Pale Case.docx

[G.R. No. 121764. September 9, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, SESBREO, accused-appellant.

vs. RAUL

H.

DECISION QUISUMBING, J.:

On appeal is the decision dated August 15, 1995, of the Regional Trial Court, of Cebu City, Branch 18, in Criminal Case No. CBU-31733, finding herein appellant, Raul H. Sesbreo, guilty of the crime of murder and sentencing him to reclusion perpetua, for the death of one Luciano Amparado. Appellant has been a practicing lawyer for over thirty (30) years. Admitted to the Bar on March 17, 1966,[1] he has achieved prominence in Cebu. The victim, Luciano Amparado, was a porter of William Lines, Inc., a shipping company also based in Cebu. On June 9, 1993, the Regional Director of the National Bureau of Investigation (NBI), Region 7, filed a complaint against Sesbreo. Taking into consideration the gravity and other circumstances of the offense, City Prosecutor Jufelinito R. Pareja created a committee of three assistant prosecutors to conduct the preliminary investigation.[2] On September 2, 1993, the committee charged Sesbreo with murder, allegedly committed as follows:

That on or about the 3 day of June 1993, at about 1:00 oclock early dawn, in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, armed with a firearm, with treachery and evident premeditation, with deliberate intent to kill, did then and there attack, assault, and shot one Luciano Amparado, hitting him at the vital parts of his body, thereby causing upon him the following physical injuries, to wit: rd

SHOCK SECONDARY TO GUNSHOT WOUND OF THE CHEST, POSTEROLATERAL ASPECT, RIGHT SIDE, as a consequence of which said Luciano Amparado died few hours thereafter. CONTRARY TO LAW.[3] No bail was recommended. On September 2, 1993, appellant was arrested.

On September 3, 1993, the very day that the case was raffled to the trial court, appellant filed a Motion To Quash Warrant of Arrest And/Or to Grant Bail. The motion was treated as urgent and immediately set for hearing the next day. But the hearing did not push through due to the fact that it was Saturday, and there was no prosecutor available. The hearing on the bail application was then reset to September 6, 1993.[4] Subsequently, the prosecution filed an Opposition to the Urgent Application for Bail. It prayed the accuseds application for bail be denied after a summary hearing; or, alternatively, the application be considered during the regular trial, after the arraignment of the accused. The prosecution presented both testimonial and documentary evidence in connection with the said Opposition. Later, the trial court denied the application for bail in a Resolution dated December 28, 1993. It reads in part:

After a careful analysis of the evidence adduced by the prosecution, the Court is of the well-considered view and so holds that the evidence against the accused is strong. As such the accused has lost his constitutional right to bail for it was determined after hearing that the evidence of guilt against him is strong. To forfeit the constitutional right to bail in capital offenses, it is enough that the evidence of guilt is strong (Pareja v. Hon. Amador E. Gomez, G.R. No. L-19733, July 31, 1962). The prosecution witnesses in the case at bar positively identified the herein accused as the author of the crime charged and that the weapon used in perpetrating the offense is the same as that owned by the accused as could be gleaned from their testimonies and more particularly that of the ballistician.[5] Before appellant could be arraigned, he dispensed with the services of his counsel. Upon arraignment, appellant, acting as his own counsel, entered a plea of not guilty to the charge in CBU No. 31733 for Murder. Trial on the merits ensued. Pursuant to Sec. 5, Rule 114 of the 1985 Rules on Criminal Procedure, the evidence presented at the bail hearings was automatically reproduced at the trial. As summarized by the trial court the prosecutions version of the case is as follows:

...Prosecution witness Christopher Yapchangco declared that while he and Luciano Amparado were walking along Almaciga St. (Exh. L-2), they saw Atty. Raul H. Sesbreo at the balcony of his house which was well-lighted (Exh. L-1). They passed by and as they walked along Almaciga St. at a distance of around 5 meters, more or less, from the gate of Atty. Raul H. Sesbreo, they heard the screeching sound of a gate coming from their back. Immediately, he turned his head towards his back and saw Atty. Raul H. Sesbreo standing in the middle of Almaciga St. in front of his gate and aiming his long firearm towards them. From where Atty. Sesbreo stood to the place of Christopher Yapchangco and Luciano Amparado were, there was nothing that could obstruct their view. Atty. Sesbreo first fired 2 shots and he continued to fire at them. Luciano Amparado was hit and asked that he be brought to the hospital. There

was no other person who shot except Atty. Sesbreo (TSN, Cabatingan, 9/27/93). Another Prosecution witness Rizaldy Rabanes testified that from his house to the house of Atty. Sesbreo, there was nothing that could obstruct the view (TSN, page 12, Arnaez, 9/29/93). At about 1:00 oclock dawn on June 3, 1993, he heard two (2) shots. He saw two (2) persons running towards his house. He then saw Atty. Raul Sesbreo standing at the middle of Almaciga Street fronting his gate and aiming his firearm and firing in succession at the two (2) persons whom he recognized as Christopher Yapchangco and Luciano Amparado. Yapchangco was running in a zigzag manner on the right side of Almaciga St. while Luciano Amparado was running in the same manner on the left side of the road. His house was hit by a bullet and his child was almost hit. Later, Christopher Yapchangco helped the wounded Luciano Amparado by carrying him on his shoulder. While Yapchangco was carrying Luciano Amparado, he saw Erwin Parune and Demeter Encina following them and helped Yapchangco by holding the feet of Luciano Amparado...[6] The principal defense of the accused is outright denial. He alleged that while he was present at the place and time of the incident in question, it was not he who shot the victim but an unidentified person.His version of the incident was summarized by the trial court as follows:

[O]n June 3, 1993 at past midnight he heard noises coming from the store of his wife. He roused from bed and peeped through the window overlooking the store. He saw that the door of his wifes store was already forced open and three persons jumped down over the fence from the store carrying bags loaded with stolen items. Outside the premises of his house by the roadside right in front of the store, he saw Luciano Amparado and Christopher Yapchangco obviously acting as look out (sic). He went down bringing along a sharp Samurai sword which was the only weapon available in his possession at that time as his .38 cal. Revolver was left in his office. He opened the gate of his house to confront the robbers and shouted at them to return the stolen goods by saying: Hoy, iuli nang inyong kinawat. Three of the robbers who turned out to be Erwin Parune, Demeter Encina and Juanito Tanghian started to run towards Lutao-lutao when Luciano Amparado told them to run away by saying SIBAT. He attempted to block the three but Luciano Amparado shouted to him, saying : Ayaw na sila babagi. Dugay na baya ming nagdumot batok nimo kay nagpasaka ka ug mga kaso batok kanamo. Then Luciano Amparado shot him twice using a .22 caliber pistol. He was not hit. The third time that Luciano squeezed the trigger, the pistol did not fire. He surmised that Luciano must have ran out of bullets or that his pistol jammed. He was not hit because he ducked down to the ground behind the trunk of a decorative palm tree. Seeing Luciano Amparado forcing open his gun, he stood up but Christopher Yapchangco shot him with an Indian Pana. He ducked down again. He saw Luciano Amparado and Christopher Yapchangco walked (sic) fast towards Lutaolutao. The companions of the two, namely, Erwin Parune, Demeter Encina, Juanito Tangihan, Boy Rabanes and others threw stones at him but failed to hit him because

he ducked down on the same spot where he ducked down when Luciano Amparado shot him with a .22 cal. pistol. At the corner of Tugas-Alamaciga Streets an unidentified person with a companion shouted: Hoy, aya ni iapil ug bato kay wal miy labot, followed by the word Ayay. The said unidentified person who was standing at the elevated portion of the gutter of corner Almaciga-Tugas Streets who was taller than Luciano Amparado, shot Luciano Amparado two times xxx hitting him on the right side below the armpit.[7] After the parties had rested their respective case, the trial court rendered the assailed judgment, the dispositive portion of which reads:

WHEREFORE, premises considered, the Court finds the accused, Raul H. Sesbreo, guilty beyond reasonable doubt, as principal, for the crime of Murder, defined and penalized by Article 248 of the Revised Penal Code, and sentences him to suffer the penalty of RECLUSION PERPETUA, with the inherent accessory penalties provided by law; to indemnify the heirs of the deceased, Luciano Amparado, in the amount of P50,000.00; and to pay the costs. SO ORDERED.[8] Before us, appellant raises now the following assignment of errors: 1. THE TRIAL COURT GROSSLY ERRED IN NOT FOLLOWING THE PROCEDURE FOR RAFFLE OF CASES PER SECTION 7, RULE 22, RULES OF COURT. 2. THE TRIAL COURT GROSSLY ERRED WHEN HON. ARRIESGADO REFUSED TO DISQUALIFY HIMSELF FROM TRYING THIS CASE WHILE, IN COMPARISON, HE INHIBITED HIMSELF IN TRYING OR HEARING THE COMPANION CASE, CBU31734. 3. THE TRIAL COURT GROSSLY ERRED IN DISREGARDING OR IGNORING EVIDENCES OF SUBSTANCE AND IMPORTANCE WHICH, IF CONSIDERED, WOULD ALTER THE RESULTS OR DECISION IN THIS CASE. 4. THE TRIAL COURT ERRED IN RELYING ON SPECULATIONS, SURMISES OR CONJECTURES IN ARRIVING AT ITS CONCLUSIONS WHICH ARE CONTRADICTED BY THE EVIDENCE ON RECORD. 5. THE TRIAL COURT ERRED IN FAILING OR REFUSING TO CONSIDER THE REASONS OF THE ACCUSED-APPELLANT THAT THE PROSECUTION FAILED TO PROVE THE GUILT OF THE ACCUSED BEYOND THE SHADOW OF A SINGLE DOUBT OR FAILED TO TRAVERSE THE CONSTITUTIONAL AND STATUTORY PRESUMPTION OF INNOCENCE OF THE ACCUSED. 6. THE TRIAL COURT ERRED IN REFUSING TO RESOLVE THE MOTION TO STRIKE OUT THE TESTIMONY OF MONICA AMPARADO WHICH WAS NOT SUBJECTED TO CROSS-EXAMINATION. 7. THE TRIAL COURT ERRED IN REFUSING TO DISQUALIFY THE PRIVATE PROSECUTORS FROM APPEARING IN THIS CASE DUE TO THE NON-PAYMENT

OF FILING FEES FOR CIVIL CLAIMS FOR DAMAGES AND SINCE MONICA AMPARADO DID NOT ENGAGE THE LEGAL SERVICES OF THE PRIVATE PROSECUTORS. 8. THE TRIAL COURT ERRED IN ADMITTING PROSECUTION EVIDENCE NOT PROPERLY IDENTIFIED IN OPEN COURT AND NOT SUBJECTED TO CROSSEXAMINATION. 9. THE TRIAL COURT GROSSLY ERRED IN NOT APPLYING PAR. 1, SECTION 12, BILL OF RIGHTS, 1987 CONSTITUTION, IN RELATION WITH PAR. 2, SECTION 14, ARTICLE III, CONSTITUTION (ON RIGHT TO BE HEARD BY HIMSELF AND COUNSEL), PAR. C, SECTION 1, RULE 115, RULES ON CRIMINAL PROCEDURE (RIGHT TO DEFEND IN PERSON AND BY COUNSEL AT EVERY STAGE OF THE PROCEEDINGS FROM THE ARRAIGNMENT TO THE PROMULGATION OF THE JUDGMENT); AND SECTION 7, RULE 116, RULES ON CRIMINAL PROCEDURE. 10. ASSUMING WITHOUT ADMITTING THAT THE PENAL CONVICTION OF THE ACCUSED IS NOT A REVERSIBLE ERROR, STILL, THE TRIAL COURT GROSSLY ERRED IN NOT TAKING INTO ACCOUNT SECTION 19(1), ARTICLE III, CONSTITUTION ABOLISHING THE DEATH PENALTY and IN NOT APPLYING THE JURISPRUDENCE IN PEOPLE vs. ALCANTARA, 163 SCRA 788-789; PEOPLE vs. NOLASCO, 163 SCRA 629-630 AND PEOPLE vs. MABUHAY, 185 SCRA 681. 11. THE TRIAL COURT GROSSLY ERRED IN CONCLUDING THAT TREACHERY AND EVIDENT PREMEDITATION WERE PROVEN BY THE PROSECUTION EVEN IF THERE IS NO EVIDENCE TO SUPPORT SUCH CONCLUSION OR THAT THE SAME WAS BASED ON SPECULATIONS, SURMISES AND CONJECTURES OR ASSUMPTIONS WITHOUT EVIDENTIARY SUPPORT.

In addition, appellant also submits the following for consideration of the Court: 12. THE TRIAL COURT ERRED IN RELYING ON THE TESTIMONIES OF THE PROSECUTION WITNESSES DESPITE PROOF THAT THEY WERE ACTUATED BY ULTERIOR AND IMPROPER MOTIVES OR THAT THEIR TESTIMONIES ARE NOT CREDIBLE FOR BEING CONTRARY TO HUMAN EXPERIENCE AND KNOWLEDGE. 13. THE TRIAL COURT ERRED IN DENYING THE ACCUSED-APPELLANT (HIS RIGHT) TO SPEEDY TRIAL AND SPEEDY DISPOSITION OF HIS CASE. 14. THE TRIAL COURT ERRED IN DISMISSING THE CONTEMPT CHARGES FILED BY APPELLANT AGAINST RADIO ANNOUNCERS WHO WERE TRYING TO INFLUENCE THE TRIAL COURT INTO CONVICTING THE APPELLANT.[9]

Appellant submits that Assigned Errors 3, 4, 5, 8, 11, and 12 may be consolidated and discussed together because the issues all boil down to whether or not the prosecution has sufficiently overcome the constitutional presumption of innocence of the accused.[10] Considering these assigned errors, the pertinent issues could be summed up as follows: 1. Were appellants fundamental rights, including his right to due process of law, violated in this case because: (a) there was no speedy trial and disposition of the case? (b) the trial judge erred in refusing to disqualify himself from hearing the case?

(c) the trial court erred in refusing to re-raffle the case? (d) the trial court erred in refusing to disqualify the private prosecutors? (e) there was publicity prejudicial to accused? 2. Was the right to counsel of the accused violated? 3. Is the evidence presented by the prosecution sufficient to overcome the presumption of innocence of the accused, and to prove him guilty beyond reasonable doubt? 4. Is the penalty imposed on appellant correct?

We shall now discuss these issues in seriatim. Article III, Section 14 of the Constitution provides:

(1) No person shall be held to answer for a criminal offense without due process of law; (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. Appellant anchors, firstly, his claim that due process was violated because his right to speedy trial was violated. However, the records of this case reveal that bail hearings started on September 27, 1993, and terminated on November 8, 1993. He was arraigned on January 11, 1994. The prosecution presented its first post-bail hearings witness on the same day. The defense presented its first witness on June 7, 1994. The decision of the lower court was promulgated on August 15, 1995. With this chronology, in our view, no undue delay could be imputed, much less persuasively shown, against appellee and the trial court. Appellant also claims the trial court ignored various Supreme Court Circulars ordering judges to decide cases within ninety days from the inception of trial.[11] This is not quite accurate. The ninety-day period applies only after the case is submitted for decision, not from the start of the trial.[12] If the trial appeared lengthy, it was largely due to the number of witnesses presented, 13 for the prosecution and 15 for the defense. Appellant himself took the witness stand a total of 76 times, including 21 times on rebuttal alone. As observed by the trial court:

...The manner of presenting his defense, undertaken by himself alone without the proper advice of a defense counsel, had contributed largely to the prolonged trial of the case.[13]

Whether intentional or not, appellants conduct of his own trial contributed to timeconsuming tussles in the lower court. How could the accused complain of delays, where he himself caused them?[14] Appellant also alleges that his right to a speedy disposition of his case was violated. He claims that the trial judge gave preference to a civil case, as against his right as a detention prisoner to have his case given preference pursuant to R.A. 6033.[15] This is unfounded, to say the least. The hearing of the civil case ahead of his case happened only once.[16] Appellant likewise claims the trial judge was partial, biased, and prejudiced because he refused to disqualify himself from hearing this case while he inhibited himself from trying its companion case. But as held in Velez v. Court of Appeals, 34 SCRA 109 (1970), mere imputation of partiality or bias is not a ground for inhibition. The grounds for disqualification or inhibition of judges provided for in Section 1, Rule 137, Rules of Court are as follows:

SECTION 1. Disqualification of judges No judge or judicial officer shall sit in any case in which he or his wife or child, is pecuniarily interested as heir, legatee, creditor, or otherwise or in which he is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the rules of the civil law, or in which he has been executor, administrator, guardian, trustee or counsel, or in which he has presided in any inferior court when his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the record. A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above. None of the grounds above was cited to support the trial judges disqualification. None was applicable to him. Though the Rule provides other just and valid grounds on which a judge may disqualify himself, they are addressed to his sound discretion, and there was no abuse of said discretion. We can only conclude that the trial judge, contrary to appellants claim, did not err in refusing to inhibit himself in the case at bar. That the trial judge opted to believe the prosecutions evidence rather than that of the defense is not a sign of bias.[17] Appellants assertion that the trial court erred in refusing to agree to re-raffle the case is, in our view, baseless. There is no showing that appellant raised the issue of lack of notice of raffle at the earliest opportunity. The appellant first filed his Motion for Re-Raffle of Case or Transfer of Case to Another Branch of the RTC of Cebu City only on January 25, 1994.[18] It was filed after appellant was already arraigned, and after the prosecution had presented its first witness. In fact, the trial court already issued a Resolution denying his application for bail. [19] Appellant had willingly and actively participated in these proceedings before the trial court.[20] By actively participating thereon, appellant is now deemed estopped from complaining that the proceedings were technically defective for want of a notice of the raffle of his case. To say the least, appellants claim comes too late to be of any merit.

On the matter of disqualifying private prosecutors, it must be stressed that the interest of the private complainant is limited to the civil aspect of the case.[21] Even if the trial court had allowed the presence of private prosecutors, it did not affect the criminal aspect of the case. The records clearly show that the public prosecutor remained in full control during the trial. As provided in Section 5, Rule 110, Rules of Court, the case was prosecuted under the direction and control of the public prosecutor. Nothing on record shows that he lost control and direction of the prosecution of the case just because of the presence of private prosecutors. Further, the appellant alleges that certain members of media with whom he had a longstanding battle, were pressuring the trial court to convict the accused.[22] He states that these media men attended the promulgation of the judgment to insure the success and satisfaction of their desire for revenge against the appellant,[23] and that adverse publicity influenced the trial court into convicting the appellant.[24] He now faults the trial court for refusing to declare these journalists in contempt of court. However, the courts refusal to find said media practitioners in contempt is not a reversible error that would warrant the acquittal of the accused. It was entirely within the discretion of the trial court to determine whether or not the media personnel concerned were guilty of contempt. Besides, a thorough review of the records yields no sufficient basis to show that pervasive publicity unduly influenced the courts judgment. Before we could conclude that appellant was prejudiced by hostile media, he must first show substantial proof, not merely cast suspicions. There must be a showing that adverse publicity indeed influenced the courts decision, as held in Webb v. De Leon, 247 SCRA 653 (1995) and People v. Teehankee, 249 SCRA 54 (1995).

[T]o warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity.[25] Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to seal the minds of the members of the bench from pre-trial and other off-court publicity of sensational criminal cases. The state of the art of our communication system brings news as they happen straight to our breakfast tables and right to our bedrooms. These news form part of our everyday menu of the facts and fictions of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch with the world. We have not installed the jury system whose members are overly protected from publicity lest they lose their impartiality. x x x Our judges are learned in the law and trained to disregard off-court evidence and on-camera performances of parties to a litigation. Their mere exposure to publications and publicity stunts does not per se infect their impartiality. At best appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage of publicity that characterized the investigation and trial of the

case. In Martelino, et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, the records do not show that the trial judge developed actual bias against appellant as a consequence of the extensive media coverage of the pre-trial and trial of his case. The totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity which is incapable of change even by evidence presented during the trial. Appellant has the burden to prove this actual bias and he has not discharged the burden. (Italics in the original)[26] Absent a persuasive showing by the appellant that publicity prejudicial to his case was responsible for his conviction by the trial judge, we cannot accept his bare claim that his conviction ought to be reversed on that ground. Relatedly, on the second issue, it must be pointed out that appellant has been a practicing lawyer of long standing. Initially, he was assisted by counsel of his choice in this case. But he later terminated the services of his counsel due to disagreements. He then took full control of his defense. As manifested in his motion regarding the Order dated December 28, 1993 (Bail Application), he asked the trial court to:

3. PLEASE NOTE that the undersigned is taking COMPLETE CONTROL in his defense in the two (2) cases (CBU-31373 and CBU-31734) since he now realizes that it is to his best interest and advantage that does so under right under par. c, Sec. 1, Rule 115, Rules on Criminal Procedure and his lawyers are being subjected to pressure.[27] Before his arraignment on January 11, 1994, the trial court asked clarification from appellant, to wit: ATTY. SESBREO: Appearing as counsel in my own behalf COURT: Who are (sic) representing you in these cases? ATTY. SESBREO: Your Honor please, I am taking full control of the proceedings, Your Honor particularly the presentation of my own testimony but with respect with other witnesses that may be presented by my lawyer. I fully understand the contents, the lateral import and allegations in the information. I would like to make it of record that in entering a plea of not guilty to such information I would make it clear that I am not waiving my right to present my rebuttal evidence in the application for bail which it is under Section 5 of Rule 114 which supposed to be a separate hearing from the formal trial on the merits. That I have not agreed to have a joint hearing for the application for

bail and of the formal trial on the merits. I have not also waive (sic) my right to question to issuance of the warrant of arrest of Section 2 of the Bill of Rights. COURT: But we have to arraign you because under the 1985 Rules on Criminal Procedure as amended there is no such thing as waiver of the arraignment. Necessarily, under the rules or whatever category is that crime charged the accused must be arraigned even for Physical Injuries. So, under the set-up we have to conduct an arraignment in both cases. ATTY. SESBREO: That is the prerogative of the Court. My only statement to be made it (sic) of record that I have never waive (sic) those right (sic) which I just stated. COURT: Well, waiver or no waiver, the law clearly and explicitly provides that only waiver (sic) which are not contrary to law, morals, and public policy are considered or countenance (sic) in Court. All waivers which will run counter to public policy, morals and the law, they are all considered waivers which are null and void. All those things will be taken into considerations (sic). Statutes as well as jurisprudence, the Court is taking care of all those things. Arraigned (sic) the accused. But before going into this, are you really sure with the magnitude of the charged against you will never solicit the assistance of counsel as you did before? ATTY. SESBREO: I have sought the assistance of counsel. I know the saying that a lawyer who acts as his own counsel is a fool, Your Honor. I would be a big fool if I will allow myself to be represented (by) a lawyer who maybe (sic) pressured. COURT: I have already stated in my order that insofar as this Presiding Judge is concerned there was no observation of such pressure within the four (4) walls of this Court. I dont know outside the four (4) walls of this Court. But I would like to tell all and sundry that insofar as the alleged pressure is concerned, the Court noted no such pressure within the four (4) corners of this room. ATTY. SESBREO: The pressure that I made on myself and this counsel will be testified on the witness-stand (sic) when my turn comes, underoath (sic). COURT: To repeat, you do not want the assistance of any other counsel even possibly with (sic) the assistance of the PAO lawyer? ATTY. SESBREO: There is no need, Your Honor because under paragraph 6, Section 1, Rule 150 the accused can act as his own counsel and at his option can seek the assistance of another lawyer. I fully understant (sic) the import of the information. COURT: So you have chosen despite the proddings of this Court that you have to solicit the assistance of counsel as you did before. That you are waiving tjos (sic) right to be assisted by counsel.

ATTY. SESBREO: That is correct. COURT: Let us arraigned (sic) the accused. Let it be placed on record (that) despite the proddings of this Court, the accused wanted to act as counsel for himself. COURT: (to accused) Does this imply that even the new counsel you have included in your pleadings as Atty. Crisologo R. Monteclar he is never your lawyer? ATTY. SESBREO: He is my lawyer but as I said I am taking full control of this (sic) proceedings. I will take legal consultation with my lawyers if the need arises. COURT: Are we made to understand that henceforth, there shall be no more notices to be sent to these lawyers because you are now taking full control of these cases against you? ATTY. SESBREO: Notice to me will be notice to them. I (will) just request, Your Honor additional notices when necessary to the additional lawyers. I think that is the legal procedure on the matter. COURT: You may now arraign the accused in both cases.[28]

Despite admonitions of the trial court, he persisted in his decision to try his own case. The record shows appellant, acting as his own counsel, filed the notice of appeal. To allege now that his right to be assisted by counsel was violated is to bend the truth too far. In Gamboa v. Cruz,[29] we held that the substantial and constitutional right of the accused to counsel is not violated where he was represented by a member of the Bar. Appellant chose to be represented in this case by a prominent and competent member of the Bar, namely himself, even if there were other available counsel like Atty. Crisologo Monteclar.Appellant is now estopped from claiming that the trial court violated his right to be represented by counsel of his own choice. Note that he also brushed aside the courts offer of assistance by another counsel, a PAO lawyer. He declared there was no need therefor. The essential requirements of due process in this jurisdiction are well established, viz: (1) There must be a court or tribunal clothed with judicial power to hear and determine the matter before it; (2) Jurisdiction must be lawfully acquired over the person of the defendant or property which is the subject of the proceeding; (3) The defendant must be given an opportunity to be heard; and (4) Judgment must be rendered upon lawful hearing.[30]

In People v. Castillo, et al. 76 Phil. 72, 87, we ruled that if an accused has been heard in a court of competent jurisdiction, and proceeded against under the orderly process of law, and only

punished after inquiry and investigation, upon notice to him, with opportunity to be heard, and a judgment awarded within the authority of the constitutional law, then he has had a due process. Applying the aforementioned test to the circumstances of the instant case, the Court finds no breach of appellants fundamental rights, including his right to due process and to counsel, which would justify reversal of the assailed decision. On the crucial third issue, we must inquire now whether the prosecution has overcome the presumption of innocence in favor of the accused. Otherwise stated, is the evidence presented by the prosecution sufficient to prove his guilt beyond reasonable doubt? The victims companion, Christopher Yapchangco, as witness for the prosecution, testified under oath as follows: ATTY. DURANO: Now while you were walking along Almaciga Street with Luciano Amparado, can you tell us what happened? A: While we were already at a distance of five (5) meters, more or less, from the gate of the house of Raul Sesbreno we heard screeching sound of the gate of Atty. Sesbreno Q: From where you were walking along that Almaciga Street heading towards Lutao-Lutao from what side did you hear the screeching sound of the gate? A: At our back. Q: When you heard that screeching sound of the gate on what side did you turn around while you were along Almaciga Street? INTERPRETER: Witness indicating by turning his head towards the back. ATTY. DURANO: When you turned your head towards the gate, would you kindly tell the Honorable Court what happened, if anything? A: So, we saw Atty. Sesbreno aiming his long firearm towards us. Q: When you saw Atty. Raul Sesbreno aiming his rifle towards you, as far as you can recall how far were you and Luciano Amparado to Raul Sesbreno? A: Five (5) meters, more or less. Q: From the place where you saw Atty. Sesbreno aiming his rifle was there anything between you and Atty. Sesbreno that could obstruct your view? A: No, sir, there was none.[31]

xxx Q: When you saw Atty. Sesbreno aiming his rifle at you, what happened, if any, please tell the Honorable Court? A: Simultaneously two (2) shots being fired we ran immediately.[32]

xxx

Q: While you were running in a zigzag manner and Amparado also running in a zigzag manner, will you please tell the Honorable Court, what happened next? A: I saw Luciano Amparado running in a staggard (sic) manner.[33] Q: While you were running in a zigzag manner at that very point in time you saw Luciano Amparado staggering where was Atty. Sesbreno in relation to you? A: He was at our back. Q: Would you kindly tell the Honorable Court what he was doing while he was at your back? A: He was still standing aiming his rifle towards us.[34]

xxx Q: What happened while you were running in a zigzag manner and Luciano Amparado staggering towards (the) a corner? A: We were even shot by Atty. Sesbreno with two (2) firing gun (sic). Q: After that what happened? A: And I aided Luciano Amparado who was at that time running in a staggered (sic) manner.[35]

xxx Q: While you helped Luciano Amparado and in fact you noticed the part of his back was hit, what happened after that? A: Luciano Amparado told me by saying he was hit and please bring me to the hospital. Q: In effect, what did you do? A: And I heard a continuous firing of the gun. Q: From what direction in relation to you from where you were did you hear continuous firing of the gun? A: At our back.[36]

While appellant argues that Yapchangco admitted that he never saw who fired the gun shots, because he was busy running and did not look back, on record is Yapchangcos declaration that there was no person other than appellant who fired a firearm. As held in People v. Salveron,[37] if an eyewitness saw the accused with a rifle, seconds after the gunshot and after the victim fell to the ground, the reasonable conclusion thereon is that the appellant killed the victim. Another eyewitness, Rizaldy Rabanes, also identified appellant as the one who fired at Amparado and Yapchangco: Q: Going back to the question, during the time you were attending your 6-month baby (who was) teething, was there anything unusual that happened? A: Yes, there was. Q: Could you kindly please tell the Honorable Court? A: At that time, I heard two (2) shots. So, I stood up and I peeped through my window and there was simultaneous firing of a gun. So, I immediately opened my window. Then, I saw two (2) persons

running towards my house and also then I saw Atty. Raul Sesbreno aiming a firearm and fired (sic) it rapidly, and he did not even know that my house was hit and my house was shaken.[38]

xxx Q: Who were those two (2) people running towards your house? A: Yapchangco and Luciano Amparado.[39]

Further, prosecution witness Edwin Parune testified that he and his companion, Demeter Encina, saw Amparado totter, after being shot, towards the bougainvillea plant at the side of Almaciga Street.There Amparado eventually fell on the ground, face upward. Parune also declared he and Encina saw appellant in the middle of the street, carrying a long firearm while going towards the gate of his house.They saw Yapchangco approach the fallen Amparado and lift him. Parune and Encina then helped Yapchangco bring Amparado to the hospital where he died.[40] With such wealth of details, we cannot fault the trial court for giving credence to the testimony of the prosecutions witnesses. Moreover, we must concede that generally, the trial judge is in a better position to decide on questions of credibility of witnesses and materiality of the evidence presented.[41] Findings of the trial judge who had the fullest opportunity to observe the demeanor of the witnesses and to assess their credibility are entitled to the highest degree of respect.[42] Factual findings of the trial court, if adequately supported by the records of the case, will generally not be disturbed by the appellate courts on appeal.[43] We see no reason now to depart from this rule. The voluminous records of this case support the factual findings of the trial court. On these findings we must now rely, unless it could be shown that the trial judge overlooked or ignored material facts on record that would contradict these findings, or change the resulting conclusions. The defense failed, in our view, to refute the positive identification made by the prosecution witnesses who tagged the appellant as the one who shot the victim. These eyewitnesses declarations are positive testimonial evidence. The appellants denial that he was the gunman is negative testimony.[44] The positive, forthright declarations of eyewitnesses certainly outweigh the negative, self-serving denial of the accused.[45] While appellant claims somebody else shot the victim dead, appellant did not, as he could not, identify this purported gunman up to now. Surely he could not expect us to believe his claim of a gunslinger emerging from the shadows to slay the victim, without more credible proof thereon. Appellant harps on what he perceives to be inconsistencies of the witnesses testimony. However, they are inconsistencies on negligible details that do not destroy the credibility and veracity of the testimony offered. No improper motive appears to vitiate the sworn statement of the witnesses. Variations in the declarations of witnesses respecting incidental matters do not detract from the weight of testimony in its entirety as to material and important facts.[46] Nor do minor inconsistencies preclude the positive identification of the accused.[47] Minor inconsistencies in the testimonies of witnesses strengthen, rather than weaken, the credibility of the witnesses, as it clearly shows that the testimonies offered are neither rehearsed nor coached.[48] But in regard to the lethal weapon used in the commission of the offense, there is no justifiable reason, in our view, for doubt or dispute. The firearm used was a .22 caliber rifle, registered in the name of appellant.

Noteworthy is the testimony of the NBI ballistician on record. He found that the shell marked exhibit ES-1 and the test shell marked TS-2 possessed sufficient identical markings to show both were fired from one and the same firearm;[49] that the size, shape, and location of the firing pin marks on the two shells were the same;[50] and that evidence shell ES-1 and another test shell marked TS-3 were fired from one and the same firearm.[51] The prosecution amply showed that the test shells TS-2 and TS-3 were test-fired from a .22 caliber rifle owned by appellant. He himself had submitted both the rifle and test bullets for re-registration during a reregistration of firearms campaign conducted by the police, with test-firing done on March 22, 1990.[52] The ballisticians testimony refutes appellants claim that there was no conclusive finding on the firearm used in the shooting of the victim, since there were no sufficient congruent striations on the evidence and test bullets. Appellant argues that there were no sufficient markings which could lead to a positive conclusion that the evidence and test bullets were fired from one and the same firearm.[53]This argument, however, is rebutted by the ballistician, who pointed out that the slug was copper-coated and this coating material could be easily removed.[54] Even a mere scratch of a fingernail could remove the coating, and make comparison of striations for identification purposes difficult, if not impossible. Appellant, however, could not deny the ballisticians conclusive findings as to the similarity of resultant markings in the evidence and test shells submitted to the trial court. Thus, both testimonial and real evidence presented by the prosecution lead us to the firm conclusion that the presumption of appellants innocence has been overcome and his guilt established beyond reasonable doubt. He is criminally responsible for the killing of the victim, Luciano Amparado. However, we now come to the next inquiry in regard to the third issue. Was the killing murder as found by the trial court, or homicide as averred by the Solicitor General? According to him, the trial court erred in finding the appellant guilty of murder, because the prosecution failed to prove the qualifying circumstances of evident premeditation and treachery. On these matters, we find both the appellants and the Solicitor Generals submission meritorious. Circumstances specifying or qualifying an offense, or aggravating the penalty therefor must be proved as conclusively as the act itself.[55] Evident premeditation is appreciated where the execution of a criminal act is preceded by cool thought and reflection upon the resolution to carry out the criminal intent.[56] The requisites of evident premeditation are: 1. The time when the accused determined to commit the crime. 2. An act manifestly indicating that the accused has clung to his determination. 3. A sufficient lapse of time between such determination and execution to allow him to reflect upon the circumstances of his act.[57]

Here, these requisites were not met. There was no evidence presented as to the date and time when appellant planned to kill the victim and his companion, Yapchangco. Even if the time when the appellant had planned such killing could be determined, there is no showing that from such time up to the time when the victim and Yapchangco passed appellants house in the wee hours of the morning of June 3, 1993, sufficient time had elapsed to allow appellant to reflect on his plan and persist in carrying it out. We cannot, based on the prosecutions evidence, sustain the

finding of evident premeditation absent a conclusive showing of the constitutive elements of this vital circumstance qualifying the offense of murder. Neither can we sustain the findings of the trial court with respect to the presence of treachery. Treachery is present when the offender employs means, methods, or forms which tend to directly and specially insure the execution of the crime, without risk to himself arising from the defense which the offended party might make.[58] The essence of treachery is the sudden and unexpected attack by the aggressor on an unsuspecting victim, depriving the latter of any real chance to defend himself, thereby, ensuring its commission without risk to the aggressor, and without the slightest provocation on the part of the victim.[59] To be appreciated, treachery requires proof of the following:

1. the employment of means of execution which gives the person assaulted no opportunity to defend himself or retaliate; and 2. that said means of execution were deliberately or consciously adopted by the assailant.[60] In this case, the prosecution failed to prove that the means of attack used by the appellant were deliberately adopted by him to kill the victim. Yapchangcos testimony shows that he and the victim just happened to pass by the house of appellant at a time when the latter was in his balcony. There is no showing that appellant knew or expected that the victim and Yapchangco would pass by his house at that time. In the absence of the qualifying circumstances of evident premeditation and treachery, the crime committed is not murder but only homicide. We now come to the last issue concerning penalty. Reclusion perpetua is appropriately imposed if the conviction is for murder, but not for homicide. Under Article 249 of the Revised Penal Code, the applicable penalty for homicide is only reclusion temporal. As there are neither aggravating nor mitigating circumstances found by the trial court or shown after a review of the records, the penalty in this case shall be fixed in its medium period of reclusion temporal, which ranges from a minimum of 14 years, 8 months and 1 day to a maximum of 17 years and 4 months. Further, applying the Indeterminate Sentence Law, the imposable penalty shall be within the range of prision mayor as a minimum to reclusion temporal in its medium period as the maximum. The range of prision mayor is from 6 years and 1 day to 12 years. The span of reclusion temporal, medium, is from 14 years, 8 months, and 1 day to 17 years and 4 months. WHEREFORE, the assailed decision of the Regional Trial Court of Cebu City, Branch 18, in Criminal Case No. CBU-31733 is hereby MODIFIED. Appellant Raul H. Sesbreo is hereby found GUILTY of HOMICIDE and hereby sentenced to suffer a prison term of 9 years and 1 day of prision mayor, as a minimum, to 16 years and 4 months of reclusion temporal, as a maximum, with accessory penalties provided by law, to indemnify the heirs of the deceased Luciano Amparado in the amount of P50,000.00, and to pay the costs. SO ORDERED.

Bellosillo, (Chairman), Mendoza, and Buena, JJ., concur.

SPOUSES HENRY A. CONCEPCION AND BLESILDA S. CONCEPCION, Complainants, v. ATTY. ELMER A. DELA ROSA, Respondent. DECISION PERLAS-BERNABE, J.: This is an administrative case that stemmed from a Verified Complaint1 filed by complainants Spouses Henry A. Concepcion (Henry) and Blesilda S. Concepcion (Blesilda; collectively complainants) against respondent Atty. Elmer A. dela Rosa (respondent), charging him with gross misconduct for violating, among others, Rule 16.04 of the Code of Professional Responsibility (CPR). The Facts In their Verified Complaint, complainants alleged that from 19972 until August 2008,3 respondent served as their retained lawyer and counsel. In this capacity, respondent handled many of their cases and was consulted on various legal matters, among others, the prospect of opening a pawnshop business towards the end of 2005. Said business, however, failed to materialize.4 chanRoble svirtual Lawlib ra ry

Aware of the fact that complainants had money intact from their failed business venture, respondent, on March 23, 2006, called Henry to borrow the amount of P2,500,000.00, which he promised to return, with interest, five (5) days thereafter. Henry consulted his wife, Blesilda, who, believing that respondent would be soon returning the money, agreed to lend the aforesaid sum to respondent. She thereby issued three (3) EastWest Bank checks5 in respondent’s name:6 chanRoblesvi rtua lLawl ib rary

Check No. 0000561925 0000561926 0000561927 Total:

Date 03-23-06 03-23-06 03-23-06

Amount Payee P750,000.00 Elmer dela Rosa P850,000.00 Elmer dela Rosa P900,000.00 Elmer dela Rosa P2,500,000.00

Upon receiving the checks, respondent signed a piece of paper containing: (a) photocopies of the checks; and (b) an acknowledgment that he received the originals of the checks and that he agreed to return the P2,500,000.00, plus monthly interest of five percent (5%), within five (5) days.7 In the afternoon of March 23, 2006, the foregoing checks were personally encashed by respondent.8 chanRob lesvi rtual Lawli bra ry

On March 28, 2006, or the day respondent promised to return the money, he failed to pay complainants. Thus, in April 2006, complainants began demanding payment but respondent merely made repeated promises to pay soon. On July 7, 2008, Blesilda sent a demand letter9 to respondent, which the latter did not heed.10 On August 4, 2008, complainants, through their new counsel, Atty. Kathryn Jessica dela Serna, sent another demand letter11 to respondent.12 In his Reply,13 the latter denied borrowing any money from the complainants. Instead, respondent claimed that a certain Jean Charles Nault (Nault), one of his other clients, was the real debtor. Complainants brought the matter to the Office of the Lupong Tagapamayapa in Barangay Balulang, Cagayan de Oro City. The parties, however, failed to reach a settlement.14 chanRob lesvi rtua lLawl ibra ry

On January 11, 2010, the IBP-Misamis Oriental Chapter received complainants’ letter-complaint15charging respondent with violation of Rule 16.04 of the CPR. The rule prohibits lawyers from borrowing money from clients unless the latter’s interests are fully protected by the nature of the case or by independent advice.16 chanRoble svi rtual Lawli bra ry

In his Comment,17 respondent denied borrowing P2,500,000.00 from complainants, insisting that Nault was the real debtor.18 He also claimed that complainants had been attempting to collect from Nault and that he was engaged for that specific purpose.19 chanRob lesvi rtual Lawli bra ry

In their letter-reply,20 complainants maintained that they extended the loan to respondent alone, as evidenced by the checks issued in the latter’s name. They categorically denied knowing Nault and pointed out that it defies common sense for them to extend an unsecured loan in the amount of P2,500,000.00 to a person they do not even know. Complainants also submitted a copy of the Answer to Third Party Complaint21 which Nault filed as third-party defendant in a related collection case instituted by the complainants against respondent.22 In said pleading, Nault explicitly denied knowing complainants and alleged that it was respondent who incurred the subject loan from them.23 chanRoblesvi rtua lLawl ibra ry

On November 23, 2010, the IBP-Misamis Oriental Chapter endorsed the letter-complaint to the IBPCommission on Bar Discipline (CBD),24 which was later docketed as CBD Case No. 11-2883.25 In the course of the proceedings, respondent failed to appear during the scheduled mandatory conferences.26Hence, the same were terminated and the parties were directed to submit their respective position papers.27 Respondent, however, did not submit any. cralawred

The IBP Report and Recommendation On April 19, 2013, the IBP Investigating Commissioner, Jose I. de La Rama, Jr. (Investigating Commissioner), issued his Report28 finding respondent guilty of violating: (a) Rule 16.04 of the CPR which provides that a lawyer shall not borrow money from his clients unless the client’s interests are fully protected by the nature of the case or by independent advice; (b) Canon 7 which states that a lawyer shall uphold the integrity and dignity of the legal profession and support the activities of the IBP; and (c) Canon 16 which provides that a lawyer shall hold in trust all monies and properties of his client that may come into his possession.29 chanRob lesvi rtua lLawl ibra ry

The Investigating Commissioner observed that the checks were issued in respondent’s name and that he personally received and encashed them. Annex “E”30 of the Verified Complaint shows that respondent acknowledged receipt of the three (3) EastWest Bank checks and agreed to return the P2,500,000.00, plus a pro-rated monthly interest of five percent (5%), within five (5) days.31 chanRoblesv irt ual Lawlib rary

On the other hand, respondent’s claim that Nault was the real debtor was found to be implausible. The Investigating Commissioner remarked that if it is true that respondent was not the one who obtained the loan, he would have responded to complainants’ demand letter; however, he did not.32 He also observed that the acknowledgment33 Nault allegedly signed appeared to have been prepared by respondent himself.34 Finally, the Investigating Commissioner cited Nault’s Answer to the Third Party Complaint which categorically states that he does not even know the complainants and that it was respondent alone who obtained the loan from them.35 chanRoble svirtual Lawlib ra ry

In fine, the Investigating Commissioner concluded that respondent’s actions degraded the integrity of the legal profession and clearly violated Rule 16.04 and Canons 7 and 16 of the CPR. Respondent’s failure to appear during the mandatory conferences further showed his disrespect to the IBP-CBD.36 Accordingly, the Investigating Commissioner recommended that respondent be disbarred and that he be ordered to return the P2,500,000.00 to complainants, with stipulated interest.37 chanRob lesvi rtual Lawli bra ry

Finding the recommendation to be fully supported by the evidence on record and by the applicable laws and rule, the IBP Board of Governors adopted and approved the Investigating Commissioner’s Report in Resolution No. XX-2013-617 dated May 11, 2013,38 but reduced the penalty against the respondent to indefinite suspension from the practice of law and ordered the return of the P2,500,000.00 to the complainants with legal interest, instead of stipulated interest. Respondent sought a reconsideration39 of Resolution No. XX-2013-617 which was, however, denied in Resolution No. XXI-2014-29440 dated May 3, 2014. cralawred

The Issue Before the Court The central issue in this case is whether or not respondent should be held administratively liable for violating the CPR. The Court’s Ruling

The Court concurs with the IBP’s findings except as to its recommended penalty and its directive to return the amount of P2,500,000.00, with legal interest, to complainants. cralawred

I. Respondent’s receipt of the P2,500,000.00 loan from complainants is amply supported by substantial evidence. As the records bear out, Blesilda, on March 23, 2006, issued three (3) EastWest Bank Checks, in amounts totalling to P2,500,000.00, with respondent as the payee.41 Also, Annex “E”42 of the Verified Complaint shows that respondent acknowledged receipt of the checks and agreed to pay the complainants the loan plus the pro-rated interest of five percent (5%) per month within five (5) days.43The dorsal sides of the checks likewise show that respondent personally encashed the checks on the day they were issued.44 With respondent’s direct transactional involvement and the actual benefit he derived therefrom, absent too any credible indication to the contrary, the Court is thus convinced that respondent was indeed the one who borrowed the amount of P2,500,000.00 from complainants, which amount he had failed to return, despite their insistent pleas. Respondent’s theory that Nault is the real debtor hardly inspires belief. While respondent submitted a document purporting to be Nault’s acknowledgment of his debt to the complainants, Nault, in his Answer to Third Party Complaint, categorically denied knowing the complainants and incurring the same obligation. Moreover, as correctly pointed out by complainants, it would be illogical for them to extend a P2,500,000.00 loan without any collateral or security to a person they do not even know. On the other hand, complainants were able to submit documents showing respondent’s receipt of the checks and their encashment, as well as his agreement to return the P2,500,000.00 plus interest. This is bolstered by the fact that the loan transaction was entered into during the existence of a lawyer-client relationship between him and complainants,45 allowing the former to wield a greater influence over the latter in view of the trust and confidence inherently imbued in such relationship. Under Rule 16.04, Canon 16 of the CPR, a lawyer is prohibited from borrowing money from his client unless the client’s interests are fully protected: cha nrob lesvi rtua llawlib ra ry

CANON 16 – A lawyer shall hold in trust all moneys and properties of his clients that may come into his possession. 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 Court has repeatedly emphasized that the relationship between a lawyer and his client is one imbued with trust and confidence. And as true as any natural tendency goes, this “trust and confidence” is prone to abuse. The rule against borrowing of money by a lawyer from his client is intended to prevent the lawyer from taking advantage of his influence over his client.46 The rule presumes that the client is disadvantaged by the lawyer’s ability to use all the legal maneuverings to renege on his obligation.47 In Frias v. Atty. Lozada48 (Frias) the Court categorically declared that a lawyer’s act of asking a client for a loan, as what herein respondent did, is unethical, to wit: chan roble svirtuallaw lib rary

Likewise, her act of borrowing money from a client was a violation of [Rule] 16.04 of the Code of Professional Responsibility: A lawyer shall not borrow money from his client unless the client’s interests are fully protected by the nature of the case and by independent advice. A lawyer’s act of asking a client for a loan, as what respondent did, is very unethical. It comes within those acts considered as abuse of client’s confidence.The canon presumes that the client is disadvantaged by the lawyer’s ability to use all the legal maneuverings to renege on her obligation.49 (Emphasis supplied) Cha nRobles Vi rtualaw lib rary

As above-discussed, respondent borrowed money from complainants who were his clients and whose interests, by the lack of any security on the loan, were not fully protected. Owing to their trust and confidence in respondent, complainants relied solely on the former’s word that he will return the money plus interest within five (5) days. However, respondent abused the same and reneged on his obligation, giving his previous clients the runaround up to this day. Accordingly, there is no quibble that respondent violated

Rule 16.04 of the CPR. In the same vein, the Court finds that respondent also violated Canon 7 of the CPR which reads:

chan roblesv irt uallawl ibra ry

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. In unduly borrowing money from the complainants and by blatantly refusing to pay the same, respondent abused the trust and confidence reposed in him by his clients, and, in so doing, failed to uphold the integrity and dignity of the legal profession. Thus, he should be equally held administratively liable on this score. That being said, the Court turns to the proper penalty to be imposed and the propriety of the IBP’s return directive. c ralaw red

II. The appropriate penalty for an errant lawyer depends on the exercise of sound judicial discretion based on the surrounding facts.50 chanRoblesvi rtua lLawl ibra ry

In Frias, the Court suspended the lawyer from the practice of law for two (2) years after borrowing P900,000.00 from her client, refusing to pay the same despite court order, and representing conflicting interests.51 Considering the greater amount involved in this case and respondent’s continuous refusal to pay his debt, the Court deems it apt to suspend him from the practice of law for three (3) years, instead of the IBP’s recommendation to suspend him indefinitely. The Court also deems it appropriate to modify the IBP’s Resolution insofar as it orders respondent to return to complainants the amount of P2,500,000.00 and the legal interest thereon. It is settled that in disciplinary proceedings against lawyers, the only issue is whether the officer of the court is still fit to be allowed to continue as a member of the Bar.52 In such cases, the Court’s only concern is the determination of respondent’s administrative liability; it should not involve his civil liability for money received from his client in a transaction separate, distinct, and not intrinsically linked to his professional engagement. In this case, respondent received the P2,500,000.00 as a loan from complainants and not in consideration of his professional services. Hence, the IBP’s recommended return of the aforementioned sum lies beyond the ambit of this administrative case, and thus cannot be sustained. chanrob leslaw

WHEREFORE, respondent Atty. Elmer A. dela Rosa is found guilty of violating Canon 7 and Rule 16.04, Canon 16 of the Code of Professional Responsibility. Accordingly, he is hereby SUSPENDED from the practice of law for a period of three (3) years effective upon finality of this Decision, with a stern warning that a commission of the same or similar acts will be dealt with more severely. This Decision is immediately executory upon receipt. Let a copy of this Decision be furnished the Office of the Bar Confidant, the Integrated Bar of the Philippines, and the Office of the Court Administration for circulation to all the courts. SO ORDERED.

G.R. No. 192866

July 9, 2014

PEDRO G. RESURRECCION, JOSEPH COMETA and CRISEFORO LITERA TO, JR., Petitioners, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION BRION, J.:

Before us is a petition for review on certiorari1 assailing the February 11, 2010 decision2 and the July 10, 2010 resolution3 of the Sandiganbayan in Criminal Case Nos. 25235-39, finding Pedro G. Resurreccion, Joseph Cometa, Criseforo Literato, Jr. (collectively petitioners) and Pilarito Orejas guilty of violating Section 3(e) of Republic Act No. 3019. Resurreccion was also convicted of malversation of public funds as defined under Article 217 of the Revised Penal Code (RPC). The Antecedent Facts At the time material to the controversy, the petitioners occupied their respective positions in the local government unit of the Municipality of Pilar, Surigao del Norte: Resurreccion was the Municipal Mayor; Cometa was the Municipal Budget Officer; and Literato was the Municipal Engineer. The other accused, Wilfredo B. Consigo4 and Orejas, were the Municipal Treasurer and Municipal Accountant, respectively. The State Auditor, Romeo Corral Uy, of the Commission on Audit ( COA) Regional Office No. 13 of Butuan City and Freda Paller Napana of the Provincial Auditor's Office in Surigao City conducted a special audit and post audit of the various disbursements, transactions and financial accounts of the Municipality of Pilar, Surigao del Norte. The audit team's examination covered the period from 1992 to 1994. In his COA Special Audit Report (COA Report),5 Auditor Uy reported that several disbursements of money for the payment of construction materials intended for the improvement of the Municipal Building, and the purchase of one (1) unit of typewriter amounting to ₱83 l ,420. l 7, ₱23,000.00, ₱158,394.00 and ₱163,000.00, were awarded to Kent Marketing, Samuel Trigo and Domingo Tesioma without public bidding, in violation of Sections 362 of Republic Act No. 7160.6 Auditor Uy also found that the basic procedures for the disbursement of public funds under Section 362 and 367 of Republic Act No. 7160,7 Section 4(6) of Presidential Decree No. 14458 and Section 9 of COA Circular No. 92-382 dated July 3, 1992 were not followed. As a result, Auditor Uy characterized the disbursements as irregular expenditures for not adhering to the aforementioned rules and regulations. Other irregularities found to have been committed included: 1. The purchases were made not through public bidding in violation of Sections 362 and 367 of Republic Act No. 7160; 2. There was no proof that the purchases were approved by the Committee on Awards as required under Section 367 of Republic Act No. 7160; 3. The disbursements were made in cash in violation of Section 9 of COA Circular No. 92382 dated July 3, 1992; 4. The disbursements were not supported by complete documentation, in violation of Section 4( 6) of Presidential Decree No. 1445; 5. There were no agency inspections, reports and deliveries; 6. Some of the construction/filling materials were purchased from unlicensed suppliers; and 7. The quantity procured exceeded the quantity per program of work. Auditor Uy likewise reported that the municipality paid then Mayor Resurreccion the amount of P.3,000.00 as reimbursement for his donation to the religious organization, Knights of Columbus of

Pilar, in violation of Section 29(2), Article VI of the Constitution and Section 335 of Republic Act No. 7160. He found that the item of expenditure, taken from the municipality's Development Fund, is tantamount to malversation of public funds or illegal diversion of public funds, pursuant to Sections 217 and 220 of the RPC. Additionally, Auditor Uy found that two unapproved and unauthorized payrolls, representing the honoraria for unspecified purpose, in the amounts of ₱32,000.00 and ₱47,000.00 were fully disbursed, in violation of Sections 179(h) and 289 of the Government Accounting and Auditing Manual ( GAAM). Pertinent portions of the COA Report read: 1. Two unapproved payrolls representing honorarium (sic) and for unspecified purpose, in the amount of ₱47,000.00 and ₱32,000.00, respectively, were reported fully disbursed although ₱20,000.00 of which was not acknowledged by payees. [Moreover], they were not supported with authority to pay honorarium in violation of Section 289 [of the] GAAM[,] Volume 1. xxxx 2. The Municipality paid Mayor Pedro G. Resurreccion in the amount of ₱3,000.00 as reimbursement for donation to religious organization, in violation of Article VI, Section 29, No. 2 of the Philippine Constitution and Section 335 of R.A. 7160. xxxx 5. Purchase of construction materials and one (1) unit typewriter amounting [to] ₱831,420.17 and ₱23,000.00, respectively[,] were made without public bidding in violation of Section 362 of Republic Act No. 7160. Moreover, ₱790,741.67 of the said construction materials were paid in cash and not supported with complete documentation, in violation of Section 9 of COA Circular No. 92-382 and Section 4 (6) of P.D. 1445, respectively. Thus, were considered irregular expenditures. xxxx 6. Lumber materials and filling materials totaling ₱158,394.00 and ₱163,000.00, respectively, were purchased not through public bidding. Moreover, they were purchased from unlicensed suppliers and its quantity exceeded the quantity as programmed. Thus, the said disbursements were considered irregular expenditures.9 The petitioners, together with their co-accused Consigo and Orejas, were charged with violation of Section 3(e) of Republic Act No. 3019 before the Sandiganbayan: Resurreccion, Consigo and Cometa were charged with four counts of violation of Section 3(e) of Republic Act No. 3019 in Criminal Case Nos. 25235, 25237, 25238 and 25239; Orejas was charged with two counts in Criminal Case Nos. 25235 and 25237; while Literato was charged with two counts in Criminal Case Nos. 25238 and 25239. Resurreccion was also charged with malversation of public funds. On arraignment, all the accused pleaded not guilty. During the pretrial, the parties entered into the following stipulation of facts: 1. That the accused admit their positions in the government as stated in the Informations; 2. That prosecution admits the authenticity, genumeness and due execution of defense' [ s] exhibits from Exhibits "l" to "9" with submarkings inclusive;

3. The defense admits the authenticity, genuineness and due execution of x x x exhibits "A" to "Z" with submarkings inclusive[.]10 Evidence of the Prosecution The prosecution presented Auditor Uy and Auditor Napana as its witnesses. Auditor Uy confirmed the COA Report findings in his testimony before the Sandiganbayan. His testimony was corroborated by Auditor Napana who testified that the purchases of construction materials by the municipality were made without conducting a public bidding; that the disbursements were made in cash and not in check; and that she disallowed the disbursement of funds pertaining to the reimbursement of cash donation to the religious organization. After the prosecution had rested its case, the accused filed a Demurrer to Evidence,11 which the Sandiganbayan denied. Evidence of the Defense Despite the ample opportunity given, the accused still failed to present evidence on their behalf. The accused, however, were able to file their memorandum12 where they alleged that the prosecution's evidence fell short of the settled yardstick which would justify their conviction for violation of Section 3(e) of Republic Act No. 3019. There, they argued that the head of an agency can resort to any of the modes of procurement prescribed by law as long as it is advantageous to the government. Resurreccion also justified the lack of public bidding by claiming that a resort to public bidding for all the municipality's transactions in procurement would be a financial burden for a 4th or 5th class municipality like Pilar.13 Resurreccion further claimed that his act of using the amount of ₱3,000.00 from his discretionary funds to pay the members of the Knights of Columbus of Pilar does not constitute the crime of malversation. Even assuming that the payments were made to the members of the Knights of Columbus of Pilar, there was no violation of the principle of separation of the church and the state since the Knights of Columbus of Pilar is not a religious institution.14 Anent the unauthorized grant of monetary benefits, the accused averred that the payment of honoraria to the government employees is allowed under Section 288 of the GAAM and that the law does not require an authority from the Provincial Government to grant the same. The Ruling of the Sandiganbayan In its decision15 dated February 11, 2010, the Sandiganbayan found the prosecution's evidence more persuasive. • Criminal Case Nos. 25235 and 25237 Criminal Case Nos. 25235 and 25237 involve procurement and payment of construction materials without the benefit of public bidding and adequate documentary support. The Sandiganbayan found that all the elements under Section 3(e) of Republic Act No. 3019 were duly established by the prosecution's evidence: first, the petitioners are all public officials; second, the public officials acted with manifest partiality and evident bad faith in awarding government contracts without following the prescribed procedure; and third, the petitioners gave unwarranted benefits to Kent Marketing, Samuel Trigo and Domingo Tesiorna, which resulted in undue injury to the government.

The Sandiganbayan observed that the procurements for which the public funds were disbursed did not undergo public bidding. It relied largely on the COA report issued by Auditor Uy and the post audit of Auditor Napana showing that the disbursement vouchers involved were issued without complying with the auditing rules and regulations (i.e., rule on public bidding, payment of cash instead of checks and rule on supporting documents) and hence illegal. It also noted that the lack of public bidding and the irregularities attending the disbursement of public funds were not denied by the accused. Both in Criminal Case Nos. 25235 and 25237, the Sandiganbayan convicted Resurreccion and Orejas of violation of Section 3( e) of Republic Act No. 3019, as amended; and acquitted Cometa for failure of the prosecution to prove his guilt beyond reasonable doubt. • Criminal Case Nos. 25238 and 25239 In Criminal Case Nos. 25238 and 25239, the Sandiganbayan found that the payment of honoraria to the personnel of the Provincial Engineer's Office (PEO) without authority and legal basis was tainted with irregularities. It noted that the monetary grant to the PEO personnel had no legal ground to stand on as the same was not authorized under Section 288 of the GAAM on the grant of honoraria and per diem. Relying on the COA Report, it ruled that the grant of unauthorized honoraria gave unwarranted benefits to the recipients which resulted in undue injury to the government. In Criminal Case No. 25238, the Sandiganbayan convicted Literato Jr. of violation of Section 3(e) of Republic Act No. 3019; and acquitted Resurreccion and Cometa for failure of the prosecution to prove their guilt beyond reasonable doubt. In Criminal Case No. 25239, the Sandiganbayan convicted Cometa of violation of Section 3(e) of Republic Act No. 3019; and acquitted Resurreccion and Literato for failure of the prosecution to prove their guilt beyond reasonable doubt. • Criminal Case No. 25236 Anent the charge for malversation against Resurreccion in Criminal Case No. 25236, the Sandiganbayan found that all the elements are present: first, Resurreccion was a public officer at the time of the commission of the crime; second, the P.3,000.00 reimbursement came from the 20% Development Fund; third, by virtue of his position as Mayor of Pilar, Resurreccion was accountable for the public funds; and fourth, by reimbursing the donation he made to a religious organization, Resurreccion allowed a third person (Knights of Columbus) to take the ₱3,000.00 from the 20% Development Fund without legal basis. Accordingly, the Sandiganbayan convicted Resurreccion and ordered him to pay a fine of ₱3,000.00. The petitioners sought, but failed, to obtain a reconsideration.16 Hence, this present petition. The Petitioners' Arguments The petitioners contend that the Sandiganbayan gravely erred in convicting them based only on the evidence presented by the prosecution. They attribute their failure to present evidence to their former counsel's (Atty. Manuel Corpuz 's) negligence and claim that they were denied due process of law. They argue that Atty. Corpuz's failure to inform them about the developments affecting their case and the scheduled hearing for the reception of evidence - resulting in the waiver of presentation of defense evidence, as they were not able to present evidence in their behalf -constitutes gross negligence that warrants the application of the exception to the general rule that "negligence and dereliction of duty of the counsel bind the client."17

The petitioners likewise argue that the Sandiganbayan gravely erred when it denied their motion for reconsideration on the mere technical ground that their motion lacked the required notice of hearing. They insist that the 1st Division of the Sandiganbayan committed an oversight as there was, in fact, a notice of hearing attached to their motion for reconsideration. The OSP's Comment The Office of the Special Prosecutor (OSP) prays for the denial of the petition for lack of merit. The OSP submits: (1) that the client is bound by the mistakes of his counsel; (2) that the circumstances, which would justify an exception to the rule, are not present in the present case; (3) that the allegedly negligent act of a counsel could not be categorized as constituting gross negligence; (4) that the petitioners' claim of gross negligence was belatedly raised; (5) that the petitioners are not without fault as they failed to periodically keep in touch with their counsel; and (6) that the denial of the petitioners' motion for reconsideration was in accordance with the rules. Issues Raised There are only two issues presented for our resolution: (1) Whether the negligence of the former counsel of the petitioners in allegedly not informing them about the status of their case, resulting in their failure to present evidence and, consequently, to the waiver of their right to present evidence, is a valid ground to set aside the judgment for conviction. (2) Whether the 1st Division of the Sandiganbayan correctly denied the petitioners' motion for reconsideration on the ground that the motion did not contain a notice of hearing. Our Ruling We find the petition devoid of merit. We note, at the outset, that the petitioners do not question the correctness of the Sandiganbayan's finding of guilt based on the merits of the case. In fact, the petitioners never denied their noncompliance of the government auditing rules and regulations, specifically the lack of public bidding and supporting documents. In their petition, the petitioners simply make the belated claim that the Sandiganbayan gravely erred in convicting them based solely on the evidence presented by the prosecution. They blame the alleged negligence of Atty. Corpuz for their failure to present evidence and, ultimately, in the waiver of their right to present the same. They contend that Atty. Corpuz's failure to communicate with them for nearly three years constitutes gross negligence resulting to deprivation of their right to due process of law. We have meticulously gone over the entire records and find that Atty. Corpuz was not guilty of gross negligence. Negligence of the Counsel de Parte Binds the Petitioners Nothing is more settled than the rule that the negligence and mistakes of the counsel are binding on the client.18 The rationale behind this rule is that a counsel, once retained, is said to have the authority, albeit impliedly, to do all acts necessary or, at least, incidental to the prosecution of the case in behalf of his client, such that any act or omission by counsel within the scope of his authority is treated by law as the act or omission of the client himself.19 It is only in cases involving gross or palpable negligence of the counsel, or when the application of the general rule amounts to an outright deprivation of one's property or liberty through technicality, or where the interests of justice

so require, when relief is accorded to a client who has suffered thereby.20 As can be gleaned from the records, hearings were scheduled by the Sandiganbayan for the parties' presentation of evidence. However, due to the repeated absences of the accused and the prosecution witnesses; as well as the motions for cancellation filed both by the prosecution and the defense counsels,21 the hearings had been postponed several times. Although the postponements were not solely attributable to the petitioners, Atty. Corpuz cannot also be entirely faulted. Records also reveal that the petitioners have all executed their respective written waivers of appearance during the prosecution's presentation of evidence which the court approved.22 When it was the defense's tum to present its witnesses, Resurreccion and his co-accused failed to appear during the hearing.23 On the first scheduled date, the petitioners failed to attend because of the inclement weather.24 By agreement of the parties, the hearing was set on another date but the petitioners were still absent, compelling the court to cancel the hearing.25 The hearing was again moved to another date but despite notices given to the petitioners, and a stem warning from the court that their absence on the next scheduled hearing would warrant the termination of the presentation of their evidence, the petitioners again failed to appear.26 Verily, Atty. Corpuz cannot be faulted for the waiver of the petitioners' defense. "For a claim of a counsel's [gross] negligence to prosper, nothing short of clear abandonment of the client's cause must be shown."27 "[T]he gross negligence, too,] should not be accompanied by the client's own negligence or malice."28 Here, Atty. Corpuz was present all throughout the presentation of the prosecution's evidence. While he allegedly failed to communicate with the petitioners for nearly three years and to inform them about the status of their case, this omission, however, does not amount to abandonment that qualifies as gross negligence. If at all, the omission is only an act of simple negligence, and not gross negligence that would warrant the annulment of the proceedings below. Besides, as far as the court is concerned, the petitioners were already duly notified, through their counsel, of the entire proceedings in the case.29 If they failed to inquire from their counsel as to the status and developments of their case, they alone should be blamed. As held in Bejarasco, Jr. v. People:30 Truly, a litigant bears the responsibility to monitor the status of his case, for no prudent party leaves the fate of his case entirely in the hands of his lawyer. It is the client's duty to be in contact with his lawyer from time to time in order to be informed of the progress and developments of his case; hence, to merely rely on the bare reassurances of his lawyer that everything is being taken care of is not enough. [citation omitted] As clients, it is the petitioners' correlative duty to be in contact with Atty. Corpuz from time to time to inform themselves of the status of their case.31 Considering that what is at stake is their liberty, they should have exercised the standard of care which an ordinarily prudent man devotes to his business. The petitioners cannot simply leave the fate of their case entirely to their counsel and later on pass the blame to the latter. "Diligence is required not only from lawyers but also from their clients."32 The Petitioners Were Not Denied Due Process In any event, we note that even assuming that Atty. Corpuz had indeed been grossly negligent in not communicating with them for three years, it cannot be said that the petitioners had been deprived of due process of law. As shown above, the petitioners were not denied their day in court and were, in fact, afforded ample opportunity to present evidence in their defense. The petitioners, through Atty. Corpuz filed a series of pleadings and motions, such as: comment/opposition to the prosecution's formal offer of evidence,33 motion to file a demurrer to

evidence,34 demurrer to evidence35 and memorandum.36 The petitioners were likewise wellrepresented by Atty. Corpuz who was present all throughout the presentation of the prosecution's evidence; while Resurreccion was present during the July 29, 2003 hearing and during the completion of prosecution witness Auditor Uy's examination.37 Under these circumstances, it is clear that the petitioners were given reasonable opportunity to be heard. The petitioners cannot now complain that they were deprived of due process of law. We have consistently held that the essence of due process is simply an opportunity to be heard, or an opportunity to explain one's side or an opportunity to seek for a reconsideration of the action or ruling complained of.38 For as long as the parties are given the opportunity to present their cause of defense, their interest in due course as in this case, it cannot be said that there was denial of due process. 1âw phi 1

Denial Of The Petitioners' Motion For Reconsideration Was Proper Anent the issue of whether the Sandiganbayan erred in denying the petitioners' motion for reconsideration on the sole ground that the motion lacked the required notice of hearing, the Rules of Court require that every written motion be set for hearing by the movant, except those motions which the court may act upon without prejudicing the rights of the adverse party. The notice of hearing must be addressed and served to all parties at least three days before the hearing. It must specify the time and date of the hearing of the motion.39 Sections 4 and 5, Rule 15 of the 1997 Rules of Civil Procedure provide: 1âwphi1

SECTION 4. Hearing of motion. - Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant. Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice. SECTION 5. Notice of hearing. The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing which must not be later than ten (10) days after the filing of the motion. A motion which does not meet the requirements of Sections 4 and 5, Rule 15 of the 1997 Rules of Civil Procedure is considered pro forma; it is nothing but a worthless piece of paper which the clerk has no right to receive and the court has no authority to act upon.40 "Service of [a] copy of a motion containing notice of the time and place of hearing of said motion is a mandatory requirement and the failure of the movant to comply with [the] said requirements renders his motion fatally defective.41 In the present case, the motion for reconsideration filed by the petitioners before the Sandiganbayan reads as follows: NOTICE OF HEARING The Division Clerk of Court 1st Division, Sandiganbayan, Quezon City Greetings: Please x x x submit the foregoing Motion for Reconsideration of Decision for the immediate consideration and approval by this Honorable Division as soon as receipt is made hereof.

(SGD) ATTY. LEO T. EDUARTE COPY FURNISHED: BY PERSONAL SERVICE The Honorable Trial Prosecutors 1st Division Sandiganbayan, Quezon City42 The notification, however, only prays for the submission of the motion for reconsideration and approval of the court, without stating the time, date and place of the hearing of the motion. It was, therefore, not the notice of hearing contemplated by the rules as the same has not been set for hearing. In Manila Surety and Fidelity Co., Inc. v. Batu Const. and Co., et al,43 we declared that: The written notice referred to evidently is that prescribed for motions in general by Rule 15, [S]ections 4 and 5 (formerly Rule 26), which provide that such notice shall state the time and place of hearing and shall be served upon all the parties concerned at least three days in advance. And according to Section 6 of the same Rule[,] no motion shall be acted upon by the court without proof of such notice. Indeed[,] it has been held that in such a case the motion is nothing but a useless piece of paper. The reason is obvious: unless the movant sets the time and place of hearing[,] the court would have no way to determine whether that party agrees to or objects to the motion, and if he objects, to hear him on his objection, since the Rules themselves do not fix any period within which he may file his reply or opposition. Similarly, we held in Sembrano v. Judge Ramirez44 that: [A] motion without notice of hearing is a mere scrap of paper. It does not toll the running of the period of appeal. This requirement of notice of hearing equally applies to a motion for reconsideration. Without such notice, the motion is pro forma. And a pro forma motion for reconsideration does not suspend the running of the period to appeal. Since the motion for reconsideration filed by the petitioners did not contain the time, date and place for the hearing, the motion is nothing but a useless scrap of paper, a pro forma motion, hence, properly dismissible by the Sandiganbayan. WHEREFORE, the instant petition is DENIED for lack of merit. The decision dated February 11, 2010 and the resolution dated July 10, 2010 of the Sandiganbayan in Criminal Case Nos. 25235-39 are hereby AFFIRMED. SO ORDERED.

A.C. No. 5246

March 20, 2003

EDGAR O. PEREA, complainant, vs. ATTY. RUBEN ALMADRO, respondent. RESOLUTION

AUSTRIA-MARTINEZ, J.: Before the Court is a complaint for disbarment filed by Edgar O. Perea against Atty. Ruben Almadro for gross neglect of his duties as lawyer of herein complainant. Complainant narrates: Respondent was his counsel before the Regional Trial Court of Quezon City (Branch 99) where he (complainant Perea) is being charged with the crime of Frustrated Homicide. On February 26, 1996, the said RTC issued an order granting Atty. Almadro’s motion for leave to file demurrer to evidence within ten (10) days from said date. All the while, complainant thought that respondent filed said demurrer and the case against him dismissed. It was only sometime in 1999 that complainant learned that Atty. Almadro failed to file any demurrer. The trial court ordered the herein complainant to present evidence in his defense. Later, a warrant was issued for his arrest prompting him to surrender to the court and post bail. Complainant suffered financially and emotionally due to respondent’s neglect of his duties. Respondent has not attended any of his hearings which led complainant to plead with respondent to withdraw formally as his counsel so he could hire another lawyer. Because of Atty. Almadro’s neglect, complainant is now facing the loss of his freedom and livelihood.1 Respondent filed three motions for extension of time to file comment.2 On November 13, 2000, the Court resolved to grant the said motions with a warning that no further extensions shall be granted.3 On November 17, 2000, respondent, through the law firm Sua and Alambra, filed a Manifestation and Motion that respondent has not yet received a copy of the complaint hence it asked the Court to order the complainant to furnish them a copy.4 On December 20, 2000, respondent through said law firm submitted an Answer5 to the complaint, contending that: two days after the RTC granted the manifestation of defense to file motion for leave to file demurrer to evidence, he had finished the draft of the motion and the accompanying pleading which he stored in a magnetic computer diskette intended for editing prior to its submission in court; a few days before the deadline, herein respondent tried to retrieve the draft from the diskette but said drafts were nowhere to be found despite efforts to retrieve them; this led him to believe that the drafts must have been finalized and the edited versions accordingly filed since it is his practice to expunge from the diskette drafts that were already finalized and acted upon; meanwhile, the presiding judge of the RTC retired, as a consequence, actions on pending cases were held in abeyance; moreover, communications with the herein complainant had become rarer; thereafter, towards the end of 1997 up to the next five months of 1998, respondent was preoccupied with the congressional elections in Biliran where he ran and subsequently lost; then he was offered a position at the Philippine Stock Exchange as head of the Compliance and Surveillance Division which he accepted; his time and attention was spent in the performance of his demanding job at the PSE as well as in the preparation of his testimony before the Senate Blue Ribbon Committee in connection with the "BW" scam; anent the case of herein complainant, he offered on several occasions to withdraw as one of the defense counsel of the complainant even to the extent of offering to return his acceptance fee which the latter however refused;6 it is not true that complainant pleaded with respondent to withdraw as his counsel, the truth being that it was complainant who refused to let go of respondent as his counsel; also, while he is a counsel of complainant in the criminal case before the RTC, he was merely a collaborating counsel, the lead counsel being Atty. Solomon Villanueva;7 finally, he was actually mulling over the possible procedural steps to take with regard to complainant’s case when he received instead, a copy of the present complaint.8 On February 28, 2001, the Court issued a Resolution9 referring the case to the Integrated Bar of the Philippines for investigation, report and recommendation.

On June 13, 2001, the IBP through Commissioner Renato G. Cunanan submitted its report, pertinent portions of which are quoted verbatim: "We are not convinced about the truth of respondent’s affirmative allegations. It is clear that he as well as his counsels are lying. First off, the manifestation with motion filed by respondent’s counsels, Sua and Alambra is incredibly unbelievable. In fact, to be blunt about it, respondent’s counsels were clearly lying when they manifested that the respondent "has yet to receive a copy of the complaint..." This is an outrageous lie. The respondent’s three (3) motions never once mentioned that he had not received copy of the complaint. In fact, in his second motion for further extension of time to file comment, Atty. Almadro CLEARLY stated in the second paragraph thereof that: ‘He is in the process of reviewing an initial draft of said comment and will need said period of ten (10) days to complete and finalize the draft.’ "From the afore-quoted portion of Mr. Almadro’s manifestation and motion, it is obvious he already had a copy of the complaint. The manifestation and motion filed on his behalf by Attys. Sua and Alambra with the Honorable Supreme Court is a brazen and deliberate misrepresentation which deserves an uncompromising and vigorous condemnation. "The respondent claims he is in solo practice. How then can he honestly claim that when he could not find the draft of his demurrer in the magnetic computer diskette where he allegedly stored it, he was led "to believe that the drafts must have been finalized and the edited versions thereof accordingly filed." This allegation is pure unadulterated garbage. All Mr. Almadro had to do was check his case folder to see if a demurrer had indeed been filed. As a solo practitioner like this representation, we can only surmise that logically, nothing happens or "goes down" in Mr. Almadro’s office without his knowledge and indispensable participation. If so, how could he have been led to believe anything? To be sure, he would have read and signed the demurrer before it was "accordingly filed." Being a solo practitioner no one else could have signed that demurrer. And does Mr. Almadro expect anyone to believe that after finishing the draft (in his computer) he would not even bother to print a hard copy for him to read, edit and correct without having to do so from his computer monitor? "Incidentally, this representation verified the records of the complainant’s criminal case before RTC-Branch 99, Quezon City. We came upon an Order of the incumbent presiding judge declaring the respondent herein in contempt of court for repeatedly failing to submit an explanation as ordered by the court. "The undersigned is convinced that Atty. Ruben L. Almadro’s actuations reveal not only serious neglect or indifference to his duties as a lawyer but more gravely his open disrespect for the court and the authority it represents. "We wish to put on record our extreme DISPLEASURE at the behavior of respondent Atty. Ruben L. Almadro. We strongly recommend that respondent be suspended from the practice of law for two (2) years and that he be fined Ten Thousand (PhP10,000.00) Pesos. We likewise recommend strongly that Attys. Sua and Alambra be ordered to explain why they should not be held in contempt for deliberately foisting a deliberate falsehood and misrepresentation on the Honorable Supreme Court by declaring that their client had not received a copy of the complaint when such was not true. By their misrepresentation the afore-named counsels have exhibited contemptible disrespect not only for the Court but also the authority it represents."10

The report was adopted and approved by the Board of Governors of the IBP Commission on Bar Discipline with some modifications thus: "RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution/Decision as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, with modification, and considering that Atty. Ruben L. Almadro’s actuations reveal not only serious neglect or indifference to his duties as a lawyer but more gravely his open disrespect for the court and the authority it represent. Respondent is hereby SUSPENDED from the practice of law for one (1) year and FINED for Ten Thousand (P 10,000.00) Pesos. Likewise, Atty. Sua and Atty. Alambra are ordered to explain why they should not be held in contempt for deliberately foisting a deliberate falsehood and misrepresentation."11 Respondent filed a motion for reconsideration on September 11, 2002, this time in his own behalf, of the above quoted IBP Board Resolution.12 This was denied on October 19, 2002.13 We are in full accord with the findings and recommendation of the IBP. As clearly stated in the Code of Professional Responsibility CANON 18 --- A lawyer shall serve his client with competence and diligence. Rule 18.03 --- A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable. Rule 18.04 --- A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the client’s request for information. It is plain from the records that respondent lawyer failed to submit a demurrer to evidence for which he had earlier asked permission from the trial court and which his client, herein complainant was relying on. More than that, he failed to contact his client and to apprise the latter about the developments of the case leaving complainant completely surprised and without any protection when years later, he received summons from the trial court asking him to present evidence in his defense and, not long after, the trial court issued a warrant for his arrest. In the recent case of Sps. Galen et al. vs. Atty. Paguirigan14 the Court is explicit in its pronouncement that: "An attorney is bound to protect his client’s interest to the best of his ability and with utmost diligence. A failure to file brief for his client certainly constitutes inexcusable negligence on his part. The respondent has indeed committed a serious lapse in the duty owed by him to his client as well as to the Court not to delay litigation and to aid in the speedy administration of justice. xxx

xxx

xxx

"A lawyer is expected to be familiar with these rudiments of law and procedure and anyone who acquires his service is entitled to not just competent service but also whole-hearted devotion to his client’s cause. It is the duty of a lawyer to serve his client with competence and diligence and he should exert his best efforts to protect within the bounds of law the

interest of his client. A lawyer should never neglect a legal matter entrusted to him, otherwise his negligence in fulfilling his duty will render him liable for disciplinary action."15 In other cases, the Court also held that while a lawyer may decline a person to become his client for valid reasons, once he agrees to take up the cause of a client, he begins to owe fidelity to such cause and must always be mindful of the trust and confidence reposed in him. As a lawyer, he must serve the client with competence and diligence, and champion the latter’s cause with wholehearted fidelity, care and devotion. Indeed, he owes entire devotion to the interest of his client, warm zeal in the maintenance and defense of his client’s rights, and the exertion of his utmost learning and ability to the end that nothing be taken or withheld from his client, save by the rules of law legally applied.16 His client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land and he may expect his lawyer to assert every such remedy or defense.17 Respondent’s negligence is compounded by his attempt to have this tribunal believe the story of how his draft, stored in a magnetic diskette, mysteriously disappeared and how the absence of such file in his diskette led him to believe that the same was already filed in court. In his Answer, he even tried to depict himself as a conscientious lawyer by stating that he was actually mulling on the procedural steps he would undertake regarding complainant’s case when instead he received a copy of this complaint for disbarment. Such story, as observed by the IBP, is not only outrageous but is contemptuous as it makes a mockery of the Court. Again, the Code of Professional Responsibility is explicit on this matter: CANON 10--- A lawyer owes candor, fairness and good faith to the court. Rule 10.01 ---A lawyer shall not do any falsehood, nor consent to the doing of any in court; nor shall he mislead or allow the court to be misled by any artifice. In Benguet Electric Cooperative, Inc. vs Atty. Flores,18 the Court, aside from citing Canon 10 above stated that "a lawyer must be a disciple of truth." Indeed, it cannot be stressed enough how important it is for a lawyer as an officer of the court to observe honesty at all times, especially before the courts. Respondent would have this Court believe a very preposterous story of how his draft disappeared, all the time avoiding the simple fact that he failed to submit the necessary pleading before the trial court. Such behavior cannot be countenanced and deserves stern penalty therefor. The act of the IBP in requiring Atty. Kenton Sua and Atty. Alan Alambra to show cause why they should not be held in contempt of court for deliberate falsehood and misrepresentation in the preparation of the Answer for herein respondent is appropriate. Records reveal that both Attys. Sua and Alambra have filed their joint Explanation.19 WHEREFORE, finding respondent Atty. Ruben Almadro guilty of serious neglect of his duties as a lawyer and of open disrespect for the court and the authority it represents, as embodied in Canon 18, Rules 18.03 and 18.04 and Canon 10, Rule 10.01 of the Code of Professional Responsibility, he is SUSPENDED from the practice of law for one (1) year and FINED in the amount of Ten Thousand (P10,000.00) Pesos, with a WARNING that any or similar acts of dishonesty would be dealt with more severely. Let a copy of the Resolution be attached to the personal records of Atty. Alambra in the Office of the Bar Confidant and copies be furnished the Integrated Bar of the Philippines (IBP) and all the courts in the country for their information and guidance.

Let the records of herein case be remanded to the Office of the Integrated Bar of the Philippines for further action on the contempt proceedings against Atty. Kenton Sua and Atty. Alan Alambra. SO ORDERED. Bellosillo, (Chairman), Mendoza, Quisumbing and Callejo, Sr., JJ., concur.

ALLIED BANKING CORPORATION, petitioner, vs. COURT APPEALS and POTENCIANO L. GALANIDA, respondents.

OF

DECISION CARPIO, J.:

The Case Before the Court is a petition for review assailing the Decision of 27 April 2000 and the Resolution of 8 August 2000 of the Court of Appeals in CA-G.R. SP No. 51451. The Court of Appeals upheld the Decision of 18 September 1998 and the Resolution of 24 December 1998 of the National Labor Relations Commission (NLRC) in NLRC Case No. V-000180-98. The NLRC modified the Decision dated 23 December 1997 of Labor Arbiter Dominador A. Almirante (Labor Arbiter) in NLRC Case No. RAB VII-05-054594 holding that Allied Banking Corporation (Allied Bank) illegally dismissed Potenciano L. Galanida (Galanida). The NLRC awarded Galanida separation pay, backwages, moral and exemplary damages, and other amounts totaling P1,264,933.33. [1]

[2]

[3]

Antecedent Facts For a background of this case, we quote in part from the Decision of the Court of Appeals: Private respondent Potenciano Galanida was hired by petitioner Allied Banking Corporation on 11 January 1978 and rose from accountant-book(k)eeper to assistant manager in 1991. His appointment was covered by a Notice of Personnel Action which provides as one of the conditions of employment the provision on petitioners right to transfer employees:

REGULAR APPOINTMENT: xxx It is understood that the bank reserves the right to transfer or assign you to other departments or branches of the bank as the need arises and in the interest of maintaining smooth and uninterrupted service to the public. Private respondent was promoted several times and was transferred to several branches as follows: a) January, 1978 to March, 1982 Tagbilaran City Branch b) April, 1982 to May, 1984 Lapulapu City Branch c) June, 1984 Mandaue City Branch d) July, 1984 to April, 1986 Tagbilaran City Branch e) May, 1986 to May, 1987 Dumaguete City Branch f) June, 1987 to August, 1987 Carbon Branch, Cebu City g) September, 1987 to Sept. 1989 Lapulapu City Branch, Cebu h) October, 1989 to Sept. 1992 Carbon Branch, Cebu City i) October 1992 to Sept. 1994 Jakosalem Regional Branch, Cebu City (Rollo, p. 47) Effecting a rotation/movement of officers assigned in the Cebu homebase, petitioner listed respondent as second in the order of priority of assistant managers to be assigned outside of Cebu City having been stationed in Cebu for seven years already. Private respondent manifested his refusal to be transferred to Bacolod City in a letter dated 19 April 1994 citing as reason parental obligations, expenses, and the anguish that would result if he is away from his family. He then filed a complaint before the Labor Arbiter for constructive dismissal. Subsequently, petitioner bank informed private respondent (Rollo, p. 86) that he was to report to the Tagbilaran City Branch effective 23 May 1994. Private respondent refused. In a letter dated 13 June 1994, petitioner warned and required of private respondent as follows: There is no discrimination in your transfer. In fact, among the officers mentioned, only you have refused the new assignment citing difficulty of working away from

your family as if the other officers concerned do not suffer the same predicament. To exempt you from the officer transfer would result in favoritism in your favor and discrimination as against the other officers concerned. In furtherance of maintaining a smooth and uninterrupted service to the public, and in accordance with the Banks order of priority of rotating its accountants places of assignments, you are well aware that Roberto Isla, AM/Accountant, assigned in Cebu for more than ten (10) years, was, on February 14, 1994, reassigned to Iligan City Branch and then to Cagayan de Oro City Branch on June 8, 1994. Hence, your objection on the ground of your length of service is without merit. xxx As discussed, your refusal to follow instruction concerning your transfer and reassignment to Bacolod City and to Tagbilaran City is penalized under Article XII of the Banks Employee Discipline Policy and Procedure [which] provides: XII Transfer and Reassignment Refusal to follow instruction concerning transfers and reassignments. First and subsequent offenses The penalty may range from suspension to dismissal as determined by management. The employee shall be required to comply with the order of transfer and reassignment, if the penalty is not termination of employment. In view of the foregoing, please explain in writing within three (3) days from receipt hereof why no disciplinary action should be meted against you for your having refused to follow instructions concerning the foregoing transfer and reassignment. xxx [4]

On 16 June 1994, Galanida replied that (w)hether the banks penalty for my refusal be Suspension or Dismissal xxx it will all the more establish and fortify my complaint now pending at NLRC, RAB 7. In the same letter, he charged Allied Bank with discrimination and favoritism in ordering his transfer, thus: [5]

xxx What I cannot decipher now under the headship of Mr. Olveda is managements discriminatory act of transferring only the long staying accountants of Cebu in the guise of its exercise of management prerogative when in truth and in fact, the ulterior motive is to accommodate some new officers who happen to enjoy favorable connection with management. How can the bank ever justify the transfer of Melinda T. Co, a new officer who had experienced being assigned outside of Cebu for more

than a year only to Tabunok Branch? If the purpose is for check and balance, is management implying that Melinda Co can better carry out such function over Mr. Larry Sabelino, who is a seasoned and experienced accountant or any of the Metro Cebu accountants for that matter? Isnt this act of management an obvious display of favoritism? xxx [6]

On 5 October 1994, Galanida received an inter-office communication (Memo) dated 8 September 1994 from Allied Banks VicePresident for Personnel, Mr. Leonso C. Pe. The Memo informed Galanida that Allied Bank had terminated his services effective 1 September 1994. The reasons given for the dismissal were: (1) Galanidas continued refusal to be transferred from the Jakosalem, Cebu City branch; and (2) his refusal to report for work despite the denial of his application for additional vacation leave. The salient portion of the Memo reads: [7]

Therefore, your refusal to follow instruction concerning your transfer and reassignment to Bacolod City and to Tagbilaran City is without any justifiable reason and constituted violations of Article XII of the Banks EDPP xxx In view of the foregoing, please be informed that the Bank has terminated your services effective September 1, 1994 and considered whatever benefit, if any, that you are entitled as forfeited in accordance with 04, V Administrative Penalties, page 6 of the Banks EDPP which provides as follows: 04. Dismissal. Dismissal is a permanent separation for cause xxx Notice of termination shall be issued by the Investigation Committee subject to the confirmation of the President or his authorized representative as officer/employee who is terminated for cause shall not be eligible to receive any benefit arising from her/his employment with the Bank or to termination pay. It is understood that the termination of your service shall be without prejudice to whatever legal remedies which the Bank may have already undertaken and/or will undertake against you. Please be guided accordingly. (Emphasis supplied)

[8]

The Ruling of the Labor Arbiter After several hearings, the Labor Arbiter held that Allied Bank had abused its management prerogative in ordering the transfer of Galanida to

its Bacolod and Tagbilaran branches. In ruling that Galanidas refusal to transfer did not amount to insubordination, the Labor Arbiter misquoted this Courts decision in Dosch v. NLRC, thus: [9]

As a general rule, the right to transfer or reassign an employee is recognized as an employers exclusive right and the prerogative of management (Abbott Laboratories vs. NLRC, 154 SCRA 713 [1987]). The exercise of this right, is not however, absolute. It has certain limitations. Thus, in Helmut Dosch vs. NLRC, et al. 123 SCRA 296 (1983), the Supreme Court, ruled: While it may be true that the right to transfer or reassign an employee is an employers exclusive right and the prerogative of management, such right is not absolute. The right of an employer to freely select or discharge his employee is limited by the paramount police power xxx for the relations between capital and labor are not merely contractual but impressed with public interest. xxx And neither capital nor labor shall act oppressively against each other. Refusal to obey a transfer order cannot be considered insubordination where employee cited reason for said refusal, such (sic) as that of being away from the family. (Underscoring supplied by the Labor Arbiter) [10]

The Labor Arbiter reasoned that Galanidas transfer was inconvenient and prejudicial because Galanida would have to incur additional expenses for board, lodging and travel. On the other hand, the Labor Arbiter held that Allied Bank failed to show any business urgency that would justify the transfer. The Labor Arbiter also gave credence to Galanidas claim that Allied Bank gave Ms. Co special treatment. The Labor Arbiter stated that Allied Bank deliberately left out Ms. Cos name from the list of accountants transferred to Cebu as contained in Allied Banks letter dated 13 June 1994. However, Mr. Regidor Olveda, Allied Banks Vice President for Operations Accounting, testified that the bank transferred Ms. Co to the Tabunok, Cebu branch within the first half of 1994. Still, the Labor Arbiter declined to award Galanida back wages because he was not entirely free from blame. Since another bank had already employed Galanida, the Labor Arbiter granted Galanida separation pay in lieu of reinstatement. The dispositive portion of the Labor Arbiters Decision of 23 December 1997 provides: WHEREFORE, premises considered, judgment is hereby rendered ordering respondent Allied Banking Corporation to pay complainant the aggregate total amount

of Three Hundred Twenty Four Thousand Pesos (P324,000.00) representing the following awards: a) Separation pay for P272,000.00; b) Quarter bonus for 1994 P16,000.00; c) 13th month pay for 1994 P16,000.00; d) Refund of contribution to Provident Fund - P20,000.00. SO ORDERED.

[11]

The Ruling of the NLRC On appeal, the NLRC likewise ruled that Allied Bank terminated Galanida without just cause. The NLRC agreed that the transfer order was unreasonable and unjustified, considering the family considerations mentioned by Galanida. The NLRC characterized the transfer as a demotion since the Bacolod and Tagbilaran branches were smaller than the Jakosalem branch, a regional office, and because the bank wanted Galanida, an assistant manager, to replace an assistant accountant in the Tagbilaran branch. The NLRC found unlawful discrimination since Allied Bank did not transfer several junior accountants in Cebu. The NLRC also held that Allied Bank gave Ms. Co special treatment by assigning her to Cebu even though she had worked for the bank for less than two years. The NLRC ruled that Galanidas termination was illegal for lack of due process. The NLRC stated that Allied Bank did not conduct any hearing. The NLRC declared that Allied Bank failed to send a termination notice, as required by law for a valid termination. The Memo merely stated that Allied Bank would issue a notice of termination, but the bank did not issue any notice. The NLRC concluded that Allied Bank dismissed Galanida in bad faith, tantamount to an unfair labor practice as the dismissal undermined Galanidas right to security of tenure and equal protection of the laws. On these grounds, the NLRC promulgated its Decision of 18 September 1998, the relevant portion of which states: In this particular case, We view as impractical, unrealistic and no longer advantageous to both parties to order reinstatement of the complainant. xxx For lack of sufficient basis, We deny the claim for 1994 quarter bonus. Likewise, no attorneys fees is

awarded as counsels for complainant-appellee are from the City Prosecutors Office of Cebu. WHEREFORE, premises considered, the decision of the Labor Arbiter dated December 23, 1997 is hereby MODIFIED by increasing the award of separation pay and granting in addition thereto backwages, moral and exemplary damages. The respondent-appellant, ALLIED BANKING CORPORATION, is thus ordered to pay to herein complainant-appellee, POTENCIANO L. GALANIDA, the following amounts: a) P336,000.00, representing separation pay b) P833,600.00, representing backwages c) P 5,333.23 representing proportional 1994 13th month pay d) P 20,000.00 representing refund of Provident Fund Contribution e) P 50,000.00 representing moral damages f) P 20,000.00 representing exemplary damages =========== P1,264,933.33 TOTAL AWARD All other claims are dismissed for lack of basis. The other respondents are dropped for lack of sufficient basis that they acted in excess of their corporate powers. SO ORDERED.

[12]

Allied Bank filed a motion for reconsideration which the NLRC denied in its Resolution of 24 December 1998. [13]

Dissatisfied, Allied Bank filed a petition for review questioning the Decision and Resolution of the NLRC before the Court of Appeals. The Ruling of the Court of Appeals Citing Dosch v. NLRC, the Court of Appeals held that Galanidas refusal to comply with the transfer orders did not warrant his dismissal. The appellate court ruled that the transfer from a regional office to the smaller Bacolod or Tagbilaran branches was effectively a demotion. The appellate court agreed that Allied Bank did not afford Galanida procedural due process because there was no hearing and no notice of termination. The Memo merely stated that the bank would issue a notice of termination but there was no such notice. [14]

The Court of Appeals affirmed the ruling of the NLRC in its Decision of 27 April 2000, thus: WHEREFORE, for lack of merit, the petition is DISMISSED and the assailed Decision of public respondent NLRC is AFFIRMED. SO ORDERED.

[15]

Allied Bank filed a motion for reconsideration which the appellate court denied in its Resolution of 8 August 2000. [16]

On 26 April 2001, Allied Bank appealed the appellate courts decision and resolution to the Supreme Court. Allied Bank prayed that the Supreme Court: (1) issue a temporary restraining order or writ of preliminary injunction ex parte to restrain the implementation or execution of the questioned Decision and Resolution; (2) declare Galanidas termination as valid and legal; (3) set aside the Court of Appeals Decision and Resolution; (4) make permanent the restraining order or preliminary injunction; (5) order Galanida to pay the costs; and (6) order other equitable reliefs. The Issues Allied Bank raises the following issues: 1. WHETHER UNDER THE FACTS PRESENTED THERE IS LEGAL BASIS IN PETITIONERS EXERCISE OF ITS MANAGEMENT PREROGATIVE. 2. WHETHER PRIVATE RESPONDENTS VIOLATIONS OF COMPANY RULES CONSTITUTE A GROUND TO WARRANT THE PENALTY OF DISMISSAL. 3. WHETHER UNDER THE FACTS PRESENTED, THERE IS LEGAL BASIS TO HOLD THAT ALLIED BANK AFFORDED PRIVATE RESPONDENT THE REQUIRED DUE PROCESS. 4. WHETHER UNDER THE FACTS, THERE IS LEGAL BASIS TO HOLD THAT PRIVATE RESPONDENT CANNOT RECOVER ANY MONETARY AWARD.[17]

In sum, Allied Bank argues that the transfer of Galanida was a valid exercise of its management prerogative. Allied Bank contends that Galanidas continued refusal to obey the transfer orders constituted willful disobedience or insubordination, which is a just cause for termination under the Labor Code. On the other hand, Galanida defended his right to refuse the transfer order. The memorandum for Galanida filed with this Court, prepared by Atty. Loreto M. Durano, again misquotedthe Courts ruling in Dosch v. NLRC, thus:

xxx His [Galanidas] refusal to transfer falls well within the ruling of the Supreme Court in Helmut Dosch vs. NLRC, et. al., 123 SCRA 296 (1983) quoted as follows: xxx Refusal to obey a transfer order cannot be considered insubordination where employee cited reason for said refusal, such as that of being away from the family.

[18]

The Ruling of the Court The petition is partly meritorious. Preliminary Matter: Misquoting Decisions of the Supreme Court The memorandum prepared by Atty. Durano and, worse, the assailed Decision of the Labor Arbiter, both misquoted the Supreme Courts ruling in Dosch v. NLRC. The Court held in Dosch: We cannot agree to Northwests submission that petitioner was guilty of disobedience and insubordination which respondent Commission sustained. The only piece of evidence on which Northwest bases the charge of contumacious refusal is petitioners letter dated August 28, 1975 to R.C. Jenkins wherein petitioner acknowledged receipt of the formers memorandum dated August 18, 1975, appreciated his promotion to Director of International Sales but at the same time regretted that at this time for personal reasons and reasons of my family, I am unable to accept the transfer from the Philippines and thereafter expressed his preference to remain in his position, saying: I would, therefore, prefer to remain in my position of Manager-Philippines until such time that my services in that capacity are no longer required by Northwest Airlines. From this evidence, We cannot discern even the slightest hint of defiance, much less imply insubordination on the part of petitioner. [19]

The phrase [r]efusal to obey a transfer order cannot be considered insubordination where employee cited reason for said refusal, such as that of being away from the family does not appear anywhere in the Dosch decision. Galanidas counsel lifted the erroneous phrase from one of the italicized lines in the syllabus of Dosch found in the Supreme Court Reports Annotated (SCRA). The syllabus of cases in official or unofficial reports of Supreme Court decisions or resolutions is not the work of the Court, nor does it state this

Courts decision. The syllabus is simply the work of the reporter who gives his understanding of the decision. The reporter writes the syllabus for the convenience of lawyers in reading the reports. A syllabus is not a part of the courts decision. A counsel should not cite a syllabus in place of the carefully considered text in the decision of the Court. [20]

In the present case, Labor Arbiter Almirante and Atty. Durano began by quoting from Dosch, but substituted a portion of the decision with a headnote from the SCRA syllabus, which they even underscored. In short, they deliberately made the quote from the SCRA syllabus appear as the words of the Supreme Court. We admonish them for what is at the least patent carelessness, if not an outright attempt to mislead the parties and the courts taking cognizance of this case. Rule 10.02, Canon 10 of the Code of Professional Responsibility mandates that a lawyer shall not knowingly misquote or misrepresent the text of a decision or authority. It is the duty of all officers of the court to cite the rulings and decisions of the Supreme Court accurately. [21]

Whether Galanida was dismissed for just cause We accord great weight and even finality to the factual findings of the Court of Appeals, particularly when they affirm the findings of the NLRC or the lower courts. However, there are recognized exceptions to this rule. These exceptions are: (1) when the findings are grounded on speculation, surmise and conjecture; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion in the appreciation of facts; (4) when the factual findings of the trial and appellate courts are conflicting; (5) when the Court of Appeals, in making its findings, has gone beyond the issues of the case and such findings are contrary to the admissions of both appellant and appellee; (6) when the judgment of the appellate court is premised on a misapprehension of facts or when it has failed to consider certain relevant facts which, if properly considered, will justify a different conclusion; (7) when the findings of fact are conclusions without citation of specific evidence on which they are based; and (8) when the findings of fact of the Court of Appeals are premised on the absence of evidence but are contradicted by the evidence on record. After a scrutiny of the records, we find that some of these exceptions obtain in the present case. [22]

The rule is that the transfer of an employee ordinarily lies within the ambit of the employers prerogatives. The employer exercises the prerogative to transfer an employee for valid reasons and according to the requirement of its [23]

business, provided the transfer does not result in demotion in rank or diminution of the employees salary, benefits and other privileges. In illegal dismissal cases, the employer has the burden of showing that the transfer is not unnecessary, inconvenient and prejudicial to the displaced employee. [24]

[25]

The constant transfer of bank officers and personnel with accounting responsibilities from one branch to another is a standard practice of Allied Bank, which has more than a hundred branches throughout the country. Allied Bank does this primarily for internal control. It also enables bank employees to gain the necessary experience for eventual promotion. The Bangko Sentral ng Pilipinas, in its Manual of Regulations for Banks and Other Financial Intermediaries, requires the rotation of these personnel. The Manual directs that the duties of personnel handling cash, securities and bookkeeping records should be rotated and that such rotation should be irregular, unannounced and long enough to permit disclosure of any irregularities or manipulations. [26]

[27]

[28]

Galanida was well aware of Allied Banks policy of periodically transferring personnel to different branches. As the Court of Appeals found, assignment to the different branches of Allied Bank was a condition of Galanidas employment. Galanida consented to this condition when he signed the Notice of Personnel Action. [29]

The evidence on record contradicts the charge that Allied Bank discriminated against Galanida and was in bad faith when it ordered his transfer. Allied Banks letter of 13 June 1994 showed that at least 14 accounting officers and personnel from various branches, including Galanida, were transferred to other branches. Allied Bank did not single out Galanida. The same letter explained that Galanida was second in line for assignment outside Cebu because he had been in Cebu for seven years already. The person first in line, Assistant Manager Roberto Isla, who had been in Cebu for more than ten years, had already transferred to a branch in Cagayan de Oro City. We note that none of the other transferees joined Galanida in his complaint or corroborated his allegations of widespread discrimination and favoritism. [30]

As regards Ms. Co, Galanidas letter of 16 June 1994 itself showed that her assignment to Cebu was not in any way related to Galanidas transfer. Ms. Co was supposed to replace a certain Larry Sabelino in the Tabunok branch. The employer has the prerogative, based on its assessment of the employees qualifications and competence, to rotate them in the various areas of its business operations to ascertain where they will function with maximum benefit to the company. [31]

Neither was Galanidas transfer in the nature of a demotion. Galanida did not present evidence showing that the transfer would diminish his salary, benefits or other privileges. Instead, Allied Banks letter of 13 June 1994 assured Galanida that he would not suffer any reduction in rank or grade, and that the transfer would involve the same rank, duties and obligations. Mr. Olveda explained this further in the affidavit he submitted to the Labor Arbiter, thus: 19. There is no demotion in position/rank or diminution of complainants salary, benefits and other privileges as the transfer/assignment of branch officers is premised on the role/functions that they will assume in the management and operations of the branch, as shown below: (a) The Branch Accountant, as controller of the branch is responsible for the proper discharge of the functions of the accounting section of the branch, review of documentation/proper accounting and control of transaction. As such, the accounting functions in the branch can be assumed by any of the following officers with the rank of: Senior Manager/Acctg.; Manager/ Acctg.; Senior Asst. Manager/Acctg.; Asst. Manager/Acctg.; Accountant or Asst. Accountant. xxx 20. The transfer/assignment of branch officer from one branch, to another branch/office is lateral in nature and carries with it the same position/rank, salary, benefits and other privileges. The assignment/transfer is for the officer to assume the functions relative to his job and NOT the position/rank of the officer to be replaced. There is also no basis for the finding that Allied Bank was guilty of unfair labor practice in dismissing Galanida. Unfair labor practices relate only to violations of the constitutional right of workers and employees to selforganization and are limited to the acts enumerated in Article 248 of the Labor Code, none of which applies to the present case. There is no evidence that Galanida took part in forming a union, or even that a union existed in Allied Bank. [32]

This leaves the issue of whether Galanida could validly refuse the transfer orders on the ground of parental obligations, additional expenses, and the anguish he would suffer if assigned away from his family. The Court has ruled on this issue before. In the case of Homeowners Savings and Loan Association, Inc. v. NLRC, we held: [33]

The acceptability of the proposition that transfer made by an employer for an illicit or underhanded purpose i.e., to defeat an employees right to self-organization, to rid himself of an undesirable worker, or to penalize an employee for union activities cannot be upheld is self-evident and cannot be gainsaid. The difficulty lies in the situation where no such illicit, improper or underhanded purpose can be ascribed to the employer, the objection to the transfer being grounded solely upon the personal inconvenience or hardship that will be caused to the employee by reason of the transfer. What then? This was the very same situation we faced in Phil. Telegraph and Telephone Corp. v. Laplana. In that case, the employee, Alicia Laplana, was a cashier at the Baguio City Branch of PT&T who was directed to transfer to the companys branch office at Laoag City. In refusing the transfer, the employee averred that she had established Baguio City as her permanent residence and that such transfer will involve additional expenses on her part, plus the fact that an assignment to a far place will be a big sacrifice for her as she will be kept away from her family which might adversely affect her efficiency. In ruling for the employer, the Court upheld the transfer from one city to another within the country as valid as long as there is no bad faith on the part of the employer. We held then: Certainly the Court cannot accept the proposition that when an employee opposes his employers decision to transfer him to another work place, there being no bad faith or underhanded motives on the part of either party, it is the employees wishes that should be made to prevail. Galanida, through counsel, invokes the Courts ruling in Dosch v. NLRC. Dosch, however, is not applicable to the present case. Helmut Dosch refused a transfer consequential to a promotion. We upheld the refusal because no law compels an employee to accept a promotion, and because the position Dosch was supposed to be promoted to did not even exist at that time. This left as the only basis for the charge of insubordination a letter from Dosch in which the Court found not even the slightest hint of defiance, much less xxx insubordination. [34]

[35]

[36]

Moreover, the transfer of an employee to an overseas post, as in the Dosch case, cannot be likened to a transfer from one city to another within the country, which is the situation in the present case. The distance from Cebu City to Bacolod City or from Cebu City to Tagbilaran City does not exceed the distance from Baguio City to Laoag City or from Baguio City to Manila, which the Court considered a reasonable distance in PT&T v. Laplana. [37]

[38]

The refusal to obey a valid transfer order constitutes willful disobedience of a lawful order of an employer. Employees may object to, negotiate and seek redress against employers for rules or orders that they regard as unjust or illegal. However, until and unless these rules or orders are declared illegal or improper by competent authority, the employees ignore or disobey them at their peril. For Galanidas continued refusal to obey Allied Banks transfer orders, we hold that the bank dismissed Galanida for just cause in accordance with Article 282 (a) of the Labor Code. Galanida is thus not entitled to reinstatement or to separation pay. [39]

[40]

[41]

Whether Galanidas dismissal violated the requirement of notice and hearing To be effective, a dismissal must comply with Section 2 (d), Rule 1, Book VI of the Omnibus Rules Implementing the Labor Code (Omnibus Rules), which provides: For termination of employment based on just causes as defined in Article 282 of the Labor Code: (i) A written notice served on the employee specifying the ground or grounds of termination, and giving said employee reasonable opportunity within which to explain his side. (ii) A hearing or conference during which the employee concerned, with the assistance of counsel if he so desires is given opportunity to respond to the charge, present his evidence, or rebut the evidence presented against him. (iii) A written notice of termination served on the employee indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination.

The first written notice was embodied in Allied Banks letter of 13 June 1994. The first notice required Galanida to explain why no disciplinary action should be taken against him for his refusal to comply with the transfer orders. On the requirement of a hearing, this Court has held that the essence of due process is simply an opportunity to be heard. An actual hearing is not necessary. The exchange of several letters, in which Galanidas wife, a lawyer with the City Prosecutors Office, assisted him, gave Galanida an opportunity to respond to the charges against him. [42]

The remaining issue is whether the Memo dated 8 September 1994 sent to Galanida constitutes the written notice of termination required by the Omnibus Rules. In finding that it did not, the Court of Appeals and the NLRC

cited Allied Banks rule on dismissals, quoted in the Memo, that, Notice of termination shall be issued by the Investigation Committee subject to the confirmation of the President or his authorized representative. The appellate court and NLRC held that Allied Bank did not send any notice of termination to Galanida. The Memo, with the heading Transfer and Reassignment, was not the termination notice required by law. [43]

We do not agree. Even a cursory reading of the Memo will show that it unequivocally informed Galanida of Allied Banks decision to dismiss him. The statement, please be informed that the Bank has terminated your services effective September 1, 1994 and considered whatever benefit, if any, that you are entitled [to] as forfeited xxx is plainly worded and needs no interpretation.The Memo also discussed the findings of the Investigation Committee that served as grounds for Galanidas dismissal. The Memo referred to Galanidas open defiance and refusal to transfer first to the Bacolod City branch and then to the Tagbilaran City branch. The Memo also mentioned his continued refusal to report for work despite the denial of his application for additional vacation leave. The Memo also refuted Galanidas charges of discrimination and demotion, and concluded that he had violated Article XII of the banks Employee Discipline Policy and Procedure. [44]

[45]

The Memo, although captioned Transfer and Reassignment, did not preclude it from being a notice of termination. The Court has held that the nature of an instrument is characterized not by the title given to it but by its body and contents. Moreover, it appears that Galanida himself regarded the Memo as a notice of termination. We quote from the Memorandum for Private Respondent-Appellee, as follows: [46]

The proceedings may be capsulized as follows: 1. On March 13, 1994 Private Respondent-Appellee filed before the Region VII Arbitration Branch a Complaint for Constructive Dismissal. A copy of the Complaint is attached to the Petition as Annex H; [47]

xxx 5. On September 8, 1994, Petitioner-Appellant issued him a Letter of Termination. A copy of said letter is attached to the Petition as Annex N;

6. Private Respondent-Appellee filed an Amended/ Supplemental Complaint wherein he alleged illegal dismissal. A copy of the Amended/Supplemental Complaint is attached to the Petition as Annex O; xxx (Emphasis supplied) [48]

The Memorandum for Private Respondent-Appellee refers to the Memo as a Letter of Termination. Further, Galanida amended his complaint for constructive dismissal to one for illegal dismissal after he received the Memo. Clearly, Galanida had understood the Memo to mean that Allied Bank had terminated his services. [49]

[50]

The Memo complied with Allied Banks internal rules which required the banks President or his authorized representative to confirm the notice of termination. The banks Vice-President for Personnel, as the head of the department that handles the movement of personnel within Allied Bank, can certainly represent the bank president in cases involving the dismissal of employees. Nevertheless, we agree that the Memo suffered from certain errors. Although the Memo stated that Allied Bank terminated Galanidas services as of 1 September 1994, the Memo bore the date 8 September 1994. More importantly, Galanida only received a copy of the Memo on 5 October 1994, or more than a month after the supposed date of his dismissal. To be effective, a written notice of termination must be served on the employee. Allied Bank could not terminate Galanida on 1 September 1994 because he had not received as of that date the notice of Allied Banks decision to dismiss him. Galanidas dismissal could only take effect on 5 October 1994, upon his receipt of the Memo. For this reason, Galanida is entitled to backwages for the period from 1 September 1994 to 4 October 1994. [51]

Under the circumstances, we also find an award of P10,000 in nominal damages proper. Courts award nominal damages to recognize or vindicate the right of a person that another has violated. The law entitles Galanida to receive timely notice of Allied Banks decision to dismiss him. Allied Bank should have exercised more care in issuing the notice of termination. [52]

WHEREFORE, the Decision of 27 April 2000 of the Court of Appeals in CA-G.R. SP No. 51451 upholding the Decision of 18 September 1998 of the NLRC in NLRC Case No. V-000180-98 is AFFIRMED, with the following MODIFICATIONS: 1) The awards of separation pay, moral damages and exemplary damages are hereby deleted for lack of basis;

2) Reducing the award of backwages to cover only the period from 1 September 1994 to 4 October 1994; and 3) Awarding nominal damages to private respondent for P10,000. This case is REMANDED to the Labor Arbiter for the computation, within thirty (30) days from receipt of this Decision, of the backwages, inclusive of allowances and other benefits, due to Potenciano L. Galanida for the time his dismissal was ineffectual from 1 September 1994 until 4 October 1994. Labor Arbiter Dominador A. Almirante and Atty. Loreto M. Durano are ADMONISHED to be more careful in citing the decisions of the Supreme Court in the future. SO ORDERED A.M. No. RTJ-03-1812

November 18, 2004

PABLITO R. SORIA, ET AL., complainants, vs. JUDGE FRANKLYN A. VILLEGAS, Regional Trial Court of Pagadian City, Branch 19, respondent.

RESOLUTION

DAVIDE, JR., C.J.: This is in connection with respondent's Second Motion for the Reconsideration of our Decision of 19 November 2003, which ordered respondent's dismissal from the service, with forfeiture of all retirement benefits excluding leave credits and vacation benefits, and with prejudice to employment in any branch of the government or any of its instrumentalities, including government-owned and controlled corporations. The ground for his dismissal from the service was his "continued refusal to comply with the lawful orders" of the Court because he did not comply with the two (2) directives of the OCA and the resolutions of the First Division of the Court of (1) 29 July 2002 which required him to comment on the complaint within ten days from notice; and explain why no disciplinary action should be taken against him for insubordination for failure to heed OCA's directives; (2) 4 December 2002 which reiterated the resolution of 29 July 2002; (3) 23 April 2003 which resolved "to require ANEW the said judge to SHOW CAUSE why he should not be disciplinarily dealt with or held in contempt for such failure and to COMPLY with the said resolution of July 29, 2002 requiring explanation." We ruled that respondent's failure to do so "constitutes gross disrespect to the lawful orders and directives bordering on willful contumacy," and "underscores his lack of respect for authority and a defiance for law and order which is the very core of his position."

On 13 August 2003, acting on complainants' letter of 18 July 2003 expressing their sentiments on the long continued non-compliance of respondent with the Court's show-cause resolution at the same time hoping for an expeditious resolution of this case in their favor, we resolved to REFER this case to the Office of the Court Administrator for evaluation, report and recommendation. The Office of the Court Administrator thereafter submitted its report and recommendation, dated 26 September 2003. It recommended that respondent (1) … be meted out the penalty of ONE YEAR SUSPENSION from office without pay effective immediately upon receipt of notice for gross misconduct and insubordination for continuously defying the orders of the Court; (2) … DIRECTED to file his comment to the complaint within five (5) days from notice or face arrest and detention until such time that he will comply; (3) … ordered to pay a fine of Five Thousand Pesos (P5,000.00) to be paid within ten days from notice hereof; (4) … be immediately DIVESTED of his position as Executive Judge of RTC, Pagadian City in accordance with Administrative Order No. 33-2003. xxx Deliberating on the case, the First Division adopted the findings and conclusion of the Office of the Court Administrator but disagreed with the recommended penalty. It ruled that the penalty should be DISMISSAL from the service with all its consequences. In light of the penalty determined by the First Division, the matter was referred to the Court En Banc pursuant to the revised resolution in A.M. No. 99-12-08-SC. The Court en banc accepted it in its Resolution of 18 November 2003. After deliberating thereon and reaching a conclusion sanctioning the First Division, the matter was assigned to the ponente for the writing of the decision. The decision was promulgated on 19 November 2003. A motion to reconsider it was denied with finality in the resolution of 25 May 2004. In his second motion for reconsideration, respondent begs us to reconsider the decision "in the spirit of the doctrine of the STARE DECISIS … taking into account the length of service of more than twenty (20) years he has served the Judiciary," and proceeds to discuss on stare decisis, thus: Respondent anchors his hypothesis on the very same jurisprudence Your Honors' have cited. With due respect, please allow the herein respondent to make the following observations: (a) In Davila vs. Generoso, [336 SCRA 576, 580 (200), citing Longboan vs. Polig, 186 SCRA 557, 561, (1990), the respondent Judge therein was required to comply the directives of the Honorable Court's directives, particularly in the cited Resolutions therein, more specifically, Resolution dated January 21, 1998, requiring him to show cause why he should not be dealt with disciplinarily or held in contempt for failure to comment on subject complaint of complainant Davila and to comply with the resolution of August 13, 1997, within ten (10) days from notice. The same was followed with a Resolution dated October 5, 1998, wherein the respondent judge was required to comply with the resolution of January 21, 1998, within ten (10) days from notice, under pain of appropriate disciplinary action, yet, he was still afforded one last chance and finally in a Resolution dated March 17, 1999, the respondent was required to show cause why he should not be dealt with more severely for failure to

comply with the Resolution, dated December 11, 1995, and to file the required comment within ten (10) days from notice. It is most respectfully noted that there were at least three (3) warnings given the respondent before he was finally handed the verdict of dismissal from service. (b) In Parane vs. Relosa, [238 SCRA 1, (1994)], the respondent likewise failed to heed the Honorable Court's directives and in the Resolution of August 4, 1994, the Court, wishing to afford respondent Judge another opportunity to explain himself, resolve thusly: "WHEREFORE, finding respondent Judge guilty of gross misconduct and insubordination in his continued failure to comply with the lawful orders of this Court, the Court hereby IMPOSES on the respondent Judge a FINE of Five Thousand Pesos (P5,000,00). Said respondent is still required to COMPLY with the resolution of 22 July 1993 within ten (10) days from receipt hereof, with a STERN WARNING that non-compliance therewith will be dealt with most severely as so herein above expressed. x x x" With respondent's continued defiance of the last Court directive, he was ultimately dismissed from the service on November 7, 1994. It is further noted that the respondent was afforded his final chance before the extreme penalty of dismissal from the service was handed down. (c) In the case of Guerrero vs. Deray [A.M. No. MTJ-02-1466, 10 Dec. 2002, citing Joseph vs. Abarquez, 261 SCRA 629 (1996), the respondent was found guilty of gross incompetence and inefficiency, gross misconduct and conduct prejudicial to the best interest of the service. The Honorable Court has meted upon the respondent the extreme penalty of dismissal because it was warranted by the circumstances, when it said: "In other words, indifference or defiance to the Court's orders or Resolutions may be punished with dismissal, suspension or fine as warranted by the circumstances." (d) In the case of Erlinda Alonto-Frayna vs. Judge Abdulmajid J. Astih [300 SCRA 199 (1998)], The Honorable Court found the respondent guilty of gross inefficiency and neglect of duty exacerbated by his audacious stance in defying the Court's orders. We have carefully examined the rollo of this case and we noticed that, first, our resolution of 23 April 2003 which required ANEW the respondent to show cause and to comply with the resolution of 29 July 2002 did not specify the period within which to do so. Second, the resolution of 13 August 2003 which noted the letter of complainants expressing their sentiments on the continued non-compliance of respondent with the show-cause resolution did not take any direct affirmative action against the respondent; it only referred "this case to the Office of the Court Administrator for evaluation, report and recommendation within thirty (30) days from notice hereof." In short, we did not warn the respondent of the consequences if he will fail to show cause and to comply with the resolution of 29 July 2002. By referring the case to the OCA for evaluation, report and recommendation, we could only have meant a declaration that respondent had waived the filing of the comment. Third, after the OCA submitted its evaluation, report and recommendation, we did not require the parties to manifest if they would submit the matter for decision on the basis of the pleadings heretofore filed. This is our policy and practice.

Fourth, respondent has in fact filed his compliance with the show-cause Resolution and Comment on the complaint in a pleading entitled COMMENT WITH PRAYER FOR INDULGENCE AND CLEMENCY FOR NOT COMPLYING ON TIME, dated 28 November 2003 and received by the First Division on 4 December and the Clerk of Court En Banc on 5 December 2003 before respondent received a copy of the decision of 19 November 2003. He received a copy of the decision on 2 December 2003 as admitted by him in his first Motion for Reconsideration. Fifth, respondent has served the judiciary for more than 20 years and there is no record whatsoever that he has been charged with any act of dishonesty, gross ignorance of law or any impropriety other than the instant case and A.M. No. RTJ-00-1526 (OCA vs. Franklyn A. Villegas), which was filed earlier than the instant case. In the resolution of 3 June 2004 in A.M. No. RTJ-00-1526, he was found guilty of two offenses, namely, undue delay in rendering a decision and violation of Supreme Court directives. He was fined in the amount of P20,000. In A.M. No. RTJ-00-1526, respondent claims that he failed to comply with two (2) OCA directives and six (6) resolutions of the Court requiring him to file his Comment and to show cause. He thus prays that since in this case only three resolutions of the Court were defied, he should be meted at least the same penalty as in A.M. No. RTJ-00-1526. In our En Banc decision of 03 February 2004 in A.M. No. 03-1515-MTJ (Dolores Imbang vs. Judge Deogracias del Rosario, MCTC Patnongon, Bugasong, Valderama, Antique), we meted the penalty of fine of P10,000 on respondent Judge for his failure to comply with many directives of the Office of the Court Administrator requiring him to file a comment on the Complaint and for failure to immediately resolve pending motions and to decide a case within the 90-day period, which constituted gross inefficiency. In that case the complaint was filed on 31 July 1998 yet. Judge Del Rosario was required to comment thereon by the OCA in its 1st Indorsement of 9 February 1999, but Judge Del Rosario did not comply with it despite several subsequent letters from the OCA, forcing the OCA to report the matter to the Court and to recommend that Judge Del Rosario be fined in the amount of P5,000 "for his obdurate defiance of the several directives of the Office of the Court Administrator"; considered to have waived his right to defend himself in said case; and be fined P2,000 for delaying the administration of justice by failing to decide Civil Case No. 318 entitled Dolores Imbang vs. Alice Guerra. In the del Rosario case, despite our conclusion that Judge Del Rosario's "failure to comply with the Court's directive to file his comment to the letter complaint against him constitutes a blatant display of his indifference to the lawful directives of the Court" and "gross misconduct and insubordination;" and his prior convictions in two administrative cases, we merely imposed upon him a fine of P10,000. He was further directed to show cause within 10 days from notice why he should not be dismissed from the service for his refusal to file his Comment as directed by the Court. While indeed a second motion for reconsideration is a prohibited pleading under the 1997 Rules of Civil Procedure, we have allowed it in certain cases. Besides, in administrative cases involving discipline of judges and court personnel, we have allowed second or even third motions for reconsideration whenever justified by the circumstances. In the instant case, and taking the foregoing observations, we have resolved to give due course to the second motion for reconsideration and to partly grant the relief prayed for. The penalty of dismissal from the service which we have imposed on respondent may seem, indeed, to be harsh. There were administrative cases of more serious nature where we have been less harsh. (Zarate vs. Judge Balderian, (A.M. No. MTJ-00-1261, 3 April 2000; 386 Phil. 1); (Guintu vs. Judge Lucero, (A.M. MTJ-93-794, 23 August 1996, 329 Phil. 704). Only last 10 September 2004, in Tamondong vs. Judge Marino de la Cruz, (A.M. No. 00-1-10-RTC) we merely imposed a fine of P40,000, despite the finding of "repeatedly failing to heed the Court's show cause orders, as well as the lawful directives of the OCA."

WHEREFORE, in light of the foregoing, the Second Motion for Reconsideration of respondent is hereby given due course, and is partly granted. The penalty of dismissal from the service imposed on respondent is hereby REDUCED to suspension for a period reckoned from the time respondent received a copy of the decision of 19 November 2003 until he shall re-assume office by virtue of this Resolution, which he must do within ten (10) days from notice of this Resolution. Respondent is further directed to pay, within thirty (30) days from notice of this Resolution, a fine of P50,000. SO ORDERED. Puno, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario and Garcia, JJ., concur. Panganiban, J., joins J. Santiago's dissent. Ynares-Santiago, J., see dissenting opinion. Corona, J., on leave.

DISSENTING OPINION YNARES-SANTIAGO, J.: With due respect, I dissent from the decision of the majority to partially grant the respondent's second motion for reconsideration and to reduce the penalty imposed on respondent from dismissal from the service to suspension for a period reckoned from the time respondent received a copy of the decision of 19 November 2003 until he shall re-assume office and to pay, within thirty (30) days from notice of this Resolution, a fine of P50,000.00. I maintain that the penalty of dismissal from the service imposed is warranted owing to the gravamen of respondent's misconduct. Neither good faith nor an allegedly long unblemished service in the judiciary can justify his administrative offense.1 For his refusal to heed not merely one but several directives issued by the Court, respondent offered the lame excuse that he thought he was merely being harassed and he believed that the complaint against him was filed "to influence the wheels of justice", which he could not countenance.2 Respondent further insists that he did not commit a deliberate act of ignoring the Court; rather his conduct should be "considered simply as an act of ignoring the complainants out of dismay, disbelief and emotional sensitivities." In short, his emotions "controlled" his acts.3 Therein lies the fatal absurdity in respondent's explanation, for he cannot ignore complainants without ignoring us. Indeed, respondent ignored not merely one but several of our directives. As a magistrate presiding over a court of law allegedly for over two (2) decades, respondent, more than anyone else, should know that acts are judged largely by their results and not by the underlying reasons or the motives proffered to justify their commission. No man may be punished for what he thinks. Cogitationis poenam nemo emeret.4 Respondent's personal beliefs that complainant's charges lacked basis are no excuse for him to ignore the Court's orders. Besides the basic equipment of possessing the requisite learning in the law, a magistrate must exhibit that hallmark judicial temperament of utmost sobriety5 and self-restraint which are indispensable qualities of every judge.6 A judge anywhere should be the last person to be perceived as a petty tyrant holding imperious sway over his domain. Such an image is, however, evoked by the

actuations of respondent judge in this case. It has time and again been stressed that the role of a judge in relation to those who appear before his court must be one of temperance, patience and courtesy.7 In recent case of Office of the Court Administrator v. Villegas,8 our attention was called to respondent's delay of almost fifteen (15) years in deciding Civil Case No. 1576 which had been pending in his sala since August 22, 1984. He was fined P1,000.00 during the course of the proceedings for "his continued failure to comply"9 with our directives. The fine was increased to P2,000.00 in a Resolution dated January 16, 2001. IN THE LIGHT OF THE FOREGOING, I vote to DENY the respondent's Second Motion for Reconsideration for lack of merit.