motion on September 21, 1995 and the corresponding writ of execution was issued on September 25, 1995. The following day, the sheriff served upon private respondent the writ of execution and a notice to vacate the premises within five (5) days from receipt thereof. Meanwhile, during the pendency of its appeal, private respondent filed an action for reformation of instrument with the RTC. It was docketed as Civil Case No. Q-95-24927 and assigned to Branch 227. In a resolution dated December 7, 1995, RTC Branch 219 asserted jurisdiction over the appeal. It ruled that the issue of whether or not an action for reformation of a deed of sale

and an unlawful detainer case can proceed independently of each other has been resolved by this Court in Judith v. Abragan.[9] In said case, this Court held that the fact that defendants had previously filed a separate action for the reformation of a deed of absolute sale into one of pacto de retro sale or equitable mortgage in the same Court of First Instance is not a valid reason to frustrate the summary remedy of ejectment afforded by law to the plaintiff. On December 12, 1995, private respondent filed in the Court of Appeals a petition for certiorari with prayer for a temporary restraining order and writ of preliminary injunction against petitioners and RTC Branch 219. It assailed the September 21, 1995 order granting the issuance of a writ of execution pending appeal, the writ of execution and the notice to vacate served upon private respondent (CA-G.R. SP-39227). On December 13, 1995, RTC Branch 219[10] rendered the decision affirming in toto that of the Metropolitan Trial Court. Stating that in ejectment proceedings, the only issue for resolution is who is entitled to physical or material possession of the premises involved, RTC Branch 219 held that: x x x the plaintiffs (petitioners herein) are vendees of the defendant (PBGDC) by virtue of a deed of sale where the extent of its right to continue holding possession was stipulated. In the agreement, the existence and due execution of which the defendant had admitted (Order, December 16, 1994, Rollo, p. 111), it was clearly stated that the defendant shall deliver the possession of the subject premises to the plaintiffs at the expiration of one (1) year from the execution thereof, April 12, 1992. The defendant failed to do so. From then on, it could be said that the defendant has been unlawfully withholding possession of the premises from the plaintiffs. In any case, this ruling on the matter of possession de facto is without prejudice to the action for reformation. This is because `the judgment rendered in an action for forcible entry or detainer shall be effective with respect to the possession only and in no wise bind the title or effect the ownership of the land or building nor shall it be held conclusive of the facts therein found in a case between the same parties upon a different cause of action not involving possession (Ang Ping v. Regional Trial Court, 154 SCRA 153; Section 7, Rule 70, Rules of Court).[11] On that same date, December 13, 1995, the Court of Appeals issued a temporary restraining order enjoining RTC Branch 219 from enforcing the writ of execution and the notice to vacate the premises and on January 15, 1996, the same court granted private respondents application for a writ of preliminary injunction enjoining the implementation of both the writ of execution pending appeal and the decision of RTC Branch 219. Around six months later or on July 2, 1996, RTC Branch 227[12] issued an order declaring private respondent non-suited for failure to appear at the pre-trial and, therefore, dismissing the action for reformation of instrument in Civil Case No. Q-95-24927. Private

respondent, not having sought reconsideration of said order, the same court issued a resolution on August 15, 1996 directing the entry of judgment in the case.[13] The Clerk of Court accordingly issued the final entry of judgment thereon.[14] In the meantime, on July 24, 1996, the Court of Appeals rendered the herein questioned Decision.[15] It set aside the December 13, 1995 decision of RTC Branch 219 and declared as null and void for want of jurisdiction, the March 24, 1995 decision of the Metropolitan Trial Court of Quezon City, Branch 41. It made permanent the writ of preliminary injunction enjoining petitioners from implementing the decision of RTC Branch 219, the writ of execution and the notice to vacate. In so holding, the Court of Appeals said: It is quite evident that, upon the pleadings, the dispute between the parties extended beyond the ordinary issues in ejectment cases. The resolution of the dispute hinged on the question of ownership and for that reason was not cognizable by the MTC. (See: General Insurance and Surety Corporation v. Castelo, 13 SCRA 652 [1965]). Respondent judge was not unaware of the pendency of the action for reformation. However, despite such knowledge, he proceeded to discuss the merits of the appeal and rendered judgment in favor of respondents on the basis of the deed of sale with assumption of mortgage which was precisely the subject of the action for reformation pending before another branch of the court. Prudence dictated that respondent judge should have refused to be drawn into a discussion as to the merits of the respective contentions of the parties and deferred to the action of the court before whom the issue was directly raised for resolution. On whether or not private respondent was in estoppel from questioning the jurisdiction of the MTC since it voluntarily submitted thereto the question of the validity of its title to the property, the Court of Appeals said: This is not so. As earlier pointed out, petitioner (private respondent here) had, in its answer to the complaint for unlawful detainer, promptly raised the issue of jurisdiction by alleging that what was entered into by the parties was just an equitable mortgage and not a sale. Assuming the truth of this allegation, it is fairly evident that respondents would not have had a cause of action for ejectment. In other words, petitioner, since the start of the case, presented a serious challenge to the MTCs jurisdiction but, unfortunately, the court ignored such challenge and proceeded to decide the case simply on the basis of possession. `The operation of the principle of estoppel on the question of jurisdiction seemingly depends upon whether the lower court actually had jurisdiction or not, if it had no jurisdiction, but the case was tried and decided upon the theory that it had jurisdiction, the parties are not barred, on appeal, from assailing such jurisdiction, for the same must exist as a matter of law, and may not be conferred by consent of the parties or by

estoppel (5 C.J.S., 861-863). (La Naval Drug Corporation v. Court of Appeals, 236 SCRA 78 [1994]). Contrary to respondents pretense, the filing by petitioner of an action for the reformation of contract may not really be an afterthought. As we understand it, petitioner, to support its allegation that the contract was a mere equitable mortgage, cites the fact that the price was inadequate; it remained in possession of the premises; it has retained a part of the purchase price; and, in any case, the real intention of the parties was that the transaction shall secure the payment by petitioner of its loan, adverting to Article 1602 of the Civil Code. Under Article 1604 of the same code, it is provided that the presence of only one circumstance defined in Article 1602, such as those cited above, is sufficient for a contract of sale with right to repurchase to be presumed an equitable mortgage. Without in any way preempting the decision of the court in the action for reformation, it is our considered view that, under the factual milieu, the action was initiated for the proper determination of the rights of the parties under the contract, and not just an afterthought. No derogatory inference can arise from petitioners admission of the existence of the deed of sale with assumption of mortgage. The admission does not necessarily dilute its claim that the same does not express the true intent of the parties. Verily, since the case at bench involves a controverted right, the parties are required to preserve the status quo and await the decision of the proper court on the true nature of the contract. It is but just that the person who has first acquired possession should remain in possession pending decision on said case, and the parties cannot be permitted meanwhile to engage in petty warfare over possession of property which is the subject of dispute. To permit this will be highly dangerous to individual security and disturbing to the social order. (Manlapaz v. Court of Appeals, 191 SCRA 795 [1990]).[16] Hence, the present petition for review on certiorari where petitioners raise the following assigned errors allegedly committed by respondent Court of Appeals: I. THE DECISION OF THE RESPONDENT COURT OF APPEALS IS CONTRARY TO THE PROVISIONS OF SEC. 33 (2) OF THE JUDICIARY REORGANIZATION ACT OF 1980 CONFERRING EXCLUSIVE ORIGINAL JURISDICTION ON THE METROPOLITAN TRIAL COURT IN EJECTMENT CASES AND VESTING IT WITH AUTHORITY, INDEED MANDATORILY, TO RESOLVE ISSUES OF OWNERSHIP TO DETERMINE ISSUES OF POSSESSION. II. THE DECISION OF THE RESPONDENT COURT IS CONTRARY TO CURRENT AND PREVAILING DOCTRINE AS ENUNCIATED IN WILMON AUTO SUPPLY CORP. VS. COURT OF

APPEALS, 208 SCRA 108; SY VS.COURT OF APPEALS, 200 SCRA 117; AND ASSET PRIVATIZATION TRUST VS. COURT OF APPEALS, 229 SCRA 627. III. THE FILING OF THE REFORMATION CASE CONFIRMS THE JURISDICTION OF THE METROPOLITAN TRIAL COURT OVER THE EJECTMENT CASE; THE DISMISSAL OF THE REFORMATION CASE CONFIRMS THE FACT THAT IT WAS FILED MERELY AS A PLOY TO DELAY DISPOSITION OF EJECTMENT PROCEEDINGS, AND BARES NOT JUST THE ERROR BUT THE UTTER INEQUITY OF THE RESPONDENT COURTS DECISION ANNULLING THE EJECTMENT DECREE AND SETTING ASIDE THE REGIONAL TRIAL COURT DECISION OF AFFIRMANCE. Petitioners argue that the precedent laid down in Ching v. Malaya[17] relied upon by the Court of Appeals, was based on the old law, Republic Act No. 296 (Judiciary Act of 1948), as amended, which vested in the city courts original jurisdiction over forcible entry and unlawful detainer proceedings and the corresponding power to receive evidence upon the question of ownership for the only purpose of determining the character and extent of possession.[18] They claim that since the original complaint for unlawful detainer was filed on April 13, 1992, then the applicable law should have been Section 33 (2) of the Judiciary Reorganization Act of 1980 (Batas Pambansa Blg. 129). That law vests in the city courts exclusive original jurisdiction over forcible entry and unlawful detainer cases and the corresponding power to receive evidence upon questions of ownership and to resolve the issue of ownership to determine the issue of possession.[19] The history of the law vesting Municipal and Metropolitan Trial Courts with jurisdiction over ejectment cases has invariably revolved upon the assumption that the question of ownership may be considered only if necessary for the determination of the issue as to who of the parties shall have the right to possess the property in litigation.[20] Thus, under the Judiciary Act of 1948, as amended, Section 88 vested municipal and city courts with authority to receive evidence upon the question of title therein, whatever may be the value of the property, solely for the purpose of determining the character and extent of possession and damages for detention. Section 3 of Republic Act No. 5967 that was enacted on June 21, 1969, provided that city courts shall have concurrent jurisdiction with Courts of First Instance over ejection cases where the question of ownership is brought in issue in the pleadings and that the issue of ownership shall be resolved in conjunction with the issue of possession. Expounding on that provision of law, in Pelaez v. Reyes,[21] this Court said: x x x We are of the considered opinion that the evident import of Section 3 above is to precisely grant to the city courts concurrent original jurisdiction with the courts of first instance over the cases enumerated therein, which include `ejection cases where the question of ownership is brought in issue in the pleadings. To sustain petitioners contention about the meaning of the last phrase of paragraph (c) of said section regarding

the resolution of the issue of ownership `in conjunction with the issue of possession is to disregard the very language of the main part of the section which denotes unmistakably a conferment upon the city courts of concurrent jurisdiction with the courts of first instance over ejection cases in which ownership is brought in issue in the pleadings. It is to Us quite clear that the fact that the issue of ownership is to be resolved `in conjunction with the issue of possession simply means that both the issues of possession and ownership are to be resolved by the city courts. And the jurisdiction is concurrent with the Courts of First Instance precisely because usually questions of title are supposed to be resolved by superior courts. In other words, this grant of special jurisdiction to city courts is to be distinguished from the power ordinarily accorded to municipal courts to receive evidence of title only for the purpose of determining the extent of the possession in dispute. Upon the approval on August 14, 1981 of Batas Pambansa Blg. 129 or the Judiciary Reorganization Act of 1980, however, the power of inferior courts, including city courts, to resolve the issue of ownership in forcible entry and unlawful detainer cases was modified. Resolution of the issue of ownership became subject to the qualification that it shall be only for the purpose of determining the issue of possession. In effect, therefore, the city courts lost the jurisdiction to determine the issue of ownership per se that was theretofore concurrent with the then Courts of First Instance. Thus, Section 33 of B.P. Blg. 129 provides that Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts shall exercise: Exclusive original jurisdiction over cases of forcible entry and unlawful detainer: Provided, That when in such cases, the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession. Accordingly, the Interim Rules and Guidelines in the implementation of Batas Pambansa Blg. 129 provides as follows: 10. Jurisdiction in ejectment cases. Metropolitan trial courts, municipal trial courts, and municipal circuit trial courts, without distinction, may try cases of forcible entry and detainer even if the question of ownership is raised in the pleadings and the question of possession could not be resolved without deciding the issue of ownership, but the question of ownership shall be resolved only to determine the issue of possession. Explaining these provisions of law, in Sps. Refugia v. Court of Appeals,[22] the Court said: These issuances changed the former rule under Republic Act No. 296 which merely allowed inferior courts to receive evidence upon the question of title solely for the purpose of determining the extent and character of possession and damages for detention, which thereby resulted in previous rulings of this Court to the effect that if it appears during the trial that the principal issue relates to the ownership of the property in dispute and any

question of possession which may be involved necessarily depends upon the result of the inquiry into the title, then the jurisdiction of the municipal or city courts is lost and the action should be dismissed. With the enactment of Batas Pambansa Blg. 129, the inferior courts now retain jurisdiction over an ejectment case even if the question of possession cannot be resolved without passing upon the issue of ownership, with the express qualification that such issue of ownership shall be resolved only for the purpose of determining the issue of possession. In other words, the fact that the issues of ownership and possession de facto are intricately interwoven will not cause the dismissal of the case for forcible entry and unlawful detainer on jurisdictional grounds.

law which, as stated at the outset, has recently been restated in the 1997 Rules of Civil Procedure. The guidelines pertinent to this case state:

Another development in the law has emphasized the fact that inferior courts shall not lose jurisdiction over ejectment cases solely because the issue of ownership is interwoven with the issue of possession. Under the 1983 Rules on Summary Procedure, as amended by a resolution of this Court that took effect on November 15, 1991, all forcible entry and unlawful detainer cases shall be tried pursuant to the Revised Rules on Summary Procedure, regardless of whether or not the issue of ownership of the subject property is alleged by a party.[23] In other words, even if there is a need to resolve the issue of ownership, such fact will not deprive the inferior courts of jurisdiction over ejectment cases[24] that shall be tried summarily.

2. It must sufficiently appear from the allegations in the complaint that what the plaintiff really and primarily seeks is the restoration of possession. Consequently, where the allegations of the complaint as well as the reliefs prayed for clearly establish a case for the recovery of ownership, and not merely one for the recovery of possession de facto, or where the averments plead the claim of material possession as a mere elemental attribute of such claim for ownership, or where the issue of ownership is the principal question to be resolved, the action is not one for forcible entry but one for title to real property.

When the jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts was expanded, thereby amending Batas Pambansa Blg. 129, by virtue of Republic Act No. 7691 that took effect on April 15, 1994, the jurisdiction of said courts over ejectment cases was retained. Thus, in Hilario v. Court of Appeals this Court said: x x x. As the law now stands, inferior courts retain jurisdiction over ejectment cases even if the question of possession cannot be resolved without passing upon the issue of ownership; but this is subject to the same caveat that the issue posed as to ownership could be resolved by the court for the sole purpose of determining the issue of possession. Thus, an adjudication made therein regarding the issue of ownership should be regarded as merely provisional and, therefore, would not bar or prejudice an action between the same parties involving title to the land. The foregoing doctrine is a necessary consequence of the nature of forcible entry and unlawful detainer cases where the only issue to be settled is the physical or material possession over the real property, that is, possession de facto and not possession de jure. In other words, inferior courts are now conditionally vested with adjudicatory power over the issue of title or ownership raised by the parties in an ejectment suit.[25] These courts shall resolve the question of ownership raised as an incident in an ejectment case where a determination thereof is necessary for a proper and complete adjudication of the issue of possession. Considering the difficulties that are usually encountered by inferior courts as regards the extent of their power in determining the issue of ownership, in Sps. Refugia v. Court of Appeals, the Court set out guidelines to be observed in the implementation of the

1. The primal rule is that the principal issue must be that of possession, and that ownership is merely ancillary thereto, in which case the issue of ownership may be resolved but only for the purpose of determining the issue of possession. Thus, x x x, the legal provision under consideration applies only where the inferior court believes and the preponderance of evidence shows that a resolution of the issue of possession is dependent upon the resolution of the question of ownership.

x x x x x x x x x, 5. Where the question of who has the prior possession hinges on the question of who the real owner of the disputed portion is, the inferior court may resolve the issue of ownership and make a declaration as to who among the contending parties is the real owner. In the same vein, where the resolution of the issue of possession hinges on a determination of the validity and interpretation of the document of title or any other contract on which the claim of possession is premised, the inferior court may likewise pass upon these issues. This is because, and it must be so understood, that any such pronouncement made affecting ownership of the disputed portion is to be regarded merely as provisional, hence, does not bar nor prejudice an action between the same parties involving title to the land. Moreover, Section 7, Rule 70 of the Rules of Court expressly provides that the judgment rendered in an action for forcible entry or unlawful detainer shall be effective with respect to the possession only and in no wise bind the title or affect the ownership of the land or building.[26] (Emphasis supplied.) In the case at bar, petitioners clearly intended recovery of possession over the Gilmore property. They alleged in their complaint for unlawful detainer that their claim for possession is buttressed by the execution of the Deed of Sale with Assumption of Mortgage, a copy of which was attached as Annex A to the complaint and by the issuance of TCT No. 67990 that evidenced the transfer of ownership over the property.[27] Because metropolitan trial courts are authorized to look into the ownership of the property in controversy in ejectment cases, it behooved MTC Branch 41 to examine the bases for petitioners claim of ownership that entailed interpretation of the Deed of Sale with Assumption of Mortgage.

However, while it quoted paragraph (c) of the Deed of Sale with Assumption of Mortgage that embodies the agreement of the parties that possession of the Gilmore property and its improvements shall remain with the vendor that was obliged to transfer possession only after the expiration of one year,[28] MTC Branch 41 apparently did not examine the terms of the deed of sale. Instead, it erroneously held that the issue of whether or not the document was in fact an equitable mortgage should not be properly raised in this case. Had it examined the terms of the deed of sale, which, after all is considered part of the allegations of the complaint having been annexed thereto, that court would have found that, even on its face, the document was actually one of equitable mortgage and not of sale. The inferior court appears to have forgotten that all documents attached to a complaint, the due execution and genuineness of which are not denied under oath by the defendant, must be considered as part of the complaint without need of introducing evidence thereon.[29] Article 1602 of the Civil Code provides that a contract shall be presumed to be an equitable mortgage by the presence of any of the following: (1) When the price of a sale with right to repurchase is unusually inadequate; (2) When the vendor remains in possession as lessee or otherwise; (3) When upon or after the expiration of the right to repurchase another instrument extending the period of redemption or granting a new period is executed; (4) When the purchaser retains for himself a part of the purchase price; (5) When the vendor binds himself to pay the taxes on the thing sold; (6) In any other case where it may be fairly inferred that the real intention of the parties is that the transaction shall secure the payment of a debt or the performance of any other obligation. Article 1604 of the same Code provides that the provisions of Article 1602 shall also apply to a contract purporting to be an absolute sale. The presence of even one of the circumstances in Article 1602 is sufficient basis to declare a contract as one of equitable mortgage.[30] The explicit provision of Article 1602 that any of those circumstances would suffice to construe a contract of sale to be one of equitable mortgage is in consonance with the rule that the law favors the least transmission of property rights. The Deed of Sale with Assumption of Mortgage covering the 2,000-square-meter lot located at No. 52 Gilmore Street, New Manila, Quezon City provides as follows: 3. That the total consideration for the sale of the above-described property by the VENDOR to the VENDEES is FOURTEEN MILLION (P14,000,000.00) PESOS, in Philippine currency, payable as follows:

a) The VENDOR shall be paid by the VENDEE the sum of FIVE MILLION FOUR HUNDRED THOUSAND (P5,400,000.00) PESOS upon the signing and execution of this Deed of Sale With Assumption of Mortgage after computation of the mortgage obligation of the VENDOR with CHINA BANKING CORPORATION in the amount of ______________________ which the VENDEES agree to assume as part of the consideration of this sale. The VENDEES hereby assume the mortgage obligation of the VENDOR with the CHINA BANKING CORPORATION in the total amount of ___________________. b) The VENDOR hereby undertakes and agrees with the VENDEES that the first-named party shall warrant and defend the title of said real property hereby conveyed in favor of the VENDEES, their heirs, successors or assigns, against all just claims of all persons or entities; that the VENDOR also guarantees the right of the VENDEES to the possession of the property subject of this contract without the need of judicial action; and furthermore, the VENDOR binds itself to execute any additional documents to complete the title of the VENDEES to the above-described property so that it may be registered in the name of the VENDEES in accordance with the provisions of the Land Registration Act. c) It is hereby expressly agreed and understood by and between the VENDOR and the VENDEES that the house and other improvements found in the premises are included in this sale and that possession of said premises shall be delivered to the VENDEES by the VENDOR at the expiration of one (1) year from the date of the signing and execution of this Deed of Sale with Assumption of Mortgage. d) It is furthermore expressly provided and agreed by and between the VENDOR and the VENDEES that the capital gains tax shall be paid by the VENDOR while any and all fees and expenses incident to the registration and transfer of the title to the aforementioned property shall be defrayed and borne by the VENDEES. e) Attached to this Deed of Sale with Assumption of Mortgage as Annex `A thereof is the Certificate of ROSANA FLORES, Corporate Secretary of PRICILIANO B. DEVELOPMENT CORPORATION, a corporation duly organized and existing under Philippine Laws who certified that at a special meeting of the Board of Directors of said corporation held on December 3, 1991 at which meeting a quorum was present, the following resolution was adopted and passed, to wit: `RESOLVED, AS IT IS HEREBY RESOLVED, that the company, PRICILIANO B. GONZALES DEVELOPMENT is (sic) hereby authorized the President, Mr. Antonio B. Gonzales to enter into and/or negotiate for the sale of a property described as Transfer Certificate of Title No. 383917 with an area of TWO THOUSAND (2,000) SQUARE METERS under the Registry of Deeds of Quezon City; `RESOLVED FURTHER, that Mr. ANTONIO B. GONZALES, is hereby authorized to sign, execute any and all documents relative thereto.

That aforesaid resolution is in full force and effect. (sgd.) ROSANA FLORES Corporate Secretary (SGD.) f) Full title and possession over the above-described property shall vest upon the VENDEES upon the full compliance by them with all the terms and conditions herein set forth.[31] (Underscoring supplied.) That under the agreement the private respondent as vendor shall remain in possession of the property for only one year, did not detract from the fact that possession of the property, an indicium of ownership, was retained by private respondent as the alleged vendor. That period of time may be deemed as actually the time allotted to private respondent for fulfilling its part of the agreement by paying its indebtedness to petitioners. This may be gleaned from paragraph (f) that states that full title and possession of the property shall vest upon the VENDEES upon the full compliance by them with all the terms and conditions herein set forth. Paragraph (f) of the contract also evidences the fact that the agreed purchase price of fourteen million pesos (P14,000,000.00) was not handed over by petitioners to private respondent upon the execution of the agreement. Only P5,400,000.00 was given by petitioners to private respondent, as the balance thereof was to be dependent upon the private respondents satisfaction of its mortgage obligation to China Banking Corporation. Notably, the MTC found that petitioners gave private respondent the amount of P8,500,000.00 that should be paid to the bank to cover the latters obligation, thereby leaving the amount of P100,000.00 (P5,400,000.00 + P8,500,000.00 = P13,900,000.00) of the purchase price still unpaid and in the hands of petitioners, the alleged vendees. Hence, two of the circumstances enumerated in Article 1602 are manifest in the Deed of Sale with Assumption of Mortgage, namely: (a) the vendor would remain in possession of the property (no. 2), and (b) the vendees retained a part of the purchase price (no. 4). On its face, therefore, the document subject of controversy, is actually a contract of equitable mortgage. The denomination of the contract as a deed of sale is not binding as to its nature. The decisive factor in evaluating such an agreement is the intention of the parties, as shown, not necessarily by the terminology used in the contract, but by their conduct, words, actions and deeds prior to, during and immediately after executing the

agreement.[32] Private respondents possession over the property was not denied by petitioners as in fact it was the basis for their complaint for unlawful detainer. Neither does the issuance of a new transfer certificate of title in petitioners favor import conclusive evidence of ownership or that the agreement between the parties was one of sale.[33] In Macapinlac v. Gutierrez Repide, this Court said: x x x it must be borne in mind that the equitable doctrine x x x to the effect that any conveyance intended as security for a debt will be held in effect to be a mortgage, whether so actually expressed in the instrument or not, operates regardless of the form of the agreement chosen by the contracting parties as the repository of their will. Equity looks through the form and considers the substance; and no kind of engagement can be adopted which will enable the parties to escape from the equitable doctrine to which reference is made. In other words, a conveyance of land, accompanied by registration in the name of the transferee and the issuance of a new certificate, is no more secured from the operation of the equitable doctrine than the most informal conveyance that could be devised.[34] A closer look into the allegations of the complaint would therefore show that petitioners failed to make out a case for unlawful detainer. By the allegations in the complaint, private respondent as a mortgagor had the right to posses the property. A mortgage is a real right constituted to secure an obligation upon real property or rights therein to satisfy with the proceeds of the sale thereof such obligation when the same becomes due and has not been paid or fulfilled.[35] The mortgagor generally retains possession of the mortgaged property[36] because by mortgaging a piece of property, a debtor merely subjects it to a lien but ownership thereof is not parted with.[37] In case of the debtors nonpayment of the debt secured by the mortgage, the only right of the mortgagee is to foreclose the mortgage and have the encumbered property sold to satisfy the outstanding indebtedness. The mortgagors default does not operate to vest in the mortgagee the ownership of the encumbered property, for any such effect is against public policy.[38] Even if the property is sold at a foreclosure sale, only upon expiration of the redemption period, without the judgment debtor having made use of his right of redemption, does ownership of the land sold become consolidated in the purchaser.[39] Petitioners tenuous claim for possession of the Gilmore property was emasculated further by private respondents answer to their complaint. The latter claimed ownership of the property, alleging that the agreement was one of mortgage and not of sale. Private respondent alleged therein that in March 1993 (sic), it borrowed money from petitioner Felicidad Oronce alone to redeem the subject property from China Banking Corporation. She agreed to lend it the amount on condition that the Gilmore property should be mortgaged to her to guarantee payment of the loan. However, petitioner Flaminiano took the money from petitioner Oronce and paid the mortgage obligation of private respondent to the China Banking Corporation while claiming that 50% of the amount was hers.

Petitioner Flaminianos husband, Atty. Eduardo Flaminiano, forthwith prepared the Deed of Sale with Assumption of Mortgage and, without private respondents knowledge, had it registered for which reason a new certificate of title was issued to petitioners. In claiming that the agreement was one of mortgage, private respondent alleged in its answer, inter alia, that the actual total value of the property was thirty million pesos (P30,000,000.00); that while it had possession of the property, petitioners did not then attempt to repossess the same, notwithstanding the lapse of one year from the execution of the document; that petitioners did not pay the real estate taxes even after the transfer of title in their favor, and that petitioners did not deliver to private respondent the alleged purchase price. Considering these claims of private respondent, MTC Branch 41 should have passed upon the issues raised on the ownership of the Gilmore property for the purpose of determining who had the right to possess the same. As it turned out, it simply accepted the allegations of petitioners without examining the supporting documents. Had it closely analyzed the documents, it would have concluded that petitioners could not have validly ousted private respondent from the property since the basis for its claim of ownership, the Deed of Sale with Assumption of Mortgage, was actually a document evidencing an equitable mortgage. It would have accordingly dismissed the complaint for lack of cause of action. In fine, had the MTC exercised its bounden duty to study the complaint, it would have dismissed the same for lack of cause of action upon a provisional ruling on the issue of ownership based on the allegations and annexes of the complaint. Or, exercising caution in handling the case, considering petitioners bare allegations of ownership, it should have required the filing of an answer to the complaint and, having been alerted by the adverse claim of ownership over the same property, summarily looked into the issue of ownership over the property. As this Court declared in Hilario v. Court of Appeals: It is underscored, however, that the allegations in the complaint for ejectment should sufficiently make out a case for forcible entry or unlawful detainer, as the case may be; otherwise, jurisdiction would not vest in the inferior court. Jurisdiction over the subject matter is, after all, determined by the nature of the action as alleged or pleaded in the complaint. Thus, even where the defendant alleges ownership or title to the property in his or her answer, the inferior court will not be divested of its jurisdiction. A contrary rule would pave the way for the defendant to trifle with the ejectment suit, which is summary in nature, as he could easily defeat the same through the simple expedient of asserting ownership.[40] As discussed above, even a perusal of the complaint without going over the claims of private respondent in his answer would have sufficed to arrive at a provisional determination of the issue of ownership. The importance of such provisional ruling on the issue of ownership is demanded by the fact that, in the event that the claim of the plaintiff in an ejectment case is controverted as in this case, any ruling on the right of possession would be shaky, meaningless and fraught with unsettling consequences on the property

rights of the parties. After all, the right of possession must stand on a firm claim of ownership. Had the MTC made a provisional ruling on the issue of ownership, the parties would have availed of other remedies in law early on to thresh out their conflicting claims. Private respondents action for reformation of instrument was in fact a step in the right direction. However, its failure to pursue that action[41] did not imply that private respondent had no other remedy under the law as regards the issue of ownership over the Gilmore property. There are other legal remedies that either party could have availed of. Some of these remedies, such as an action for quieting of title, have been held to coexist with actions for unlawful detainer.[42] There is a policy against multiplicity of suits but under the circumstances, only the institution of proper proceedings could settle the controversy between the parties in a definitive manner. Hence, although the Court of Appeals resolved the appeal under the misconception that the action for reformation of instrument was still viable, it correctly held that the controversy between the parties was beyond the ordinary issues in an ejectment case. Because of the opposing claims of the parties as to the true agreement between them, the issue of ownership was in a sense a prejudicial question that needed determination before the ejectment case should have been filed. To reiterate, a decision reached in the ejectment case in favor of any of the parties would have nonetheless spawned litigation on the issue of ownership. At any rate, proceedings would have been facilitated had the inferior courts made even a provisional ruling on such issue. The contentious circumstances surrounding the case were demonstrated by an occurrence during the pendency of this petition that cries out for the resolution of the issue of ownership over the Gilmore property. After the parties had filed their respective memoranda before this Court, private respondent filed an urgent motion to cite petitioner Rosita L. Flaminiano and her husband, Atty. Eduardo B. Flaminiano, in contempt of court.[43] The motion was founded on an affidavit of Dr. Tadeo Gonzales who resided at the contested property, deriving his right to do so from private respondent corporation that is owned by his family. Gonzales alleged that on September 20, 1997, petitioner Flaminiano and her husband entered the property through craftiness and intimidation. At around 5:30 p.m. on that day, two (2) men knocked at the gate. When the houseboy, Luis R. Fernandez, opened the gate for pedestrians tentatively, the two men told him that they would like to visit Gonzales mother who was ailing. Once inside, the two men identified themselves as policemen and opened the gate for twenty (20) men, two (2) trucks and an L-300 van to enter. When Gonzales went outside the house, he saw thirty (30) to forty (40) men and two (2) trucks entering the driveway. The person he asked regarding the presence of those people inside the property turned out to be the brother of petitioner Flaminiano. That person said, Kami ang may-ari dito. Matagal na kaming nagtitiis, kayo ang dapat sa labas. After Gonzales had told him that the

property was still under litigation before this Court, the man said, Walang Supreme Court Supreme Court. When Gonzales asked petitioner Flaminiano, who was inside the premises, to order the people to leave, she said, Papapasukin namin ito dahil sa amin ito. Maglalagay ako ng tao diyan sa loob, sa harap, sa likod. Wala ng pakiusap. When a power generator was brought inside the property and Gonzales pleaded that it be taken out because the noise it would create would disturb his ailing mother, Emiliana Gonzales, petitioner Flaminiano said, Walang awa-awa sa akin. Atty. Flaminiano butted in and, referring to Gonzales mother, said, Ialis mo na, matanda na pala. When Gonzales prevented the switching on of some lights in the house due to faulty wiring, Atty. Flaminiano suggested, Bakit hindi mo ipasunog ito? May insurance pa kayo 5 million, madali lang yan. Short circuit. Since the Flaminianos and their crew were not about to leave the property, Gonzales called up his brother, Atty. Antonio Gonzales, and informed him of what happened. However, instead of confining themselves in the driveway, the Flaminianos and their group entered the terrace, bringing in food. Gonzales was all the while concerned about his 81-year-old mother who had just been discharged from the hospital. However, the Flaminianos stayed until the next day, September 22, 1997, using the kitchen, furniture and other fixtures in the house. Gonzales took pictures of Flaminiano and his companions. When Atty. Flaminiano arrived, he confronted Gonzales and told him, Hindi ako natatakot kahit kanino ka pa mag-report, kahit pa sa Supreme Court, gusto ko nga mag-reklamo kayo para matapos ang kaso. Sa September 25, may shooting dito, gagawin ko ang gusto ko dito.[44] The affidavits of Renato C. Mola, driver of Atty. Antonio Gonzales, and that of Luis R. Fernandez, houseboy of Dr. Tadeo Gonzales, as well as the xerox copy of the sworn statement dated September 21, 1997 of Pria B. Gonzales before the Philippine National Police in Camp Crame where she filed a complaint against Atty. Flaminiano for the illegal entry into their house, support the affidavit of Dr. Gonzales. In its supplemental motion[45] to cite petitioner Flaminiano and her husband, Atty. Flaminiano, in contempt of court, private respondent alleged that the Flaminianos committed additional contumacious acts in preventing another member of the family, Mrs. Cipriana Gonzales, from entering the property. In her affidavit, Mrs. Gonzales said that the Flaminianos and their people used the whole house, except the bedrooms, for their filming activities.[46] Thereafter, private respondent filed an urgent motion for the issuance of a temporary restraining order and/or writ of preliminary injunction with this Court to enjoin petitioners, Atty. Flaminiano and their representatives and agents from preventing private respondent, its agents and representatives from entering the property and to cease and desist from occupying the property or from committing further acts of dispossession of the property.[47] On October 13, 1997, this Court issued the temporary restraining order prayed for.[48] In the motion it filed on October 21, 1997,[49] private respondent informed

the Court that the TRO could not be served upon petitioners immediately because, Atty. Flaminiano, their counsel of record, had changed address without informing the Court. It was served upon said counsel only on October 15, 1997. However, instead of complying with this Courts order, petitioners continued occupying the property. On October 16, 1997, after receiving a copy of the TRO, petitioners put up a huge billboard in front of the property stating that it is the national headquarters of the Peoples Alliance for National Reconciliation and Unity for Peace and Progress (PANRUPP). In their comment on the motion for contempt, petitioners noticeably did not controvert the facts set forth by private respondent in said motion. Instead, it reasserted its claim of ownership over the property as evidenced by TCT No. 67990. They alleged that they had mortgaged the property to the Far East Bank and Trust Company in the amount of thirty million pesos (P30,000,000.00) for which they are paying a monthly interest of around P675,000.00 without enjoying the material possession of the subject property which has been unlawfully and unjustly detained by private respondent for the last four (4) years as it was used as the residence of the members of the family of its President ANTONIO B. GONZALES without the said private respondent paying rentals thereon for the period from January 1995 up to October 5, 1997 when the said property was voluntarily vacated by the members of the President (sic) of respondent corporation, ANTONIO B. GONZALES, who has since then been a fugitive from justice having been convicted by final judgment of the crime of estafa through falsification of public document and has succeeded in evading his sentence. They averred that Tadeo Gonzales erroneously claimed that the rights of ownership and possession over the property are still under litigation because the issue of ownership is no longer involved in this litigation when the complaint for reformation of instrument with annulment of sale and title filed by private respondent was dismissed with finality by reason of non-suit. Hence, they claimed that they now stand to be the unquestionable registered and lawful owners of the property subject of controversy and that the July 24, 1996 Decision of the Court of Appeals has already lost its virtuality and legal efficacy with the occurrence of a supervening event which is a superior cause superseding the basis of the judgment in CA-G.R. No. 39227 of respondent court. They informed the Court that they are now leasing the property to PANRUPP from October 1, 1997 to September 30, 1998. They alleged, however, that the property is in a deplorable state of decay and deterioration that they saw the need to act swiftly and decisively to prevent further destruction of the property where they invested millions of pesos of their life-time savings to acquire the same. Hence, they sought the assistance of barangay officials in Barangay Mariana, New Manila who helped them effect the peaceful entry into the property of the petitioners without the use of strategy, force and intimidation contrary to what was alleged in the motion for contempt. They peacefully took over possession of the property on September 20, 1997 but allowed the immediate members of the family of private respondents president to stay on. The family finally

agreed to vacate the premises on October 5, 1997 upon the offer of the petitioners to shoulder partially the expenses for the hospitalization of the ailing mother at the St. Luke General Hospital where she was brought by an ambulance accompanied by a doctor at petitioners expense. Petitioners questioned the issuance by this Court of the TRO on October 13, 1997, asserting that when it was issued, there were no more acts to restrain the illegal occupants of the subject property (as they) had already peacefully vacated the premises on October 5, 1997 or more than a week after the said TRO was issued by the Third Division of this Court. They prayed that the motion for contempt be denied for lack of merit and that the TRO issued be lifted and set aside for the act or acts sought to be restrained have already been done and have become a fait accompli before the issuance of the TEMPORARY RESTRAINING ORDER on October 13, 1997.[50] As earlier discussed, petitioners claim that the dismissal of the action for reformation of instrument for non-suit had written finis to the issue of ownership over the Gilmore property is totally unfounded in law. Petitioners should be reminded that the instant petition stemmed from an unlawful detainer case, the issue of which is merely possession of the property in question. The issue of ownership has not been definitively resolved for the provisional determination of that issue that should have been done by the MTC at the earliest possible time, would only be for the purpose of determining who has the superior right to possess the property. Inasmuch as this Court has resolved that the rightful possessor should have been private respondent and its representatives and agents, the TRO issued by this Court on October 13, 1997 should not be lifted.That the TRO was issued days before private respondent left the property is immaterial. What is in question here is lawful possession of the property, not possession on the basis of self-proclaimed ownership of the property. For their part, petitioners should cease and desist from further exercising possession of the same property which possession, in the first place, does not legally belong to them. The conduct of petitioner Flaminiano in taking possession over the property as alleged by private respondent through Tadeo Gonzales is deplorably high-handed. On an erroneous assumption that she had been legally vested with ownership of the property, she took steps prior to the present proceedings by illegally taking control and possession of the same property in litigation. Her act of entering the property in defiance of the writ of preliminary injunction issued by the Court of Appeals constituted indirect contempt under Section 3, Rule 71 of the Rules of Court that should be dealt with accordingly. Be that as it may, what is disturbing to the Court is the conduct of her husband, Eduardo Flaminiano, a lawyer[51] whose actuations as an officer of the court should be beyond reproach. His contumacious acts of entering the Gilmore property without the consent of its occupants and in contravention of the existing writ or preliminary injunction issued by the Court of Appeals and making utterances showing disrespect for the law and this Court,

are certainly unbecoming of a member of the Philippine Bar. To be sure, he asserted in his comment on the motion for contempt that petitioners peacefully took over the property. Nonetheless, such peaceful take-over cannot justify defiance of the writ of preliminary injunction that he knew was still in force. Notably, he did not comment on nor categorically deny that he committed the contumacious acts alleged by private respondent. Through his acts, Atty. Flaminiano has flouted his duties as a member of the legal profession. Under the Code of Professional Responsibility, he is prohibited from counseling or abetting activities aimed at defiance of the law or at lessening confidence in the legal system.[52] WHEREFORE, the instant petition for review on certiorari is hereby DENIED and the questioned Decision of the Court of Appeals AFFIRMED without prejudice to the filing by either party of an action regarding the ownership of the property involved. The temporary restraining order issued on October 13, 1997 is hereby made permanent. Petitioners and their agents are directed to turn over possession of the property to private respondent. Petitioner Rosita Flaminiano is hereby held guilty of contempt of court for disobeying the writ of injunction issued by the Court of Appeals and accordingly fined P20,000.00 therefor. Her counsel and husband, Atty. Eduardo B. Flaminiano, is ordered to pay a fine of P25,000.00 for committing contumacious acts unbecoming of a member of the Philippine Bar with a stern warning that a repetition of the same acts shall be dealt with more severely. Let a copy of this Decision be attached to his record at the Office of the Bar Confidant. This Decision is immediately executory. Costs against petitioners. SO ORDERED. Narvasa, C.J., (Chairman), Kapunan, and Purisima, JJ., concur. Pardo, J., no part.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 104599 March 11, 1994 JON DE YSASI III, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION (FOURTH DIVISION), CEBU CITY, and JON DE YSASI, respondents. F.B. Santiago, Nalus & Associates for petitioner.

Following his marriage on June 6, 1982, petitioner moved to Bacolod City with his wife and commuted to work daily. He suffered various ailments and was hospitalized on two separate occasions in June and August, 1982. In November, 1982, he underwent fistulectomy, or the surgical removal of the fistula, a deep sinuous ulcer. During his recuperation which lasted over four months, he was under the care of Dr. Patricio Tan. In June, 1983, he was confined for acute gastroenteritis and, thereafter, for infectious hepatitis from December, 1983 to January, 1984. During the entire periods of petitioner's illnesses, private respondent took care of his medical expenses and petitioner continued to receive compensation. However, in April, 1984, without due notice, private respondent ceased to pay the latter's salary. Petitioner made oral and written demands for an explanation for the sudden withholding of his salary from Atty. Apolonio Sumbingco, private respondent's auditor and legal adviser, as well as for the remittance of his salary. Both demands, however, were not acted upon.

REGALADO, J.:

Petitioner then filed an action with the National Labor Relations Commission (NLRC, for brevity), Regional Arbitration Branch No. VI, Bacolod City, on October 17, 1984, docketed therein as RAB Case No. 0452-84, against private respondent for illegal dismissal with prayer for reinstatement without loss of seniority rights and payment of full back wages, thirteenth month pay for 1983, consequential, moral and exemplary damages, as well as attorney's fees.

The adage that blood is thicker than water obviously stood for naught in this case, notwithstanding the vinculum of paternity and filiation between the parties. It would indeed have been the better part of reason if herein petitioner and private respondent had reconciled their differences in an extrajudicial atmosphere of familial amity and with the grace of reciprocal concessions. Father and son opted instead for judicial intervention despite the inevitable acrimony and negative publicity. Albeit with distaste, the Court cannot proceed elsewise but to resolve their dispute with the same reasoned detachment accorded any judicial proceeding before it.

On July 31, 1991, said complaint for illegal dismissal was dismissed by the NLRC,1 holding that petitioner abandoned his work and that the termination of his employment was for a valid cause, but ordering private respondent to pay petitioner the amount of P5,000.00 as penalty for his failure to serve notice of said termination of employment to the Department of Labor and Employment as required by Batas Pambansa Blg. 130 and consonant with this Court's ruling in Wenphil Corporation vs. National Labor Relations Commission, et al.2 On appeal to the Fourth Division of the NLRC, Cebu City, said decision was affirmed in toto.3

The records of this case reveal that petitioner was employed by his father, herein private respondent, as farm administrator of Hacienda Manucao in Hinigaran, Negros Occidental sometime in April, 1980. Prior thereto, he was successively employed as sales manager of Triumph International (Phil.), Inc. and later as operations manager of Top Form Manufacturing (Phil.), Inc. His employment as farm administrator was on a fixed salary, with other allowances covering housing, food, light, power, telephone, gasoline, medical and dental expenses.

His motion for reconsideration4 of said decision having been denied for lack of merit,5 petitioner filed this petition presenting the following issues for resolution: (1) whether or not the petitioner was illegally dismissed; (2) whether or not he is entitled to reinstatement, payment of back wages, thirteenth month pay and other benefits; and (3) whether or not he is entitled to payment of moral and exemplary damages and attorney's fees because of illegal dismissal. The discussion of these issues will necessarily subsume the corollary questions presented by private respondent, such as the exact date when petitioner ceased to function as farm administrator, the character of the pecuniary amounts received by petitioner from private respondent, that is, whether the same are in the nature of salaries or pensions, and whether or not there was abandonment by petitioner of his functions as farm administrator.

Ismael A. Serfino for private respondent.

As farm administrator, petitioner was responsible for the supervision of daily activities and operations of the sugarcane farm such as land preparation, planting, weeding, fertilizing, harvesting, dealing with third persons in all matters relating to the hacienda and attending to such other tasks as may be assigned to him by private respondent. For this purpose, he lived on the farm, occupying the upper floor of the house there.

In his manifestation dated September 14, 1992, the Solicitor General recommended a modification of the decision of herein public respondent sustaining the findings and conclusions of the Executive Labor Arbiter in RAB Case No. 0452-84,6 for which reason the NLRC was required to submit its own comment on the petition. In compliance with the Court's resolution of November 16, 1992,7 NLRC filed its comment on February 12, 1992 largely reiterating its earlier position in support of the findings of the Executive Labor Arbiter.8 Before proceeding with a discussion of the issues, the observation of the labor arbiter is worth noting: This case is truly unique. What makes this case unique is the fact that because of the special relationship of the parties and the nature of the action involved, this case could very well go down (in) the annals of the Commission as perhaps the first of its kind. For this case is an action filed by an only son, his father's namesake, the only child and therefore the only heir against his own father.9 Additionally, the Solicitor General remarked: . . . After an exhaustive reading of the records, two (2) observations were noted that may justify why this labor case deserves special considerations. First, most of the complaints that petitioner and private respondent had with each other, were personal matters affecting father and son relationship. And secondly, if any of the complaints pertain to their work, they allow their personal relationship to come in the way.10 I. Petitioner maintains that his dismissal from employment was illegal because of want of just cause therefor and non-observance of the requirements of due process. He also charges the NLRC with grave abuse of discretion in relying upon the findings of the executive labor arbiter who decided the case but did not conduct the hearings thereof. Private respondent, in refutation, avers that there was abandonment by petitioner of his functions as farm administrator, thereby arming private respondent with a ground to terminate his employment at Hacienda Manucao. It is also contended that it is wrong for petitioner to question the factual findings of the executive labor arbiter and the NLRC as only questions of law may be appealed for resolution by this Court. Furthermore, in seeking the dismissal of the instant petition, private respondent faults herein petitioner for failure to refer to the corresponding pages of the transcripts of stenographic notes, erroneously citing Sections 15(d) and 16(d), Rule 44 (should be Section 16[c] and [d], Rule 46 and Section 1[g], Rule 50) of the Rules of Court, which provide that want of page references to the records is a ground for dismissal of an appeal. Prefatorily, we take advertence of the provisions of Article 221 of the Labor Code that technical rules of evidence prevailing in courts of law and equity shall not be controlling, and that every and all reasonable means to speedily and objectively ascertain the facts in

each case shall be availed of, without regard to technicalities of law or procedure in the interest of due process. It is settled that it is not procedurally objectionable for the decision in a case to be rendered by a judge, or a labor arbiter for that matter, other than the one who conducted the hearing. The fact that the judge who heard the case was not the judge who penned the decision does not impair the validity of the judgment,11 provided that he draws up his decision and resolution with due care and makes certain that they truly and accurately reflect conclusions and final dispositions on the bases of the facts of and evidence submitted in the case.12 Thus, the mere fact that the case was initially assigned to Labor Arbiter Ricardo T. Octavio, who conducted the hearings therein from December 5, 1984 to July 11, 1985, and was later transferred to Executive Labor Arbiter Oscar S. Uy, who eventually decided the case, presents no procedural infirmity, especially considering that there is a presumption of regularity in the performance of a public officer's functions,13 which petitioner has not successfully rebutted. We are constrained to heed the underlying policy in the Labor Code relaxing the application of technical rules of procedure in labor cases in the interest of due process, ever mindful of the long-standing legal precept that rules of procedure must be interpreted to help secure, not defeat, justice. For this reason, we cannot indulge private respondent in his tendency to nitpick on trivial technicalities to boost his arguments. The strength of one's position cannot be hinged on mere procedural niceties but on solid bases in law and jurisprudence. The fundamental guarantees of security of tenure and due process dictate that no worker shall be dismissed except for just and authorized cause provided by law and after due process.14 Article 282 of the Labor Code enumerates the causes for which an employer may validly terminate an employment, to wit: (a) serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; (b) gross and habitual neglect by the employee of his duties; (c) fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative; (d) commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative; and (e) other causes analogous to the foregoing. The employer may also terminate the services of any employee due to the installation of labor saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking, unless the closing is for the purpose of circumventing the pertinent provisions of the Labor Code, by serving a written notice on the workers and the Department of Labor and Employment at least one (1) month before the intended date thereof, with due entitlement to the corresponding

separation pay rates provided by law.15Suffering from a disease by reason whereof the continued employment of the employee is prohibited by law or is prejudicial to his and his co-employee's health, is also a ground for termination of his services provided he receives the prescribed separation pay.16 On the other hand, it is well-settled that abandonment by an employee of his work authorizes the employer to effect the former's dismissal from employment.17 After a careful review of the records of this case, we find that public respondent gravely erred in affirming the decision of the executive labor arbiter holding that petitioner abandoned his employment and was not illegally dismissed from such employment. For want of substantial bases, in fact or in law, we cannot give the stamp of finality and conclusiveness normally accorded to the factual findings of an administrative agency, such as herein public respondent NLRC,18 as even decisions of administrative agencies which are declared "final" by law are not exempt from judicial review when so warranted. 19 The following perceptive disquisitions of the Solicitor General on this point deserve acceptance: It is submitted that the absences of petitioner in his work from October 1982 to December 1982, cannot be construed as abandonment of work because he has a justifiable excuse. Petitioner was suffering from perennial abscess in the peri-anal around the anus and fistula under the medical attention of Dr. Patricio Tan of Riverside Medical Center, Inc., Bacolod City (Tsn, Vol. III, Dr. Tan, February 19, 1986 at 20-44). This fact (was) duly communicated to private respondent by medical bills sent to Hacienda Manucao (Tsn, Vol. III, Dr. Tan, January 22, 1987 at 49-50). During the period of his illness and recovery, petitioner stayed in Bacolod City upon the instruction(s) of private respondent to recuperate thereat and to handle only administrative matters of the hacienda in that city. As a manager, petitioner is not really obliged to live and stay 24 hours a day inside Hacienda Manucao. xxx xxx xxx After evaluating the evidence within the context of the special circumstances involved and basic human experience, petitioner's illness and strained family relation with respondent Jon de Ysasi II may be considered as justifiable reason for petitioner Jon de Ysasi III's absence from work during the period of October 1982 to December 1982. In any event, such absence does not warrant outright dismissal without notice and hearing. xxx xxx xxx The elements of abandonment as a ground for dismissal of an employee are as follows:

(1) failure to report for work or absence without valid or justifiable reason; and (2) clear intention to sever the employer-employee tie (Samson Alcantara, Reviewer in Labor and Social Legislation, 1989 edition, p. 133). This Honorable Court, in several cases, illustrates what constitute abandonment. In Dagupan Bus Company v. NLRC (191 SCRA 328), the Court rules that for abandonment to arise, there must be a concurrence of the intention to abandon and some overt act from which it may be inferred that the employee has no more interest to work. Similarly, in Nueva Ecija I Electric Cooperative, Inc. v. NLRC (184 SCRA 25), for abandonment to constitute a valid cause for termination of employment, there must be a deliberate, unjustified refusal of the employee to resume his employment. . . Mere absence is not sufficient; it must be accompanied by overt acts unerringly pointing to the fact that the employee simply does not want to work anymore. There are significant indications in this case, that there is no abandonment. First, petitioner's absence and his decision to leave his residence inside Hacienda Manucao, is justified by his illness and strained family relations. Second he has some medical certificates to show his frail health. Third, once able to work, petitioner wrote a letter (Annex "J") informing private respondent of his intention to assume again his employment. Last, but not the least, he at once instituted a complaint for illegal dismissal when he realized he was unjustly dismissed. All these are indications that petitioner had no intention to abandon his employment.20 The records show that the parties herein do not dispute the fact of petitioner's confinement in the hospital for his various afflictions which required medical treatment. Neither can it be denied that private respondent was well aware of petitioner's state of health as the former admittedly shouldered part of the medical and hospital bills and even advised the latter to stay in Bacolod City until he was fit to work again. The disagreement as to whether or not petitioner's ailments were so serious as to necessitate hospitalization and corresponding periods for recuperation is beside the point. The fact remains that on account of said illnesses, the details of which were amply substantiated by the attending physician,21 and as the records are bereft of any suggestion of malingering on the part of petitioner, there was justifiable cause for petitioner's absence from work. We repeat, it is clear, deliberate and unjustified refusal to resume employment and not mere absence that is required to constitute abandonment as a valid ground for termination of employment.22 With his position as farm administrator of Hacienda Manucao, petitioner unmistakably may be classified as a managerial employee23 to whom the law grants an amount of discretion in the discharge of his duties. This is why when petitioner stated that "I assigned myself where I want to go,"24 he was simply being candid about what he could do within the sphere of his authority. His duties as farm administrator did not strictly require him to keep regular hours or to be at the office premises at all times, or to be subjected to specific control from his employer in every aspect of his work. What is essential only is

that he runs the farm as efficiently and effectively as possible and, while petitioner may definitely not qualify as a model employee, in this regard he proved to be quite successful, as there was at least a showing of increased production during the time that petitioner was in charge of farm operations. If, as private respondent contends, he had no control over petitioner during the years 1983 to 1984, this is because that was the period when petitioner was recuperating from illness and on account of which his attendance and direct involvement in farm operations were irregular and minimal, hence the supervision and control exercisable by private respondent as employer was necessarily limited. It goes without saying that the control contemplated refers only to matters relating to his functions as farm administrator and could not extend to petitioner's personal affairs and activities. While it was taken for granted that for purposes of discharging his duties as farm administrator, petitioner would be staying at the house in the farm, there really was no explicit contractual stipulation (as there was no formal employment contract to begin with) requiring him to stay therein for the duration of his employment or that any transfer of residence would justify the termination of his employment. That petitioner changed his residence should not be taken against him, as this is undeniably among his basic rights, nor can such fact of transfer of residence per se be a valid ground to terminate an employer-employee relationship. Private respondent, in his pleadings, asserted that as he was yet uncertain of his son's intention of returning to work after his confinement in the hospital, he kept petitioner on the payroll, reported him as an employee of the haciendafor social security purposes, and paid his salaries and benefits with the mandated deductions therefrom until the end of December, 1982. It was only in January, 1983 when he became convinced that petitioner would no longer return to work that he considered the latter to have abandoned his work and, for this reason, no longer listed him as an employee. According to private respondent, whatever amount of money was given to petitioner from that time until April, 1984 was in the nature of a pension or an allowance or mere gratuitous doles from a father to a son, and not salaries as, in fact, none of the usual deductions were made therefrom. It was only in April, 1984 that private respondent completely stopped giving said pension or allowance when he was angered by what he heard petitioner had been saying about sending him to jail. Private respondent capitalizes on the testimony of one Manolo Gomez taken on oral deposition regarding petitioner's alleged statement to him, "(h)e quemado los (p)ue(n)tes de Manucao" ("I have burned my bridges with Manucao") as expressive of petitioner's intention to abandon his job. In addition to insinuations of sinister motives on the part of petitioner in working at the farm and thereafter abandoning the job upon accomplishment of his objectives, private respondent takes the novel position that the agreement to

support his son after the latter abandoned the administration of the farm legally converts the initial abandonment to implied voluntary resignation.25 As earlier mentioned, petitioner ripostes that private respondent undoubtedly knew about petitioner's illness and even paid for his hospital and other medical bills. The assertion regarding abandonment of work, petitioner argues, is further belied by his continued performance of various services related to the operations of the farm from May to the last quarter of 1983, his persistent inquiries from his father's accountant and legal adviser about the reason why his pension or allowance was discontinued since April, 1984, and his indication of having recovered and his willingness and capability to resume his work at the farm as expressed in a letter dated September 14, 1984.26 With these, petitioner contends that it is immaterial how the monthly pecuniary amounts are designated, whether as salary, pension or allowance, with or without deductions, as he was entitled thereto in view of his continued service as farm administrator.27 To stress what was earlier mentioned, in order that a finding of abandonment may justly be made there must be a concurrence of two elements, viz.: (1) the failure to report for work or absence without valid or justifiable reason, and (2) a clear intention to sever the employer-employee relationship, with the second element as the more determinative factor and being manifested by some overt acts. Such intent we find dismally wanting in this case. It will be recalled that private respondent himself admitted being unsure of his son's plans of returning to work. The absence of petitioner from work since mid-1982, prolonged though it may have been, was not without valid causes of which private respondent had full knowledge. As to what convinced or led him to believe that petitioner was no longer returning to work, private respondent neither explains nor substantiates by any reasonable basis how he arrived at such a conclusion. Moreover, private respondent's claim of abandonment cannot be given credence as even after January, 1983, when private respondent supposedly "became convinced" that petitioner would no longer work at the farm, the latter continued to perform services directly required by his position as farm administrator. These are duly and correspondingly evidenced by such acts as picking up some farm machinery/equipment from G.A. Machineries, Inc.,28 claiming and paying for additional farm equipment and machinery shipped by said firm from Manila to Bacolod through Zip Forwarders,29 getting the payment of the additional cash advances for molasses for crop year 1983-1984 from Agrotex Commodities, Inc.,30 and remitting to private respondent through Atty. Sumbingco the sums collected along with receipts for medicine and oil.31 It will be observed that all of these chores, which petitioner took care of, relate to the normal activities and operations of the farm. True, it is a father's prerogative to request or even command his child to run errands for him. In the present case, however, considering the nature of these transactions, as well as the property values and monetary sums

involved, it is unlikely that private respondent would leave the matter to just anyone. Prudence dictates that these matters be handled by someone who can be trusted or at least be held accountable therefor, and who is familiar with the terms, specifications and other details relative thereto, such as an employee. If indeed petitioner had abandoned his job or was considered to have done so by private respondent, it would be awkward, or even out of place, to expect or to oblige petitioner to concern himself with matters relating to or expected of him with respect to what would then be his past and terminated employment. It is hard to imagine what further authority an employer can have over a dismissed employee so as to compel him to continue to perform work-related tasks: It is also significant that the special power of attorney32 executed by private respondent on June 26, 1980 in favor of petitioner, specifically stating — xxx xxx xxx That I, JON de YSASI, Filipino, of legal age, married, and a resident of Hda. Manucao, hereinafter called and referred to as PRINCIPAL, am a sugarcane planter, BISCOM Mill District, and a duly accredited planter-member of the BINALBAGAN-ISABELA PLANTERS' ASSOCIATION, INC.; That as such planter-member of BIPA, I have check/checks with BIPA representing payment for all checks and papers to which I am entitled to (sic) as such planter-member; That I have named, appointed and constituted as by these presents I HEREBY NAME, APPOINT AND CONSTITUTE as my true and lawful ATTORNEY-IN-FACT JON de YSASI III whose specimen signature is hereunder affixed, TO GET FOR ME and in my name, place and stead, my check/checks aforementioned, said ATTORNEY-IN-FACT being herein given the power and authority to sign for me and in my name, place and stead, the receipt or receipts or payroll for the said check/checks. PROVIDED, HOWEVER, that my said ATTORNEY-IN-FACT cannot cash the said check/checks, but to turn the same over to me for my proper disposition. That I HEREBY RATIFY AND CONFIRM the acts of my Attorney-in-Fact in getting the said check/checks and signing the receipts therefor. That I further request that my said check/checks be made a "CROSSED CHECK". xxx xxx xxx remained in force even after petitioner's employment was supposed to have been terminated by reason of abandonment. Furthermore, petitioner's numerous requests for an explanation regarding the stoppage of his salaries and benefits,33 the issuance of

withholding tax reports,34 as well as correspondence reporting his full recovery and readiness to go back to work,35 and, specifically, his filing of the complaint for illegal dismissal are hardly the acts of one who has abandoned his work. We are likewise not impressed by the deposition of Manolo Gomez, as witness for private respondent, ascribing statements to petitioner supposedly indicative of the latter's intention to abandon his work. We perceive the irregularity in the taking of such deposition without the presence of petitioner's counsel, and the failure of private respondent to serve reasonably advance notice of its taking to said counsel, thereby foreclosing his opportunity to cross-examine the deponent. Private respondent also failed to serve notice thereof on the Regional Arbitration Branch No. VI of the NLRC, as certified to by Administrative Assistant Celestina G. Ovejera of said office.36 Fair play dictates that at such an important stage of the proceedings, which involves the taking of testimony, both parties must be afforded equal opportunity to examine and cross-examine a witness. As to the monthly monetary amounts given to petitioner, whether denominated as salary, pension, allowance or ex gratia handout, there is no question as to petitioner's entitlement thereto inasmuch as he continued to perform services in his capacity as farm administrator. The change in description of said amounts contained in the pay slips or in the receipts prepared by private respondent cannot be deemed to be determinative of petitioner's employment status in view of the peculiar circumstances above set out. Besides, if such amounts were truly in the nature of allowances given by a parent out of concern for his child's welfare, it is rather unusual that receipts therefor37 should be necessary and required as if they were ordinary business expenditures. Neither can we subscribe to private respondent's theory that petitioner's alleged abandonment was converted into an implied voluntary resignation on account of the father's agreement to support his son after the latter abandoned his work. As we have determined that no abandonment took place in this case, the monthly sums received by petitioner, regardless of designation, were in consideration for services rendered emanating from an employer-employee relationship and were not of a character that can qualify them as mere civil support given out of parental duty and solicitude. We are also hard put to imagine how abandonment can be impliedly converted into a voluntary resignation without any positive act on the part of the employee conveying a desire to terminate his employment. The very concept of resignation as a ground for termination by the employee of his employment38 does not square with the elements constitutive of abandonment. On procedural considerations, petitioner posits that there was a violation by private respondent of the due process requirements under the Labor Code for want of notice and hearing.39 Private respondent, in opposition, argues that Section 2, Rule XIV, Book V of the Omnibus Rules Implementing the Labor Code applies only to cases where the

employer seeks to terminate the services of an employee on any of the grounds enumerated under Article 282 of the Labor Code, but not to the situation obtaining in this case where private respondent did not dismiss petitioner on any ground since it was petitioner who allegedly abandoned his employment.40 The due process requirements of notice and hearing applicable to labor cases are set out in Rule XIV, Book V of the Omnibus Rules Implementing the Labor Code in this wise: Sec. 2.Notice of Dismissal. — Any employer who seeks to dismiss a worker shall furnish him a written notice stating the particular acts or omission(s) constituting the grounds for his dismissal. In cases of abandonment of work, notice shall be served at the worker's last known address.

Granting arguendo that there was abandonment in this case, it nonetheless cannot be denied that notice still had to be served upon the employee sought to be dismissed, as the second sentence of Section 2 of the pertinent implementing rules explicitly requires service thereof at the employee's last known address, by way of substantial compliance. While it is conceded that it is the employer's prerogative to terminate an employee, especially when there is just cause therefor, the requirements of due process cannot be lightly taken. The law does not countenance the arbitrary exercise of such a power or prerogative when it has the effect of undermining the fundamental guarantee of security of tenure in favor of the employee.42 On the executive labor arbiter's misplaced reliance on the Wenphil case, the Solicitor General rejoins as follows:

xxx xxx xxx

The Labor Arbiter held thus:

Sec. 5.Answer and hearing. — The worker may answer the allegations as stated against him in the notice of dismissal within a reasonable period from receipt of such notice. The employer shall afford the worker ample opportunity to be heard and to defend himself with the assistance of his representative, if he so desires.

While we are in full agreement with the respondent as to his defense of implied resignation and/or abandonment, records somehow showed that he failed to notify the Department of Labor and Employment for his sons' (sic)/complainants' (sic) aba(n)donment as required by BP 130. And for this failure, the other requisite for a valid termination by an employer was not complied with. This however, would not work to invalidate the otherwise (sic) existence of a valid cause for dismissal. The validity of the cause of dismissal must be upheld at all times provided however that sanctions must be imposed on the respondent for his failure to observe the notice on due process requirement. (Wenphil Corp. v. NLRC, G.R. No. 80587). (Decision Labor Arbiter, at 11-12, Annex "C" Petition), . . .

Sec. 6.Decision to dismiss. — The employer shall immediately notify a worker in writing of a decision to dismiss him stating clearly the reasons therefor. Sec. 7.Right to contest dismissal. — Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the Regional Branch of the Commission. xxx xxx xxx Sec. 11.Report of dismissal. — The employer shall submit a monthly report to the Regional Office having jurisdiction over the place of work at all dismissals effected by him during the month, specifying therein the names of the dismissed workers, the reasons for their dismissal, the dates of commencement and termination of employment, the positions last held by them and such other information as may be required by the Ministry for policy guidance and statistical purposes. Private respondent's argument is without merit as there can be no question that petitioner was denied his right to due process since he was never given any notice about his impending dismissal and the grounds therefor, much less a chance to be heard. Even as private respondent controverts the applicability of the mandatory twin requirements of procedural due process in this particular case, he in effect admits that no notice was served by him on petitioner. This fact is corroborated by the certification issued on September 5, 1984 by the Regional Director for Region VI of the Department of Labor that no notice of termination of the employment of petitioner was submitted thereto. 41

This is thus a very different case from Wenphil Corporation v. NLRC, 170 SCRA 69. In Wenphil, the rule applied to the facts is: once an employee is dismissed for just cause, he must not be rewarded re-employment and backwages for failure of his employer to observe procedural due process. The public policy behind this is that, it may encourage the employee to do even worse and render a mockery of the rules of discipline required to be observed. However, the employer must be penalized for his infraction of due process. In the present case, however, not only was petitioner dismissed without due process, but his dismissal is without just cause. Petitioner did not abandon his employment because he has a justifiable excuse.43 II. Petitioner avers that the executive labor arbiter erred in disregarding the mandatory provisions of Article 279 of the Labor Code which entitles an illegally dismissed employee to reinstatement and back wages and, instead, affirmed the imposition of the penalty of P5,000.00 on private respondent for violation of the due process requirements. Private respondent, for his part, maintains that there was error in imposing the fine because that penalty contemplates the failure to submit the employer's report on dismissed employees to the DOLE regional office, as required under Section 5 (now, Section 11), Rule XIV of the

implementing rules, and not the failure to serve notice upon the employee sought to be dismissed by the employer.

respondent (is) so strained that a harmonious and peaceful employee-employer relationship is hardly possible.49

Both the Constitution and the Labor Code enunciate in no uncertain terms the right of every worker to security of tenure.44 To give teeth to this constitutional and statutory mandates, the Labor Code spells out the relief available to an employee in case of its denial:

III. Finally, petitioner insists on an award of moral damages, arguing that his dismissal from employment was attended by bad faith or fraud, or constituted oppression, or was contrary to morals, good customs or public policy. He further prays for exemplary damages to serve as a deterrent against similar acts of unjust dismissal by other employers.

Art. 279. Security of Tenure. — In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits of their monetary equivalent computed from the time his compensation was withheld from him up to the time of actual reinstatement. Clearly, therefore, an employee is entitled to reinstatement with full back wages in the absence of just cause for dismissal.45 The Court, however, on numerous occasions has tempered the rigid application of said provision of the Labor Code, recognizing that in some cases certain events may have transpired as would militate against the practicability of granting the relief thereunder provided, and declares that where there are strained relations between the employer and the employee, payment of back wages and severance pay may be awarded instead of reinstatement,46 and more particularly when managerial employees are concerned.47 Thus, where reinstatement is no longer possible, it is therefore appropriate that the dismissed employee be given his fair and just share of what the law accords him.48 We note with favor and give our imprimatur to the Solicitor General's ratiocination, to wit: As a general rule, an employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and to his backwages computed from the time his compensation was withheld up to the time of his reinstatement. (Morales vs. NLRC, 188 SCRA 295). But in Pacific Cement Company, Inc. vs. NLRC, 173 SCRA 192, this Honorable Court held that when it comes to reinstatement, differences should be made between managers and the ordinary workingmen. The Court concluded that a company which no longer trusts its managers cannot operate freely in a competitive and profitable manner. The NLRC should know the difference between managers and ordinary workingmen. It cannot imprudently order the reinstatement of managers with the same ease and liberality as that of rank and file workers who had been terminated. Similarly, a reinstatement may not be appropriate or feasible in case of antipathy or antagonism between the parties (Morales, vs. NLRC, 188 SCRA 295). In the present case, it is submitted that petitioner should not be reinstated as farm administrator of Hacienda Manucao. The present relationship of petitioner and private

Moral damages, under Article 2217 of the Civil Code, may be awarded to compensate one for diverse injuries such as mental anguish, besmirched reputation, wounded feelings, and social humiliation, provided that such injuries spring from a wrongful act or omission of the defendant which was the proximate cause thereof.50 Exemplary damages, under Article 2229, are imposed by way of example or correction for the public good, in addition to moral, temperate, liquidated or compensatory damages. They are not recoverable as a matter of right, it being left to the court to decide whether or not they should be adjudicated.51 We are well aware of the Court's rulings in a number of cases in the past allowing recovery of moral damages where the dismissal of the employee was attended by bad faith or fraud, or constituted an act oppressive to labor, or was done in a manner contrary to morals, good customs or public policy,52 and of exemplary damages if the dismissal was effected in a wanton, oppressive or malevolent manner.53 We do not feel, however, that an award of the damages prayed for in this petition would be proper even if, seemingly, the facts of the case justify their allowance. In the aforestated cases of illegal dismissal where moral and exemplary damages were awarded, the dismissed employees were genuinely without fault and were undoubtedly victims of the erring employers' capricious exercise of power. In the present case, we find that both petitioner and private respondent can equally be faulted for fanning the flames which gave rise to and ultimately aggravated this controversy, instead of sincerely negotiating a peaceful settlement of their disparate claims. The records reveal how their actuations seethed with mutual antagonism and the undeniable enmity between them negates the likelihood that either of them acted in good faith. It is apparent that each one has a cause for damages against the other. For this reason, we hold that no moral or exemplary damages can rightfully be awarded to petitioner. On this score, we are once again persuaded by the validity of the following recommendation of the Solicitor General: The Labor Arbiter's decision in RAB Case No. 0452-84 should be modified. There was no voluntary abandonment in this case because petitioner has a justifiable excuse for his absence, or such absence does not warrant outright dismissal without notice and hearing.

Private respondent, therefore, is guilty of illegal dismissal. He should be ordered to pay backwages for a period not exceeding three years from date of dismissal. And in lieu of reinstatement, petitioner may be paid separation pay equivalent to one (1) month('s) salary for every year of service, a fraction of six months being considered as one (1) year in accordance with recent jurisprudence (Tan, Jr. vs. NLRC, 183 SCRA 651). But all claims for damages should be dismissed, for both parties are equally at fault.54 The conduct of the respective counsel of the parties, as revealed by the records, sorely disappoints the Court and invites reproof. Both counsel may well be reminded that their ethical duty as lawyers to represent their clients with zeal55 goes beyond merely presenting their clients' respective causes in court. It is just as much their responsibility, if not more importantly, to exert all reasonable efforts to smooth over legal conflicts, preferably out of court and especially in consideration of the direct and immediate consanguineous ties between their clients. Once again, we reiterate that the useful function of a lawyer is not only to conduct litigation but to avoid it whenever possible by advising settlement or withholding suit. He is often called upon less for dramatic forensic exploits than for wise counsel in every phase of life. He should be a mediator for concord and a conciliator for compromise, rather than a virtuoso of technicality in the conduct of litigation.56 Rule 1.04 of the Code of Professional Responsibility explicitly provides that "(a) lawyer shall encourage his client to avoid, end or settle the controversy if it will admit of a fair settlement." On this point, we find that both counsel herein fell short of what was expected of them, despite their avowed duties as officers of the court. The records do not show that they took pains to initiate steps geared toward effecting a rapprochement between their clients. On the contrary, their acerbic and protracted exchanges could not but have exacerbated the situation even as they may have found favor in the equally hostile eyes of their respective clients. In the same manner, we find that the labor arbiter who handled this regrettable case has been less than faithful to the letter and spirit of the Labor Code mandating that a labor arbiter "shall exert all efforts towards the amicable settlement of a labor dispute within his jurisdiction."57 If he ever did so, or at least entertained the thought, the copious records of the proceedings in this controversy are barren of any reflection of the same. One final word. This is one decision we do not particularly relish having been obliged to make. The task of resolving cases involving disputes among members of a family leaves a bad taste in the mouth and an aversion in the mind, for no truly meaningful and enduring resolution is really achieved in such situations. While we are convinced that we have adjudicated the legal issues herein squarely on the bases of law and jurisprudence, sans sentimentality, we are saddened by the thought that we may have failed to bring about the reconciliation of the father and son who figured as parties to this dispute, and that our adherence here to law and duty may unwittingly contribute to the

breaking, instead of the strengthening, of familial bonds. In fine, neither of the parties herein actually emerges victorious. It is the Court's earnest hope, therefore, that with the impartial exposition and extended explanation of their respective rights in this decision, the parties may eventually see their way clear to an ultimate resolution of their differences on more convivial terms. WHEREFORE, the decision of respondent National Labor Relations Commission is hereby SET ASIDE. Private respondent is ORDERED to pay petitioner back wages for a period not exceeding three (3) years, without qualification or deduction,58 and, in lieu of reinstatement, separation pay equivalent to one (1) month for every year of service, a fraction of six (6) months being considered as one (1) whole year. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-29543

November 29, 1969

GLORIA PAJARES, petitioner-appellant, vs. JUDGE ESTRELLA ABAD SANTOS, MUNICIPAL COURT OF MANILA and UDHARAM BAZAR CO.,respondents-appellees. Moises C. Nicomedes for petitioner-appellant. Tomas Lopez Valencia for respondents-appellees. TEEHANKEE, J.: We dismiss as frivolous petitioner-appellant's appeal from the lower Court's Order of dismissal of her petition for a writ of certiorari with prayer for preliminary injunction against respondent judge's order denying her motion for a bill of particulars as the defendant in a simple collection case. The origin of the case is narrated in the Court of Appeals' Resolution dated August 16, 1968 certifying the appeal to this Court as involving purely questions of law: This is an appeal interposed by petitioner Gloria Pajares from the order dated July 21, 1962 issued by the Court of First Instance of Manila, dismissing her petition for certiorari with preliminary injunction against respondent Judge Estrella Abad Santos of the Municipal Court of Manila and respondent Udharam Bazar & Co. There is no dispute that on April 25, 1962, the Udharam Bazar & Co. sued Gloria Pajares before the Municipal Court of Manila for recovery of a certain sum of money. The lawsuit was docketed in the inferior court as Civil Case No. 97309 and was eventually assigned to the sala of the respondent Judge Abad Santos. In its complaint the Udharam Bazar & Co. averred, among others, as follows: "2. That defendant in 1961, ordered from the plaintiff quantities of ready made goods and delivered to her in good condition and same were already sold, but did not make the full payment up to the present time; "3. That defendant is still indebted to the plaintiff in the sum of P354.85, representing the balance of her account as the value of the said goods, which is already overdue and payable."

Instead of answering the complaint against her, Gloria Pajares, however, moved for a bill of particulars praying the inferior court to require the Udharam Bazar & Co. to itemize the kinds of goods which she supposedly purchased from the said company, the respective dates they were taken and by whom they were received as well as their purchase prices, alleging that without this bill she would not be able to meet the issues raised in the complaint. After due hearing, the inferior court denied the motion of Gloria Pajares for a bill of particulars. Her motion for reconsideration having been denied too by the said court, she then brought the incident on certiorari to the Court of First Instance of Manila, alleging in support of her petition that in denying her motion for a bill of particulars, the respondent judge acted in grave abuse of discretion. But on July 19, 1962, herein respondent Udharam Bazar & Co. filed a motion to dismiss the petition for a writ of certiorari, as well as the petition for a writ of preliminary injunction, for the reasons: (1) that the allegations of the complaint filed by the said company in the inferior court, particularly paragraphs 2 and 3 thereof, are clear, specific and sufficiently appraise the defendant, now herein petitioner Gloria Pajares, of the nature of the cause of action against her so as to enable her to prepare for her defenses; and (2) that things asked for in the motion for a bill of particulars are evidentiary matters, which are beyond the pale of such bill. Convinced that the said motion of the company is well founded, the lower court accordingly dismissed the petition on April 21, 1962. Her subsequent motion for reconsideration having been similarly denied by the court below, Gloria Pajares undertook the present appeal to this Court, contending under her lone assignment of error to maintain her such appeal that the lower court erred in dismissing her petition for certiorari with preliminary injunction, in its order dated July 21, 1962, as amended by its order dated August 18, 1962. The only genuine issues involved in the case at bar are: (1) whether the allegations of the complaint sufficiently appraise Gloria Pajares of the nature of the cause of action against her; and (2) whether the items asked for by the said Gloria Pajares in her motion for a bill of particulars constitute evidentiary matters. To our mind these are purely legal questions. A perusal of the brief of the parties has shown that no genuine factual questions are at all involved in this appeal. It is plain and clear that no error of law, much less any grave abuse of discretion, was committed by respondent judge in denying appellant's motion for a bill of particulars in the collection case instituted in the Municipal Court of Manila by private respondent-appellee for the recovery of her indebtedness of P354.85 representing the overdue balance of her account for ready-made goods ordered by and delivered to her in 1961. Appellee's complaint precisely and concisely informed appellant of the ultimate or essential facts constituting the cause of action against her, in accordance with the requirements of the Rules of Court.1

It was therefore improper for appellant, through her counsel, to insist on her motion that appellee as plaintiff "submit a bill of particulars, specifying therein in detail the goods represented by the alleged amount of P354.85, giving the dates and invoice numbers on which they were delivered to the defendant, the amount due on each such invoice and by whom they were received." These particulars sought all concerned evidentiary matters and do not come within the scope of Rule 12, section 1 of the Rules of Court which permits a party "to move for a definite statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or particularly to enable him to prepare his responsive pleading or to prepare for trial." Since appellant admittedly was engaged in the business of buying and selling merchandise at her stall at the Sta. Mesa Market, Quezon City, and appellee was one of her creditors from whom she used to buy on credit ready made goods for resale, appellant had no need of the evidentiary particulars sought by her to enable her to prepare her answer to the complaint or to prepare for trial. These particulars were just as much within her knowledge as appellee's. She could not logically pretend ignorance as to the same, for all she had to do was to check and verify her own records of her outstanding account with appellee and state in her answer whether from her records the outstanding balance of her indebtedness was in the sum of P354.85, as claimed by appellee, or in a lesser amount. The record shows, furthermore, that a month before appellee filed its collection case, it had written appellant a demand-letter for the payment of her outstanding account in the said sum of P354.85 within one week. Appellant, through her counsel, wrote appellee under date of March 23, 1962, acknowledging her said indebtedness but stating that "Due to losses she has sustained in the operation of her stall, she would not be able to meet your request for payment of the full amount of P354.85 at once. I would therefore request you to be kind enough to allow her to continue paying you P10.00 every 15th and end of the month as heretofore." No error was therefore committed by the lower court in summarily dismissing appellant's petition for certiorariagainst respondent judge's order denying her motion for a bill of particulars, as pretended by appellant in her lone assignment of error. Well may we apply to this appeal, the words of Mr. Justice J.B.L. Reyes in an analogous case,2that "the circumstances surrounding this litigation definitely prove that appeal is frivolous and a plain trick to delay payment and prolong litigation unnecessarily. Such attitude deserves condemnation, wasting as it does, the time that the courts could well devote to meritorious cases." Here, this simple collection case has needlessly clogged the court dockets for over seven years. Had appellant been but prudently advised by her counsel to confess judgment and ask from her creditor the reasonable time she needed to discharge her lawful indebtedness, the expenses of litigation that she has incurred by way of filing fees in the Court of First Instance, premiums for her appeal bond, appellate court docket fees,

printing of her appellant's brief, and attorney's fees would have been much more than sufficient to pay off her just debt to appellee. Yet, here she still remains saddled with the same debt, burdened by accumulated interests, after having spent uselessly much more than the amount in litigation in this worthless cause. As we recently said in another case,3 the cooperation of litigants and their attorneys is needed so that needless clogging of the court dockets with unmeritorious cases may be avoided. There must be more faithful adherence to Rule 7, section 5 of the Rules of Court which provides that "the signature of an attorney constitutes a certificate by him that he has read the pleading and that to the best of his knowledge, information and belief, there is good ground to support it; and that it is not interposed for delay" and expressly admonishes that "for a willful violation of this rule an attorney may be subjected to disciplinary action." WHEREFORE, the order appealed from is affirmed, and petitioner-appellant's counsel shall pay treble costs in all instances. This decision shall be noted in the personal record of the attorney for petitioner-appellant in this Court for future reference. So ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Fernando and Barredo, JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. L-36138 January 31, 1974 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO ROSQUETA, JR., EUGENIO ROSQUETA and CITONG BRINGAS, defendants-appellants; ATTY. GREGORIO B. ESTACIO, respondent. RESOLUTION

FERNANDO, J.:1äwphï1.ñët Every now and then, although there seems to be more of such cases of late, a member of the bar is proceeded against for failure to live up to the responsibility owed to a client as well as to this Court. This is another such instance. In our resolution of May 25, 1973, we required respondent Gregorio B. Estacio, counsel de parte for appellants to show cause why disciplinary action should not be taken against him for failure to file the brief for appellants within the period which expired on March 30, 1973. He failed to show cause as thus required, and on September 7, 1973, we issued a resolution suspending him from the practice of law except for the purpose of filing the brief which should be done within thirty days from receipt of notice. Then on October 22, 1973, he filed a motion for reconsideration wherein it appeared that he did seek to explain his failure to file the brief on time, but he left it to be mailed on June 9, 1973 with Antonio Rosqueta, Sr., father of appellants Antonio Rosqueta, Jr. and Eusebio Rosqueta, who, however, was unable to do so as on the 10th of June, his house caught fire. He would impress on this Court that he was not informed of such occurrence until the preparation of his motion for reconsideration. At any rate, he would stress that both Antonio Rosqueta, Sr. and Salvador Labariento, father-in-law of the third appellant, Citong Bringas, informed him they would withdraw the appeal as they could not raise the money needed for pursuing it. He had a supplement to such motion for reconsideration filed on October 25, 1973 wherein he stated that he could not secure the affidavits of appellants themselves as two of them were in the Penal Colony in Davao and the third in the Iwahig Penal Colony in Palawan. On November 5, 1973, this Court required appellants to

comment on a motion for reconsideration of respondent concerning specifically their alleged desire to withdraw appeal. Then on December 27, 1973, there was a motion of respondent submitting two affidavits, one from Antonio Rosqueta, Jr. and the aforesaid Citong Bringas and the other from Eusebio Rosqueta wherein they indicated their consent and approval to respondent's motion to withdraw appeal. The joint affidavit of the first two appellants reads as follows: "1. That we are the same persons named above who have been charged in Criminal Case No. L-36138 entitled People v. Antonio Rosqueta, Jr., et al. pending on appeal before the Supreme Court of the Philippines; 2. That we hereby consent and approve the motion to withdraw the appeal filed by our counsel, Atty. Gregorio B. Estacio before the Supreme Court of the Philippines on that Criminal Case No. L-36138 their pending in said Court; 3. That we have given our consent and approval of our own will voluntarily, without duress, force, threat or fraud or deceit; [In witness whereof], we have hereunto set our signatures this 4th day of December 1973 in the Municipality of Panabo, Davao."1 The affidavit of Eusebio Rosqueta follows: "1. That I am one of the accused in that case entitled People v. Antonio Rosqueta, Jr., et al. under G.R. No. L-36138 now pending before the Supreme Court of the Philippines; 2. That I hereby give my consent and approval to the Motion to Withdraw the Appeal which has been filed by our counsel Atty. Gregorio B. Estacio before the Supreme Court on the above-stated case; 3. That I have reached this conclusion after I have conferred with our counsel Atty. Gregorio B. Estacio and this statement hereby revokes and nullifies the statement signed by me on December 5, 1973 at the Central Sub-Colony, Iwahig Penal Colony, Palawan before witnesses, namely, Mr. Abencio B. Gabayan and Miss Merle J. Jopida; 4. That I have executed this affidavit of my own free will, without intimidation, threat, fraud, deceit, duress or force; [In witness whereof], I have hereunto set my hand this 13th day of December, 1973 in the City of Puerto Princesa."2 Respondent's liability is thus mitigated but he cannot be absolved from the irresponsible conduct of which he is guilty. Respondent should be aware that even in those cases where counsel de parte is unable to secure from appellants or from their near relatives the amount necessary to pursue the appeal, that does not necessarily conclude his connection with the case. It has been a commendable practice of some members of the bar under such circumstances, to be designated as counsel de oficio. That way the interest of justice is best served. Appellants will then continue to receive the benefits of advocacy from one who is familiar with the facts of the case. What is more, there is no undue delay in the administration of justice. Lawyers of such category are entitled to commendation.<äre||anº•1àw> They manifest fidelity to the concept that law is a profession and not a mere trade with those engaged in it being motivated solely by the desire to make money. Respondent's conduct yields a different impression. What has earned a reproof however is his irresponsibility. He should be aware that in the pursuance

of the duty owed this Court as well as to a client, he cannot be too casual and unconcerned about the filing of pleadings. It is not enough that he prepares them; he must see to it that they are duly mailed. Such inattention as shown in this case is inexcusable. At any rate, the suspension meted on him under the circumstances is more than justified. It seems, however, that well-nigh five months had elapsed. That would suffice to atone for his misdeed. WHEREFORE, the suspension of Atty. Gregorio B. Estacio is lifted. The requirement to file the brief is dispensed with but Atty. Gregorio B. Estacio is censured for negligence and inattention to duty. Likewise, as prayed for by appellants themselves, their appeal is dismissed. Zaldivar (Chairman), Barredo, Antonio, Fernandez.and Aquino, JJ., concur.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 80718 January 29, 1988 FELIZA P. DE ROY and VIRGILIO RAMOS, petitioners, vs. COURT OF APPEALS and LUIS BERNAL, SR., GLENIA BERNAL, LUIS BERNAL, JR., HEIRS OF MARISSA BERNAL, namely, GLICERIA DELA CRUZ BERNAL and LUIS BERNAL, SR., respondents. RESOLUTION

CORTES, J.: This special civil action for certiorari seeks to declare null and void two (2) resolutions of the Special First Division of the Court of Appeals in the case of Luis Bernal, Sr., et al. v. Felisa Perdosa De Roy, et al., CA-G.R. CV No. 07286. The first resolution promulgated on 30 September 1987 denied petitioners' motion for extension of time to file a motion for reconsideration and directed entry of judgment since the decision in said case had become final; and the second Resolution dated 27 October 1987 denied petitioners' motion for reconsideration for having been filed out of time. At the outset, this Court could have denied the petition outright for not being verified as required by Rule 65 section 1 of the Rules of Court. However, even if the instant petition did not suffer from this defect, this Court, on procedural and substantive grounds, would still resolve to deny it. The facts of the case are undisputed. The firewall of a burned-out building owned by petitioners collapsed and destroyed the tailoring shop occupied by the family of private respondents, resulting in injuries to private respondents and the death of Marissa Bernal, a daughter. Private respondents had been warned by petitioners to vacate their shop in view of its proximity to the weakened wall but the former failed to do so. On the basis of the foregoing facts, the Regional Trial Court. First Judicial Region, Branch XXXVIII, presided by the Hon. Antonio M. Belen, rendered judgment finding petitioners guilty of gross negligence and awarding damages to private respondents. On appeal, the decision of the trial court was affirmed in toto by the Court of Appeals in a decision promulgated on August 17, 1987, a copy of which was received by petitioners on August 25, 1987. On September 9, 1987, the last day of the fifteen-day period to file an appeal, petitioners filed

a motion for extension of time to file a motion for reconsideration, which was eventually denied by the appellate court in the Resolution of September 30, 1987. Petitioners filed their motion for reconsideration on September 24, 1987 but this was denied in the Resolution of October 27, 1987. This Court finds that the Court of Appeals did not commit a grave abuse of discretion when it denied petitioners' motion for extension of time to file a motion for reconsideration, directed entry of judgment and denied their motion for reconsideration. It correctly applied the rule laid down in Habaluyas Enterprises, Inc. v. Japzon, [G.R. No. 70895, August 5, 1985,138 SCRA 461, that the fifteen-day period for appealing or for filing a motion for reconsideration cannot be extended. In its Resolution denying the motion for reconsideration, promulgated on July 30, 1986 (142 SCRA 208), this Court en banc restated and clarified the rule, to wit: Beginning one month after the promulgation of this Resolution, the rule shall be strictly enforced that no motion for extension of time to file a motion for reconsideration may be filed with the Metropolitan or Municipal Trial Courts, the Regional Trial Courts, and the Intermediate Appellate Court. Such a motion may be filed only in cases pending with the Supreme Court as the court of last resort, which may in its sound discretion either grant or deny the extension requested. (at p. 212) Lacsamana v. Second Special Cases Division of the intermediate Appellate Court, [G.R. No. 73146-53, August 26, 1986, 143 SCRA 643], reiterated the rule and went further to restate and clarify the modes and periods of appeal. Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 15, 1986,144 SCRA 161],stressed the prospective application of said rule, and explained the operation of the grace period, to wit: In other words, there is a one-month grace period from the promulgation on May 30, 1986 of the Court's Resolution in the clarificatory Habaluyas case, or up to June 30, 1986, within which the rule barring extensions of time to file motions for new trial or reconsideration is, as yet, not strictly enforceable. Since petitioners herein filed their motion for extension on February 27, 1986, it is still within the grace period, which expired on June 30, 1986, and may still be allowed. This grace period was also applied in Mission v. Intermediate Appellate Court [G.R. No. 73669, October 28, 1986, 145 SCRA 306].] In the instant case, however, petitioners' motion for extension of time was filed on September 9, 1987, more than a year after the expiration of the grace period on June 30, 1986. Hence, it is no longer within the coverage of the grace period. Considering the length of time from the expiration of the grace period to the promulgation of the decision

of the Court of Appeals on August 25, 1987, petitioners cannot seek refuge in the ignorance of their counsel regarding said rule for their failure to file a motion for reconsideration within the reglementary period. Petitioners contend that the rule enunciated in the Habaluyas case should not be made to apply to the case at bar owing to the non-publication of the Habaluyas decision in the Official Gazette as of the time the subject decision of the Court of Appeals was promulgated. Contrary to petitioners' view, there is no law requiring the publication of Supreme Court decisions in the Official Gazette before they can be binding and as a condition to their becoming effective. It is the bounden duty of counsel as lawyer in active law practice to keep abreast of decisions of the Supreme Court particularly where issues have been clarified, consistently reiterated, and published in the advance reports of Supreme Court decisions (G. R. s) and in such publications as the Supreme Court Reports Annotated (SCRA) and law journals. This Court likewise finds that the Court of Appeals committed no grave abuse of discretion in affirming the trial court's decision holding petitioner liable under Article 2190 of the Civil Code, which provides that "the proprietor of a building or structure is responsible for the damage resulting from its total or partial collapse, if it should be due to the lack of necessary repairs. Nor was there error in rejecting petitioners argument that private respondents had the "last clear chance" to avoid the accident if only they heeded the. warning to vacate the tailoring shop and , therefore, petitioners prior negligence should be disregarded, since the doctrine of "last clear chance," which has been applied to vehicular accidents, is inapplicable to this case. WHEREFORE, in view of the foregoing, the Court Resolved to DENY the instant petition for lack of merit. Fernan (Chairman), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-38581 March 31, 1976 LORENZO JOSE, petitioner, vs. THE COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents. Francisco Carreon & Zosimo D. de Mesa for petitioner. Solicitor General Estelito P. Mendoza, Assistant Solicitor General Eulogio Raquel-Santos and Solicitor Teodoro G. Bonifacio for respondents.

MUÑOZ PALMA, J.: Petitioner Lorenzo Jose who was convicted of illegal possession of explosives (handgrenade) and sentenced to suffer imprisonment of five years, seeks a new trial which was denied him by the Court of First Instance of Pampanga, Branch III, and by respondent Court of Appeals. Petitioner thus poses one legal issue for the Court to resolve, viz: did respondent appellate court commit an error of law and gravely abuse its discretion when it denied petitioner's motion for new trial "for the reception of (1) the written permit of petitioner to possess and use handgrenade, and (2) the written appointment of petitioner as PC agent with Code No. P-36-68 and code Name 'Safari' (both documents are dated 31 January 1968)"? 1 The following incidents are not in dispute: On February 8, 1968, at the poblacion of Floridablanca, Pampanga, petitioner Jose was arrested by the local police leading to the filing with the Court of First Instance of Pampanga, Branch III of several criminal cases against him to wit: illegal discharge of firearm (Crim. Case 6235), robbery (Crim. Case 6236) and illegal possession of explosives (Crim. Case 6237). These three cases were jointly tried after which the trial judge, Hon. Honorio Romero, in a decision dated December 15, 1969, and promulgated on January 15, 1970 2 acquitted accused Lorenzo Jose of illegal discharge of firearm and robbery, but convicted him for illegal possession of the handgrenade that was found on his person at the time of his arrest.

After promulgation of the judgment, petitioner on that same day filed his notice of appeal. Nine days thereafter or more particularly on January 24, 1970, petitioner filed a motion praying that the case be reopened to permit him to present, pursuant to a reservation he had made in the course of the trial, a permit to possess the handgrenade in question. The trial court in its order of January 30, 1970 denied the motion mainly on the ground that it had lost jurisdiction over the case in view of the perfection of the appeal by the accused on the very date the decision was promulgated. 3 The records of Criminal Case 6237 were then elevated to the Court of Appeals where petitioner as accused-appellant raised the issues of (1) an erroneous conviction for illegal possession of explosives when there was no proof of an essential element of the crime, and (2) erroneous denial of his motion to reopen the case for the reception of his permit to possess the handgrenade. 4 In his brief, Lorenzo Jose prayed for his acquittal or in the alternative for the remand of the case back to the trial court for a new trial. Resolving the appeal, respondent Appellate Court, 5 rendered its decision of March 8, 1972, affirming the findings of fact and the judgment of conviction of the court a quo, and declaring that no reversible error was committed by the latter when it denied the reopening of the case as the court had lost its "power to change, modify, or alter its decision." 6 A motion for reconsideration and/or new trial was filed with a plea that "assuming arguendo that the court a quo lacked jurisdiction to act upon appellant's motion for new trial because of the perfection of the appeal, this Honorable Court — before which said motion was reiterated and which has competence to act thereon — should have granted the same if for no other reason than to prevent a miscarriage of justice which is the inevitable result of its denial." 7 This motion for reconsideration was denied in respondent court's resolution of April 3, 1974. 8 A second motion for reconsideration and/or new trial was filed by Lorenzo Jose 9 but this was also denied by the appellate court in a Resolution promulgated on July 24, 1974. 10 Forthwith, appellant Lorenzo Jose assisted by counsel, Atty. Francisco Carreon, filed with Us this petition for review which We denied outright on September 6, 1974, "the question raised being factual and for insufficient showing that the finding of facts by respondent court are unsupported by substantial evidence, and for lack of merit." A motion for reconsideration was filed by petitioner stressing that the following grounds should justify this Court to review the ruling of respondent appellate court to wit: 1. petitioners's plight is of compelling human and legal interest, and his being imprisoned for five (5) years when there is indubitable exculpatory evidence on hand is a result so harsh that the Honorable Court may well undertake a review of the case just to satisfy itself of the justice and inevitability of such a result;

2. a question of substance not heretofore determined by the Honorable Court is involved, as the evidence sought to be introduced at the new trial is, technically, not newly discovered: and 3. the denial of a new trial in the circumstances mentioned in his above-quoted statement of the main legal issue, is contrary to the decisions of this Honorable Court because under these decisions, the new trial should have been granted since there is a 'strong, compelling reason' in this case for granting the relief prayed for, such strong compelling reason being the very strong probability of petitioner's acquittal if a new trial were granted. (Workmen's Insurance Co. vs. Augusto, 40 SCRA 123; Sison vs. Gatchalian, 51 SCRA 262; Rubio vs. Mariano 52 SCRA 338; Montecines vs. Court of Appeals, 53 SCRA 14; Posadas vs. Court of Appeals, L-38071, April 25, 1974; please see Annotation: 52 SCRA 346 ... (pp. 157-158, rollo) The Solicitor General opposed the granting of the foregoing motion for reconsideration claiming that there was neither a denial of "substantial justice nor error of any sort on the part of respondent Court of Appeals, affirming the judgment of convinction," and that it being admitted by petitioner that the evidence sought to be introduced by him at the new trial is not newly discovered evidence, the denial of the new trial "visibly papers as correct". This Opposition drew a lengthy reply from petitioner's counsel. On February 13, 1975, a Manifestation was submitted by the Solicitor General informing the Court that in view of the " Persistence of accused petitioner Lorenzo Jose both before this Honorable Court and respondent Court of Appeals as to his alleged existing appointment as PC Agent and/or authority to handgrenade," in the interest of justice, he was constrained to make pertinent inquiries from the PC Chief, Gen. Fidel V. Ramos who in reply sent his letter dated December 27, 1974 with enclosures, xerox copies of which are being attached to the manifestation as Annexes A, B, C, C-1 and D. 11 Annex A of the above-mentioned Manifestation of the Solicitor General reads: Solicitor General Estelito P. Mendoza Padre Faura, Manila Dear Solicitor General Mendoza: With reference to your letter of December 5, 1974, please be informed that Colonel Pedrito C. de Guzman who is now Provincial of Sorsogon Constabulary Command, confirmed that he executed an affidavit on May 4, 1974 at Sorsogon, Sorsogon stating that he appointed Mr. Lorenzo Jose of Betis, Guagua, Pampanga as PC Agent on January 31, 1968.

The incumbent Provincial Commander of Pampanga Constabulary Command also confirmed the appointment of Lorenzo Jose as PC agent during the year 1968. Attached herewith pertinent papers related to the said appointment. Sincerely yours, (Sgd.) FIDEL V. RAMOS FIDEL V. RAMOS Major General, AFP Chief of Constabulary (p. 191, rollo) Inclosure: Appointmenmt paper of subject person dtd Jan. 31, 1968 with Personal History Statement Annex B is the appointment dated January 31, 1968 of petitioner Lorenzo Jose as a PC Agent of the Pampanga Constabulary Command with Code Number P-36-68 and Code Nanie "Safari" with expiration on December 31, 1968, the pertinent portion of which We quote: This Headquarters will, from time to time, provide our firearms and such other equipment which it may deem necessary for your personal protection on the need basis which will be covered by separate written authority. (p. 192, rollo) In a Resolution of February 21, 1975, the Court resolved to set aside the denial of this petition for review, to give due course and consider the Petition as a special civil action. In another Resolution of April 4, 1975, the parties were given time to submit their respective memorandum. This is a situation where a rigid application of rules of procedure must bow to the overriding goal of courts of justice to render justice where justice is due-to secure to every individual all possible legal means to prove his innocence of a crime of which he is charged. The failure of the Court of Appeals to appreciate the merits of the situation, involving as it does the liberty of an individual, thereby closing its ear to a plea that a

miscarriage of justice be averted, constitutes a grave abuse of discretion which calls for relief from this Court. At the outset, We give due credit to the Solicitor General and his staff for upholding the time-honored principle set forth in perspicuous terms by this Court in Suarez vs. Platon, et al that a prosecuting officer, as the representative of a sovereignty whose obligation and interest in a criminal prosecution is not that it shall win a case but that justice shall be done, has the solemn responsibility to assure the public that while guilt shall not escape, innocene shall not suffer. (69 Phil. 556, 564-565, qouting Justice Sutherland of the U.S. Supreme Court in 69 U.S. Law Review, June, 1935, No. 6, p. 309) The Solicitor General now concedes that the interests of justice will best be served by remanding this case to the court of origin for a new trial. We do not question the correctness of the findings of the Court of Appeals that the evidence sought to be presented by the petitioner do not fall under the category of newlydiscovered evidence because the same — his alleged appointment as an agent of the Philippine Constabulary and a permit to possess a handgrenade — were supposed to be known to petitioner and existing at the time of trial and not discovered only thereafter. It is indeed an established rule that for a new trial to be granted on the ground of newly discovered evidence, it must be shown that (a) the evidence was discovered after trial; (b) such evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence; (c) the evidence is material, not merely cumulative, corroborative, or impeaching; and (d) it must go to the merits as ought to produce a different result if admitted. 12 However, petitioner herein does not justify his motion for a new trial on newly discovered evidence, but rather on broader grounds of substantial justice under Sec. 11, Rule 124 of the Rules of Court which provides: Power of appellate court on appeal. — Upon appeal from a judgement of the Court of First Instance, the appellate court may affirm or modify the judgment and increase or reduce the penalty imposed by the trial court, remand the case ito the Court of First Instance for new trial or retrial, or dismiss the case. Petitioner asserts, and correctly so, that the authority of respondent appellate court over an appealed case is broad and ample enough to embrace situations as the instant case where the court may grant a new trial or a retrial for reasons other than that provided in Section 13 of the same Rule, or Section 2, Rule 121 of the Rules of Court. 13While Section 13, Rule 124, and Section 2, Rule 121, provide for specific grounds for a new trial, i.e. newly discovered evidence, and errors of law or irregularities committed during the trial. Section 11, Rule 124 quoted above does not so specify, thereby leaving to the sound discretion of the court the determination, on a case to case basis, of what would constitute meritorious circumstances warranting a new trial or re-trial.

Surely, the Rules of Court were conceived and promulgate to aid and not to obstruct the proper administration of justice, to set forth guidelines in the dispensation of justice but not to bind and chain the hand that dispense justice, for otherwise, courts will be mere slaves to or robots of technical rules, shorn of judicial discretion. Thus, admittedly, courts may suspend its own rules or except a case from them for the purposes of justice 14 or, in a proper case, disregard them. 15 In this jurisdiction, in not a. few instances, 15* this Court ordered a new trial in criminal cases on grounds not mentioned in the statute, vis retraction of witness, 16 negligence or incompetency of counsel. 17 improvident plea of guilty, 18 disqualification of an attorney de oficio to represent the accused in the trial court, 19 and where a judgment was rendered on a stipulation of facts entered into by both the prosecution and the defense. 20 Characteristically, a new trial has been described as a new invention to temper the severity of a judgment or prevent the failure of justice. 21 Petitioner cites certain peculiar circumstances obtaining in the case now before Us which may be classified as exceptional enough to warrant a new trial if only to afford him an opportunity to establish his innocence of the crime charged. Thus — petitioner was facing a criminal prosecution for illegal possession of a handgrenade in the court below. He claimed to be an agent of the Philippine Constabulary with a permit to possess explosives such as the handgrenade in question. However, he found himself in a situation where he had to make a choice — reveal his Identity as an undercover agent of the Philippine Constabulary assigned to perform intelligence work on subversive activities and face possible reprisals or even liquidation at the hands of the dissidents considering that Floridablanca the site of the incident, was in the heart of "Huklandia", or ride on the hope of a possible exoneration or acquittal based on insufficiency of the evidence of the prosecution. Without revealing his Identity as an agent of the Philippine Constabulary, he claimed before the trial judge that he had a permit to possess the handgrenade and prayed for time to present the same. The permit however could not be produced because it would reveal his intelligence work activities. Came the judgment of conviction and with it the staggering impact of a five-year imprisonment. The competent authorities then realized that it was unjust for this man to go to jail for a crime he had not committed, hence, came the desired evidence concerning petitioner's appointment as a Philippine Constabulary agent and his authority to possess a handgrenade for the protection of his person, but, it was too late according to the trial court because in the meantime the accused had perfected his appeal. We find and hold that the above circumstances justify a reopening of petitioner's cas to afford him the opportunity of producing exculpating exculpating evidence. An outright acquittal from this Court which petitioner seeks as an alternative relief is not As correctly stressed by the Solicitor General, the People is to be given the chance of examining the documentary sought to be produced, and of cross-examining the persons who executed

the same, as well as the accused himself, now petitioner, on his explanation for the nonproduction of the of the evidence during the trial. PREMISES CONSIDERED, We hereby set aside the judgment of conviction of the herein petitioner, Lorenzo Jose, and remand the case to the court a quo for a new trial only for purpose of allowing said accused to present additional evidence in his defense. The trial court shall inform this Court of the final outcome of the case within a reasonable time. Without pronouncement as to costs. SO ORDERED. Teehankee (Chairman), Makasiar, Esguerra and Martin, JJ., concur.

unmeritorious cases and, worse still, a criminal suspect’s right to due process may be transgressed. EN BANC [G.R. No. L-26222. July 21, 1967.] THE PEOPLE OF THE PHILIPPINES, Petitioner, v. HONORABLE JUDGE HERNANDO PINEDA of the Court of First Instance of Lanao del Norte; and TOMAS NARBASA, TAMBAC ALINDO, and RUFINO BORRES, Respondents.

5. ID.; FISCAL’S OPINION ON WHAT CRIME IS TO BE CHARGED NORMALLY PREVAILS. — As the question of instituting a criminal charge is addressed to the sound discretion of the investigating fiscal, in a clash of views as what crime is to be charged, between the judge who did not investigate and the fiscal who did, or between the fiscal and the offended party or the defendant, those of the fiscal’s should normally prevail. DECISION

Dominador L. Padilla for Petitioner. Narbasa, Tambac Alindo & Borres for Respondents. SYLLABUS 1. CRIMINAL LAW; CRIMINAL PROCEDURE; MURDER; SEPARATE SHOTS KILLING VARIOUS VICTIMS GIVE RISE TO SEPARATE CRIMES; SEPARATE INFORMATIONS SHOULD BE FILED. — Where the facts alleged are that defendants fired guns in rapid succession from outside the house of a family, killing the father, and that defendants then forcibly entered the house, letting loose several shots, killing all the three minor children and wounding the mother, the City Fiscal correctly presented five separate informations — four for murder and one for frustrated murder. When various victims expire from separate shots, such acts constitute separate and distinct crimes. 2. ID.; COMPLEX CRIMES; SINGLE ACT, NOT SINGLE IMPULSE, IS DECISIVE. — To apply the first half of Article 48 of the Revised Penal Code, which punishes as a complex crime a single act constituting two or more grave or less grave felonies, there must be singularity of criminal act; singularity of criminal impulse is not written into the law. 3. CRIMINAL PROCEDURE; CASES OF RELATED OFFENSES MAY BE TRIED JOINTLY. — To obviate the necessity of trying five cases instead of one is a laudable purpose but cannot, by itself, justify a trial judge to order the fiscal to file only one information for multiple murder. Section 15, Rule 119, Rules of Court, confers upon the judge the power to try these cases jointly. 4. PROSECUTION OF OFFENSES; FISCAL NOT COMPELLED TO FILE A PARTICULAR CHARGE; REASONS THEREFORE. — A prosecuting attorney is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to prop up the averments thereof, or that the evidence at hand points to a different conclusion, notwithstanding the possibility of abuses on his part, because he should not be unduly compelled to work against his conviction and, in case of doubt, should be given the benefit thereof. A contrary rule may result in courts being unnecessarily swamped with

SANCHEZ, J.: Respondents Tomas Narbasa, Tambac Alindo and Rufino Borres stand indicted before the Court of First Instance of Lanao del Norte, as principals, in five (5) separate cases, four for murder and one for frustrated murder, viz:chanrob1es virtual 1aw library Criminal Case 1246 — murder of Neceforo Mendoza; Criminal Case 1247 — murder of Epifania Mendoza; Criminal Case 1248 — frustrated murder of Valeriana Bontilao de Mendoza; Criminal Case 1249 — murder of Teofilo Mendoza; and Criminal Case 1250 — murder of Marcelo Mendoza. The five informations were planted upon facts gathered by the prosecuting attorney from his investigation. Of course, the truth of these facts is yet to be tested in the crucible of a full-dress trial on the merits. The indictments are bottomed upon the following alleged pivotal facts:chanrob1es virtual 1aw library On the night of July 29, 1965, the occupants of the home of the spouses Teofilo Mendoza and Valeriana Bontilao de Mendoza in Puga-an. City of Iligan, were asleep. It was then that guns (rifle, caliber 22) and pali-untod (home-made gun) were fired in rapid succession from outside the house. Teofilo Mendoza fell dead. Thereafter, defendants below destroyed the door of the house, entered therein and let loose several shots killing Neceforo Mendoza, Epifania Mendoza and Marcelo Mendoza — all minor children of the couple — and wounding Valeriana Bontilao de Mendoza.

Two of the three defendants in the five criminal cases heretofore listed — Tomas Narbasa and Tambac Alindo — moved for a consolidation thereof "into one (1) criminal case." Their plea is that "said cases arose out of the same incident and motivated by one impulse."cralaw virtua1aw library Giving the nod to defendant’s claim, respondent Judge, in an order dated May 13, 1966, directed the City Fiscal to unity all the five criminal cases, and to file one single information in Case 1246. He also ordered that the other four cases, Nos. 1247, 1248, 1249 and 1250 "be dropped from the docket."cralaw virtua1aw library The City Fiscal balked at the foregoing order, sought reconsideration thereof, upon the ground that "more than one gun was used, more than one shot was fired and more than one victim was killed." The defense opposed. On May 31, 1966, respondent Judge denied the motion to reconsider. He took the position that the acts complained of "stemmed out of a series of continuing acts on the part of the accused, not by different and separate sets of shots, moved by one impulse and should therefore be treated as one crime to the series of shots killed more than one victim" ; and that only one information for multiple murder should be filed, to "obviate the necessity of trying five cases instead of one."cralaw virtua1aw library Primarily to annul respondent Judge’s orders of May 13, 1966 and May 31, 1966, as having been issued without or in excess of jurisdiction and/or with grave abuse of discretion, the People came to this Court on certiorari with a prayer for a writ of preliminary injunction, and for other reliefs. This Court, on July 1, 1966, issued the cease-and-desist order prayed for. The question here presented, simply is this: Should there be one information, either for the complex crime of murder and frustrated murder or for the complex crime of robbery with multiple homicide and frustrated homicide? Or, should the five indictments remain as they are? 1. The case before us calls into question the applicability of Article 48 of the Revised Penal Code, as amended, which reads:jgc:chanrobles.com.ph "ARTICLE 48. Penalty for complex crimes. — When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period."cralaw virtua1aw library Read as it should be, Article 48 provides for two classes of crimes where a single penalty is to be imposed: first, where a single act constitutes two or more grave or less grave

felonies (delito compuesto); and, second, when an offense is a necessary means for committing the other (delito complejo). 1 Best exemplified by the first of the two cases is where one shot from a gun results in the death of two or more persons. Jurisprudence teaches that, in this factual setting, the complex crime defined in the first part of Article 48 finds application. 2 A similar rule obtains where one stabbed another and the weapon pierced the latter’s body through and through and wounded another. The first died instantaneously; the second, seven days later, This Court convicted the assailant of double murder. 3 So where a person plants a bomb in an airplane and the bomb explodes with the result that a number of persons are killed, that single act again produces a complex crime. 4 A different rule governs where separate and distinct acts result in a number killed. Deeply rooted is the doctrine that when various victims expire from separate shots, such acts constitute separate and distinct crimes. 5 Thus, where the six defendants, with others (armed with pistols, carbines and also a submachine gun and Grand rifles), fired volleys into a house killing eleven and wounding several others, each of the said accused is "guilty of as many crimes of murder as there were deaths (eleven)." 6 Again, eleven persons were indicted for quadruple murder — with the use of bolos, a pistol, a barbed arrow and a piece of bamboo — of a man, his common-law wife, and their two children in cold blood. The accused were found guilty by the trial court of such offense. This Court, in reversing this ruling below, held that" [t]he four victims were not killed by a single act but by various acts committed on different occasions and by different parties" ; that such acts "may not be regarded as constituting one single crime" ; and that" [t]hey should be held as separate and distinct crimes." 7 And a third. At the commencement exercises of an elementary school, "a shot suddenly rang out" followed by a "series of shots" — from a pistol. Two persons lay dead and a third seriously wounded but who later on also died. This Court there ruled that there were "three distinct and separate murders" committed by appellant Juan Mones. 8 And finally, in People v. Gatbunton, L-2435, May 10, 1950, the spouses Mariano Sebastian and Maxima Capule — who were asleep — were killed by one burst of machinegun fire; and then, by a second burst of machinegun fire, two of the couple’s children — also asleep — were killed. The accused, Tomas Gatbunton, was found guilty by the trial court of quadruple murder. On appeal, this Court declared that "appellant must be declared guilty of four murders." 9 The present case is to be differentiated from People v. Lawas, L-7618-20, June 30, 1955. There, on a single occasion, about fifty Maranaos were killed by a group of home guards. It was held that there was only one complex crime. In that case, however, there was no conspiracy to perpetrate the killing. In the case at bar, defendants performed several acts. And the informations charge conspiracy amongst them. Needless to state, the act of one is the act of all. 10 Not material here, therefore, is the finding in Lawas that "it is impossible to ascertain the individual death caused by each and everyone" of the accused. It is to be borne in mind, at this point, that to apply the first half of Article 48, heretofore quoted,

there must be singularity of criminal act, singularity of criminal impulse is not written into the law. 11 The respondent judge reasons out in his order of May 31, 1966 that consolidation of the five cases into one would have the salutary effect of obviating the necessity of trying five cases instead of one. To save time, indeed, is laudable. Nonetheless, the statute confers upon the trial judge the power to try these cases jointly, such that the fear entertained by respondent Judge could easily be remedied. 12 Upon the facts and the law, we hold that the City Fiscal of Iligan City correctly presented the five separate informations — four for murder and one for frustrated murder. 2. We have not overlooked the suggestion in the record that, because of an affidavit of one of the witnesses, possibility exists that the real intent of the culprits was to commit robbery, and that the acts constituting murders and frustrated murder complained of were committed in pursuance thereof. If true, this would bring the case within the coverage of the second portion of Article 48, which treats as a complex crime a case where an offense is a necessary means for committing the other. A rule of presumption long familiar, however, is that official duty has been regularly performed. 13 If the Fiscal has not seen fit to give weight to said affidavit wherein it is alleged that certain personal properties (transistor radio and money) were taken away by the culprits after the shooting, we are not to jettison the prosecutor’s opinion thereon. The Fiscal could have had reasons for his act. For one thing, there is the grave problem of proving the elements of that offense — robbery. For another, the act could have been but a blind to cover up the real intent to kill. Appropriately to be noted here is that all the informations charged evident premeditation. With ponderables and imponderables, we are reluctant to hazard a guess as to the reasons for the Fiscal’s action. We are not now to say that, on this point, the Fiscal has abused his discretion. A prosecuting attorney, by the nature of his office, is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to prop up the averments thereof, or that the evidence at hand points to a different conclusion. This is not to discount the possibility of the commission of abuses on the part of the prosecutor. But we must have to recognize that a prosecuting attorney should not be unduly compelled to work against his conviction. In case of doubt, we should give him the benefit thereof. A contrary rule may result in our court being unnecessarily swamped with unmeritorious cases. Worse still, a criminal suspect’s right to due process — the sporting idea of fair play — may be transgressed. So it is, that in People v. Sope, 75 Phil. 810, 815, this Court made the pronouncement that" [i]t is very logical that the prosecuting attorney, being the one charged with the prosecution of offenses, should determine the information to be filed and cannot be controlled by the offended party. 14 3. The impact of respondent Judge’s orders is that his judgment is to be substituted for

that of the prosecutor’s on the matter of what crime is to be filed in court. The question of instituting a criminal charge is one addressed to the sound discretion of the investigating Fiscal. The information he lodges in court must have to be supported by facts brought about by an inquiry made by him. It stands to reason then to say that in a clash of views between the judge who did not investigate and the fiscal who did, or between the fiscal and the offended party or the defendant, those of the Fiscal’s should normally prevail. In this regard, he cannot ordinarily be subject to dictation. We are not to be understood as saying that criminal prosecution may not be blocked in exceptional cases. A relief in equity "may be availed of to stop a purported enforcement of a criminal law where it is necessary (a) for the orderly administration of justice; (b) to prevent the use of the strong arm of the law in an oppressive and vindictive manner; (c) to avoid multiplicity of actions; (d) to afford adequate protection to constitutional rights; and (e) in proper cases, because the statute relied upon is unconstitutional or was ‘held invalid.’" 15 Nothing in the record would as much as intimate that the present case fits into any of the situations just recited. And at this distance and in the absence of any compelling fact or circumstance, we are loathe to tag the City Fiscal of Iligan City with abuse of discretion in filing separate cases for murder and frustrated murder, instead of a single case for the complex crime of robbery with homicide and frustrated homicide under the provisions of Article 294 (1) of the Revised Penal Code or, for that matter, for multiple murder and frustrated murder. We state that, here, the Fiscal’s discretion should not be controlled. Upon the record as it stands, the writ of certiorari prayed for is hereby granted; the orders of respondent Judge of May 13, 1966 and May 31, 1966 are hereby set aside and declared null and void, and, in consequence, the writ of preliminary injunction heretofore issued is made permanent insofar as it stops enforcement of the said orders; and the respondent Judge, or whoever takes his place, is hereby directed to reinstate Criminal Cases 1246, 1247, 1248, 1249 and 1250 as they were commenced, and to take steps towards the final determination thereof. Costs against respondents Tomas Narbasa, Tambac Alindo and Rufino Borres.So ordered. Reyes, J.B.L., Makalintal, Bengzon, J.P., Zaldivar, Castro, Angeles and Fernando, JJ., concur. Concepcion, C.J. and Dizon, J., did not take part.

SECOND DIVISION

the assistance of some people. From the Municipal Building, he was brought to the Nueva Ecija General Hospital, but he died on the way that same day, April 20, 1970.

[G.R. No. L-35133. May 31, 1974.] PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. RAYMUNDO MADERA @ "Mundo", MARIANITO V. ANDRES @ "Totoy", GENEROSO ANDRES @ "Ross", Defendants-Appellants. Francisco G. Munsayac, Sr. for appellant Madera. Apolinar F. Tolentino and Jose C. Vitug for appellant Andres, Et. Al. Solicitor General Estelito P. Mendoza, Assistant Solicitor General Dominador L. Quiroz and Solicitor Sinfronio I. Ancheta for Appellee.

DECISION

FERNANDEZ, J.:

This case is now before Us on appeal of the three appellants from a decision of the Circuit Criminal Court 1 finding them guilty of the crime of murder, and sentencing them to suffer the penalty of reclusion perpetua and to jointly and severally indemnify the heirs of the victim in the amount of P12,000.00 without subsidiary imprisonment in case of insolvency, and to pay the cost proportionately. There is no question that at about 2:00 o’clock in the early morning of April 20, 1970, three men barged at the doorstep of the house of the victim Elino Bana in Sitio Baag, Barrio Bantug, Gabaldon, Nueva Ecija. The gunman, standing on the first rung of the stairs of the house, fired a volley of shots from a .45 caliber gun at Elino Bana who was then sleeping on the floor of his house near the stairs. Two gunshot wounds were inflicted on the victim but the fatal one was the one that hit him on the abdominal region. Elino Bana did not die immediately. He stood up and told his wife to call for his brother Conrado who lives not far away from their house. The victim’s wife fetched Conrado; but when they returned, the wounded man was no longer at home for he was already brought to the Municipal Building of Gabaldon. He was carried by his son-in-law, Francisco Viloria, with

We affirm the lower court’s finding that the prosecution has proven beyond reasonable doubt that appellant Raymundo Madera was the one who fired the shots at the victim Elino Bana, one of which was the fatal shot, and that appellants Marianito Andres and Generoso Andres were with Madera at the time. Juanito Bana, a son of the victim, testified that he was awakened by the gunfire and saw the appellant Raymundo Madera standing on the first step of their stairs holding a .45 caliber firearm. He also saw the appellants Marianito Andres and Generoso Andres just behind the appellant Madera, at a distance of 1 1/2 meters from the stairs. Bernarda Bana, wife of the victim, declared that she saw Raymundo Madera as the one who shot her husband with a foot-long firearm, and appellants Marianito Andres and Generoso Andres were then with Madera. In addition to the testimonies of these two witnesses, the prosecution presented the dying declaration of the victim Elino Bana. The trip from the house of Elino Bana to the Municipal Building took only about thirty minutes. On the way, they were met by policeman Ambrosio Feliciano from Gabaldon who was fetched from his house by Barrio Captain Emiliano Jornadal of Bantug to look into the shooting incident. Upon reaching the Municipal Building Patrolman Feliciano told Elino Bana that he would have to take down his written statement regarding the shooting incident, and the latter agreed. The latter was then in agony. It was then 3:00 o’clock in the morning. In said dying declaration, he was asked who shot him and the answer was: Mundo Madera and two others whom he could not recognize. The lower court was correct in refusing to give credence to the testimony of Patrolman Feliciano that while they were on their way to the Municipal Building, Elino Bana told him that he could not identify the persons who shot him. Said policeman has been an investigator in the police force since 1964. He should have asked Elino Bana while he was giving his dying declaration in the Municipal Building why he said earlier that he did not know who shot him. But Patrolman Feliciano did not do this. It must be noted that not only Patrolman Feliciano but also Francisco Viloria, a witness to the dying declaration, testified to its lawful execution. The fact that Juanito Bana and Bernarda Bana failed to reveal right away the identities of the appellants to the victim himself and to their relatives Conrado Bana and Francisco Viloria, does not militate against their credibility. There is no evidence on record that they were asked by their relatives about the identity of the appellants. Had they been asked, they would have readily revealed appellants’ identities as they did to the Chief of Police and Municipal Mayor of Gabaldon only a few hours after the fateful incident, during a formal investigation of the case in the Office of the Chief of Police when and where they

executed their respective sworn statements. In their respective written statements taken on April 20, 1970, subscribed and sworn on the same date before the Mayor of Gabaldon, Bernardo Bana and Juanito Bana categorically stated that Elino Bana was shot by Raymundo Madera @ Mundo, while Ross and Totoy Andres were downstairs. Juanito Bana was then living with his parents. He must he familiar with their house. He testified on direct examination that he slept in the balcony of their house. On cross examination, he said that he slept inside their house. That does not show any inconsistency in his testimony, because on further questioning, he said that the balcony referred to by him was inside their house. Yes, he said that after he heard the shots, he jumped to the ground through the back portion of their house. The falsity of this statement has not been shown by the defense. The pictures presented by it which apparently show that there was no such opening, can be explained by the fact that the tall grasses could obscure the back portion of the house where the kitchen door was located. Juanito Bana admitted that he was gripped with fear when he heard the burst of gunfire. But that would not prove that he failed to recognize the appellants.

astronomical data for Gabaldon, Nueva Ecija are true and correct:chanrob1es virtual 1aw library 1. that the moon rose at 4:11 P.M. on April 19, 1970 and set the following day, April 20, at 4:27 A.M.; 2. that at 2:00 A.M. on April 20, 1970, the moon was at an altitude of 34 degrees above the western horizon with bearing of South 73 degrees West; 3. and that the moon was illumined 97% at 2:00 A.M. on April 20, 1970, full moon having occurred at 00.21 A.M. on April 22, 1970. "This certification is issued upon the request of Mr. Estanislao Fernandez, Associate Justice, Supreme Court, Manila. For the Administrator:chanrob1es virtual 1aw library (Sgd) Simeon V. Inciong SIMEON V. INCIONG

"An excited person may overlook the presence of another whom he would otherwise have observed."cralaw virtua1aw library "Under some circumstance, however, excitement may whet the attention to a keen edge. . . . In some other cases, it has been observed, in effect, that the emotion incident to the impending peril may not be the kind of excitement which confuses, but that which focalizes the faculties to scrutinize the circumstance of the threatened danger in order to avoid it." 2 The appellants asserted in their briefs 3 that "the evidence on record does not show that there was a moon shining in the early morning of April 20, 1970, at Barrio Bantug, Gabaldon, Nueva Ecija;" that it was then "a moonless night;" hence, Juanito Bana and Bernarda Bana could not have recognized the appellants. This position is untenable. Why? The Court can take judicial notice of the "laws of nature" 4 and, under this rule, of the time when the moon rises or sets on a particular day. 5 This notwithstanding and for certainty, We took it unto Ourselves to get a certification from the Weather Bureau 6 which shows that the moon was bright at the time of the shooting incident. It reads:jgc:chanrobles.com.ph

Chief, Astronomical Division" It was not necessary for the prosecution to prove motive on the part of the appellants for there is no doubt as to their identities. It is true that, according to Maximo A. Obra, the forensic chemist of the NBI, appellant Raymundo Madera was found negative in a paraffin test. But Obra himself admitted that, the paraffin test having been conducted fourteen days after the incident, the test could have given a negative result even if the appellant had fired a gun fourteen days earlier, because the nitrate deposits on his hands could have been washed off by washing or could have been removed by perspiration. The defense of the appellants was alibi. But said defense cannot prevail over the positive identification of the appellants by the prosecution witnesses. The house of appellant Raymundo Madera is just about 400 meters away from that of the victim Elino Bana. We need not discuss further the defense of alibi of the appellants Marianito Andres and Generoso Andres because the Solicitor General recommended their acquittal. And We agree.

"To whom It May Concern:jgc:chanrobles.com.ph "This is to certify that, based on the computations made by this office, the following

The fact that these two appellants were standing behind appellant Madera when the latter fired shots at Elino Bana, did not make them liable for what Madera did, there being no

proof whatsoever of any conspiracy among the three appellants. They were not armed. They did nothing to help Madera. Their mere passive presence at the scene of the crime did not make them liable either as co-principals or accomplices. In one of the latest decisions of this Court, penned by Justice Felix Q. Antonio. We held:jgc:chanrobles.com.ph "It is well to recall the settled rule that conspiracy presupposes the existence of a preconceived plan or agreement and in order to establish the existence of such a circumstance, it is not enough that the persons supposedly engaged or connected with the same he present when the crime was perpetrated. There must be established a logical relationship between the commission of the crime and the supposed conspirators, evidencing a clear and more intimate connection between and among the latter, such as by their overt acts committed in pursuance of a common design. Considering the farreaching consequences, of criminal conspiracy, the same degree of proof required for establishing the crime is required to support a finding of its presence that is, it must be shown to exist as clearly and convincingly as the commission of the offense itself. "The evidence fails to meet such requirements. To hold him liable, upon the other hand, as an accomplice, it must he shown that he had knowledge of the criminal intention of the principal, which may be demonstrated by previous or simultaneous acts which contributes to the commission of the offense as aid thereto whether physical or moral. As aptly stated in People v. Tamayo: ‘It is an essential condition to the existence of complicity, not only that there should be a relation between the acts done by the principal and those attributed to the person charged as accomplice, but it is further necessary that the latter, with knowledge of the criminal intent, should cooperate with the intention of supplying material or moral aid in the execution of the crime in an efficacious way.’ . . . From our view of the evidence it has not been convincingly established that appellant cooperated in the commission of the offense, either morally, through advice, encouragement or agreement or materially through external acts indicating a manifest intent of supplying aid in the perpetration of the crime in an efficacious way. Such circumstances being absent, his mere passive presence at the scene of the crime certainly does not make him either a coprincipal or an accomplice in the commission of the offense." 7 This is good a time as any to emphasize upon those in charge of the prosecution of criminal cases that the prosecutor’s finest hour is not when he wins a case with the conviction of the accused. His finest hour is still when, overcoming the advocate’s natural obsession for victory, he stands up before the Court and pleads not for the conviction of the accused but for his acquittal. For indeed, his noble task is to prosecute only the guilty and to protect the innocent. We, therefore, commend Solicitor General Estelito P. Mendoza, Assistant Solicitor Dominador L. Quiroz and Solicitor Sinfronio I. Ancheta for having correctly recommended the acquittal of the appellants Marianito Andres and Generoso Andres. WHEREFORE, the decision appealed from is hereby affirmed with respect to the appellant

Raymundo Madera alias "Mundo", with 1/3 of the cost charged against him; and it is hereby reversed as regards appellants Marianito Andres alias "Totoy" and Generoso Andres alias "Ross", who are hereby acquitted of the crime charged with proportionate costs de oficio. Their immediate release from confinement is hereby ordered unless they are held for another legal cause. Zaldivar (Chairman), Fernando, Barredo, Antonio and Aquino, JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. Nos. L-41213-14 October 5, 1976 JORGE P. TAN, JR., CESAR TAN, LIBRADO SODE TEOFANIS BONJOC, OSMUNDO TOLENTINO and MARIANO BARTIDO, petitioners, vs. JUDGE PEDRO GALLARDO, in his capacity as Presiding Judge of Circuit Criminal Court, 13th Judicial District, Tacloban City, and PEOPLE OF THE PHILIPPINES, respondents. Pelaez, Jalandoni & Adriano for petitioner Jorge P. Tan, Jr. K.V. Faylona & Associates for petitioner Cesar Tan. Ruperto Kapunan, Jr. for petitioner Teofanis Bondoc. Amadeo Seno, Artemio Derecho & Manuel Quimbo for petitioners Librado Isode, Osmundo, Tolentino and Mariano Bartido. Solicitor General Estilito P. Mendoza, Assistant Solicitor General Alicia Simpio-Diy and Solicitor Eduardo L. Kilayko for respondents. Estanislao A. Fernandez and Dakila F. Castro & Associate as private prosecutors.

ANTONIO, J.: In this Special Civil Action for certiorari with Prohibition, petitioners seek the annulment of respondent Judge's Orders in Criminal Cases Nos. CCC—XIII-50-L-S'72 and CCC-XIII-51L-S'72, 1 to wit: (a) Order of July 21, 1975, denying petitioners' motion for respondent Judge to disqualify or to inhibit himself from hearing and acting upon their Motion for New Trial and/or Reconsideration and Supplemental Motion for New Trial; (b) Order of July 23, 1975, denying petitioners' Motion for New Trial and/or Reconsidertion and Supplemental Motion for New Trial; and (c) Order of July 25, 1975, ordering the transfer of the accused (petitioners herein) from Camp Bumpus PC headquarters, Tacloban city, to the Nationial Penitentiary, New Bilibid Prisons, Muntinlupa, Rizal. It is likewise sought, by way of prohibition, to compel respondent Judge to desist from further proceeding with the aforementioned criminal cases.

By Resolution of this Court dated August 27, 1975, the respondent Judge was required to file his answer within ten (10) days from notice, and in connection therewith, a temporary restraining order was issued to enjoin the respondent from further proceeding with the afore-mentioned criminal cases. The petition was subsequently amended to include the People of the Philippines and thereafter, on January 14, 1976, the Solicitor General, on behalf of the People of the Philippines, submitted his Comment to the petition. The Solicitor General informed this Court, thus: that they are "persuaded that there are bases for stating that the rendition of respondent Judge's decision and his resolution on the motion for new trial were not free from suspicion of bias and prejudice ... . Considering the circumstances of the instant case, the seriousness of the charges and counter-charges and the nature of the evidence on hand to support them, we feel that respondent Judge "appeared to have been heedless of the oft-reiterated admonition addressed to trial judges to avoid even the impression of the guilt or innocence of the accused being dependent on prejudice or prejudgment" and, therefore, it was the submission of said official "that the case should he remanded to the trial court for the rendition of a new decision and with instruction to receive additional evidence proferred by the accused with the right of the prosecution to present rebuttal evidence as inay be warranted" and, therefore, they interpose no objection to the remand of the aforementioned criminal cases "for the rendition of a new decision by another trial judge, after the parties shall have adduced such additional evidence as they may wish to make, under such terms and conditions as this Honorable Court may deem fit to impose. 2 On January 30, 1976, private prosecutors submitted their Comment in justification of the challenged Orders of the respondent Judge and objected to the remand of this case. On February 12, 1976, the petitioners moved to strike out the "Motion to Admit Attacked Comment" and the "Comment" of the private prosecutor on the ground that the latter has "absolutely no standing in the instant proceedings before this Honorable Court and, hence, without any personality to have any paper of his entertained by this Tribunal. The private prosecutors now contend that they are entitled to appear before this Court, to take part in the proceedings, and to adopt a position in contravention to that of the Solicitor General. The issue before Us is whether or not the private prosecutors have the right to intervene independently of the Solicitor General and to adopt a stand inconsistent with that of the latter in the present proceedings. There are important reasons which support the view that in the present proceedings, the private prosecutors cannot intervene independently of and take a position inconsistent with that of the Solicitor General. To begin with, it will be noted that the participation of the private prosecution in the instant case was delimited by this Court in its Resolution of October 1, 1975, thus: "to

collaborate with the Solicitor General in the preparation of the Answer and pleadings that may be required by this Court." To collaborate means to cooperate with and to assist the Solicitor General. It was never intended that the private prosecutors could adopt a stand independent of or in contravention of the position taken by the Solicitor General. There is no question that since a criminal offense is an outrage to the sovereignty of the State, it is but natural that the representatives of the State should direct and control the prosecution. As stressed in Suarez v. Platon, et al., 3the prosecuting officer "is the representative not of. an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." Thus, it was stressed in People v. Esquivel, et al., 4 that there is an absolute necessity for prosecuting attorneys to lay "before the court the pertinent facts at their disposal with methodical and meticulous attention, clarifying contradictions and filling up gaps and loopholes in their evidence, to the end that the court's mind may not be tortured by doubts, that the innocent may not suffer and the guilty not escape unpunished. Obvious to all, this is the prosecution's prime duty to the court, to the accused, and to the state." It is for the purpose of realizing the aforementioned objectives that the prosecution of offenses is placed under the direction, control, and responsibility of the prosecuting officer. The role of the private prosecutors, upon the other hand, is to represent the offended parts, with respect to the civil action for the recovery of the civil liability arising from the offense. 'This civil action is deemed instituted with the criminal action, unless the offended party either expressly waives the civil action or reserves to institute it separately.5 Thus, "an offended party may intervene in the proceedings, personally or by attorney, specially in case of offenses which can not be prosecuted except at the instance of the offended party. 6 The only exception to this is when the offended party waives his right to civil action or expressly reserves his right to institute it after the termination of the case, in which case he lost his right to intervene upon the theory that he is deemed to have lost his interest in its prosecution. 7 And in any event, whether an offended party intervenes in the prosecution of a criminal action, his intervention must always be subject to the direction and control of the prosecuting official. " 8 As explained in Herrero v. Diaz, supra, the "intervention of the offended party or his attorney is authorized by section 15 of Rule 106 of the Rules of Court, subject to the provisions of section 4 of the same Rule that all criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the Fiscal." (Emphasis supplied)

Therefore, although the private prosecutors may be permitted to intervene, they are not in control of the case, and their interests are subordinate to those of the People of the Philippines represented by the fiscal. 9 The right which the procedural law reserves to the injured party is that of intervening in the prosecution for the sole purpose of enforcing the civil liability for the criminal action and not of demanding punishment of the accused. 10 As explained in People v. Orais: 11 ... the position occupied by the offended party is subordinate to that of the promotor fiscal because, as promotor fiscal alone is authorized to represent the public prosecution, or the People of the Philippine Islands, in the prosecution of offenders, and to control the proceeding, and as it is discretionary with him to institute and prosecute a criminal proceeding, being at liberty to commence it or not, depending upon whether or not there is, in his opinion, sufficient evidence to establish the guilt of the accused beyond reasonable doubt, except when the case is pending in the Court of First Instance, the continuation of the offended party's intervention depends upon the continuation of the proceeding. Consequently, if the promotor fiscal desists from pressing the charge or asks the competent Court of first Instance in which the case is pending for the dismissal thereof, and said court grants the petition, the intervention of the person injured by the commission of the offense ceases by virtue of the principle that the accessory follows the principal. Consequently, as the offended party is not entitled to represent the People of the Philippine Islands in the prosecution of a public offense, or to control the proceeding once it is commenced, and as his right to intervene therein is subject to the promotor fiscal's right of control, it cannot be stated that an order of dismissal decreed upon petiton of the promotor fiscal himself deprives the offended party of his right to appeal from an order overruling a complaint or information, which right belongs exclusively to the promotor fiscal by virtue of the provisions of section 44 of General Orders, No. 58. To permit a person injured by the commission of an offense to appeal from an order dismissing a criminal case issued by a Court of First Instance upon petition of the promotor fiscal, would be tantamount to giving said offended party of the direction and control of a criminal proceeding in violation of the provisions of the above-cited section 107 of General Orders, No. 58. Consequently, where from the nature of the offense, or where the law defining and punishing the offense charged does not provide for an indemnity, the offended party may not intervene in the prosecution of the offense. 12 There is no question that the Solicitor General represents the People of the Philippines or the State in criminal proceedings pending either in the Court of Appeals or in this Court. Thus, Section 1 of Presidential Decree No. 478, "Defining the Powers and Functions of the Office of the Solicitor General", provides: SECTION 1.Function and Organization. (1) The Office of the Solicitor General shall represent the Government of the Philippines, its agencies and instrumentalities and its

officials and agents in any litigation, proceeding, investigation or matter requiring the services of a lawyer. ... The office of the Solicitor General shall constitute the law office of the Government, and such, shall discharge duties requiring the services of a lawyer. It shall have the following specific powers and functions: (a) Represent the Governemnt in the Supreme Court and the Court of Appeals in all criminal proceedings; represent the Government and its officers in the Supreme Court, the Court of Appeals, and all other courts or tribunals in all civil actions and special proceedings in which the Government or any officer thereof in his official capacity is the party. xxx xxx xxx (k) Act and represent the Republic and/or the people before any court, tribunal, body or commission in any matter, action or proceeding which in his opinion, affects the welfare of the people as the ends of justice may require. xxx xxx xxx It is evident, therefore, that since the Solicitor General alone is authorized to represent the State or the People of the Philippines the interest of the private prosecutors is subordinate to that of the State and they cannot be allowed to take a stand inconsistent with that of the Solicitor General, for that would be tantamount to giving the latter the direction and control of the criminal proceedings, contrary to the provisions of law and the settled rules on the matter. Moreover, the position taken by the Solicitor General in recommending the remand of the case to the trial court is not without any plausible justification. Thus, in support of his contention that the rendition of the decision and the resolution on the subsequent motions by the respondent Judge were not free from suspicion of bias and prejudice, the Solicitor General stated: In alleging bias and manifest partiality on the part of respondent judge, petitioners assert that: (a) Respondent judge kept improper contact with and was illegally influenced by the Larrazabals in connection with the decision of the two cases against petitioners herein; (b) In the latter part of 1973, with the trial of the Tan cases still in progress, respondent judge received, through one of his court stenographers, two bottles of whisky from Mayor Inaki Larrazabal, brother and uncle of the deceased victims Feliciano and Francisco Larrazabal; (c) On one occasion, Mayor Larrazabal had a short talk with respondent judge, after which the latter received from one of the private prosecutors a bottle of wine wrapped in a

newspaper which was "thick" and "bulky" and which allegedly contained "something else inside"; (d) Respondent judge prepared the decision in the Tan cases based on the memorandum of the prosecution which was literally copied in said decision although with some corrections; and (e) After an alleged meeting with Mayor Inaki Larrazabal, respondent judge amended his already prepared decision in the two criminal cases involved herein by changing the penalty of double life sentence for the double murder charge against the petitioners to the death penalty. The foregoing alleged irregularities are mainly supported by an affidavit executed on June 26, 1975 by Gerardo A. Makinano Jr., court stenographer of the Circuit Criminal Court, Tacloban City (Annex "E", Petition). The truth of the charges made in such affidavit are denied by respondent judge (in his answer to the instant petition dated October 11, 1975), who in turn claims that it was petitioners who tried to bribe him into acquitting them in the aforesaid criminal cases, after they were illegally furnished a copy of the draft of his decision of conviction by the same court stenographer Gerardo A. Makinano Jr. (please see Answer of respondent judge, pp. 12-13). Unlike in the cases of Mateo vs. Villaluz, 50 SCRA 191 (1973), and Castillo vs. Juan, 62 SCRA 124 (1974) relied upon mainly by herein petitioners, the facts alleged as constituting the grounds for disqualifying the respondent judge in the instant petition are disputed. Apart from the sworn statements submitted before this Court in support or in denial of the alleged bribery of respondent judge, we have been informed of evidence obtained by the National Bureau of Investigation when it cannot appropriate for us at this time, however, and we are unable to do so, to submit to this Court definite conclusions on the charges and counter-charges. An exhaustive inquiry and open hearing should perhaps precede the making of categorical conclusions. But we are persuaded that there are bases for stating that the rendition of respondent Judge's decision and his resolutions on the motions for new trial were not free from suspicion of bias and prejudice (See Martinez Gironella, 65 SCRA 245 [July 22, 1975]). Considering the circumstances of the instant case, the seriousness of the charges and counter-charges and the nature of the evidence on hand to support them, we feel that respondent Judge appeared to have been heedless to the oft-reiterated admonition addressed to trial judges to avoid even the impression of the guilt or innocence of the accused being dependent on prejudice or prejudgment (Fernando, J., Concurring opinion, Martinez Gironella, supra, at 252). ... It is undisputed that the sole purpose of courts of justice is to enforce the laws uniformly and impartially without regard to persons or their circumstances or the opinions of men. A judge, according to Justice Castro, now Chief Justice of this Court, should strive to be at

all times "wholly free, disinterested, impartial and independent. Elementary due process requires a hearing before an impartial and disinterested tribunal. A judge has both the duty of rendering a just decision and the duty, of doing it in a manner completely free from suspicion as to its fairness and as to his integrity. 13 Thus, it has always been stressed that judges should not only be impartial but should also appear impartial. For "impartiality is not a technical conception, It is a state of mind" 14 and, consequently, the "appearance of impartiality is an essential manifestation of its reality. 15 It must be obvious, therefore, that while judges should possess proficiency in law in order that they can competently construe and enforce the law, it is more important that they should act and behave in such a manner that the parties before them should have confidence in their impartiality. It appears, however, that respondent Judge is no longer in the judicial service, hence, the question as to whether or not he should be disqualified from further proceeding with the aforementioned criminal cases has already become moot. WHEREFORE, this Court grants the petition and hereby demands the case to the trial court in order that another Judge may hear anew petitioners' motion for new trial and to resolve the issue accordingly on the basis of the evidence. No Special pronouncement as to costs. Fernando, (Chairman), Barredo, Aquino, and concepcion Jr. JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION A.M. No. 1418 August 31, 1976 JOSE MISAMIN, complainant, vs. ATTORNEY MIGUEL A. SAN JUAN, respondent. RESOLUTION

FERNANDO, J.: It certainly fails to reflect credit on a captain in the Metro Manila Police Force and a member of the bar, respondent Miguel A. San Juan, to be charged with being the legal representative of certain establishments allegedly owned by Filipinos of Chinese descent and, what is worse, with coercing an employee, complainant Jose Misamin, to agree to drop the charges filed by him against his employer Tan Hua, owner of New Cesar's Bakery, for the violation of the Minimum Wage Law. There was a denial on the part of respondent. The matter was referred to the Office of the Solicitor-General for investigation, report and recommendation. Thereafter, it would seem there was a change of heart on the part of complainant. That could very well be the explanation for the non- appearance of the lawyer employed by him at the scheduled hearings. The efforts of the Solicitor General to get at the bottom of things were thus set at naught. Under the circumstances, the outcome of such referral was to be expected. For the law is rather exacting in its requirement that there be competent and adequate proof to make out a case for malpractice. Necessarily, the recommendation was one of the complaints being dismissed, This is one of those instances then where this Court is left with hardly any choice. Respondent cannot be found guilty of malpractice. Respondent, as noted in the Report of the Solicitor-General, "admits having appeared as counsel for the New Cesar's Bakery in the proceeding before the NLRC while he held office as captain in the Manila Metropolitan Police. However, he contends that the law did not prohibit him from such isolated exercise of his profession. He contends that his appearance as counsel, while holding a government position, is not among the grounds provided by the Rules of Court for the suspension or removal of attorneys. The respondent also denies having conspired with the complainant Misamin's attorney in the NLRC proceeding in order to trick the complainant into signing an admission that he had been

paid his separation pay. Likewise, the respondent denies giving illegal protection to members of the Chinese community in Sta. Cruz, Manila." 1 Then came a detailed account in such Report of the proceedings: "Pursuant to the resolution of this Honorable Court of March 21, 1975, the Solicitor General's Office set the case for investigation on July 2 and 3, 1975. The counsel for the complainant failed to appear, and the investigation was reset to August 15, 1975. At the latter date, the same counsel for complainant was absent. In both instances, the said counsel did not file written motion for postponement but merely sent the complainant to explain the reason for his absence. When the case was again called for hearing on October 16, 1975, counsel for complainant failed once more to appear. The complainant who was present explained that his lawyer was busy "preparing an affidavit in the Court of First Instance of Manila." When asked if he was willing to proceed with the hearing' in the absence of his counsel, the complainant declared, apparently without any prodding, that he wished his complaint withdrawn. He explained that he brought the present action in an outburst of anger believing that the respondent San Juan took active part in the unjust dismissal of his complaint with the NLRC. The complainant added that after reexamining his case, he believed the respondent to be without fault and a truly good person." 2 The Report of the Solicitor-General did not take into account respondent's practice of his profession notwithstanding his being a police official, as "this is not embraced in Section 27, Rule 138 of the Revised Rules of Court which provides the grounds for the suspension or removal of an attorney. The respondent's appearance at the labor proceeding notwithstanding that he was an incumbent police officer of the City of Manila may appropriately be referred to the National Police Commission and the Civil Service Commission." 3 As a matter of fact, separate complaints on this ground have been filed and are under investigation by the Office of the Mayor of Manila and the National Police Commission." As for the charges that respondent conspired with complainant's counsel to mislead complainant to admitting having' received his separation pay and for giving illegal protection to aliens, it is understandable why the Report of the Solicitor-General recommended that they be dismissed for lack of evidence. The conclusion arrived at by the Solicitor-General that the complaint cannot prosper is in accordance with the settled law. As far back as in re Tionko, 4 decided in 1922, the authoritative doctrine was set forth by Justice Malcolm in this wise: "The serious consequences of disbarment or suspension should follow only where there is a clear preponderance of evidence against the respondent. The presumption is that the attorney is innocent of the charges preferred and has performed his duty as an officer of the court in accordance with his oath." 5 The Tionko doctrine has been subsequently adhered to. 6 This resolution does not in any wise take into consideration whatever violations there might have been of the Civil Service Law in view of respondent practicing his profession while holding his position of Captain in the Metro Manila police force. That is a matter to

be decided in the administrative proceeding as noted in the recommendation of the Solicitor-General. Nonetheless, while the charges have to be dismissed, still it would not be inappropriate for respondent member of the bar to avoid all appearances of impropriety. Certainly, the fact that the suspicion could be entertained that far from living true to the concept of a public office being a public trust, he did make use, not so much of whatever legal knowledge he possessed, but the influence that laymen could assume was inherent in the office held not only to frustrate the beneficent statutory scheme that labor be justly compensated but also to be at the beck and call of what the complainant called alien interest, is a matter that should not pass unnoticed. Respondent, in his future actuations as a member of the bar.should refrain from laying himself open to such doubts and misgivings as to his fitness not only for the position occupied by him but also for membership in the bar. He is not worthy of membership in an honorable profession who does not even take care that his honor remains unsullied WHEREFORE, this administrative complaint against respondent Miguel A. San Juan is dismissed for not having been duly proved. Let a copy of this resolution be spread on his record. Barredo, Antonio, Aquino and Concepcion, Jr., JJ., concur.