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G.R. No. 79690-707 February 1, 1989 ENRIQUE A. ZALDIVAR, petitioner, vs.

THE HONORABLE SANDIGANBAYAN and HONORABLE RAUL M. GONZALEZ, claiming to be and acting as Tanodbayan-Ombudsman under the 1987 Constitution, respondents. G.R. No. 80578 February 1, 1989 ENRIQUE A. ZALDIVAR, petitioner, vs. HON. RAUL M. GONZALES, claiming to be and acting as TanodbayanOmbudsman under the 1987 Constitution, respondent. RESOLUTION PER CURIAM: We have examined carefully the lengthy and vigorously written Motion for Reconsideration dated October 18, 1988 filed by counsel for respondent Raul M. Gonzalez, relating to the per curiam Resolution of the Court dated October 7, 1988. We have reviewed once more the Court's extended per curiam Resolution, in the light of the argument adduced in the Motion for Reconsideration, but must conclude that we find no sufficient basis for modifying the conclusions and rulings embodied in that Resolution. The Motion for Reconsideration sets forth copious quotations and references to foreign texts which, however, whatever else they may depict, do not reflect the law in this jurisdiction. Nonetheless, it might be useful to develop further, in some measure, some of the conclusions reached in the per curiam Resolution, addressing in the process some of the "Ten (10) Legal Points for Reconsideration," made in the Motion for Reconsideration. 1. In respondent's point A, it is claimed that it was error for this Court "to charge respondent [with] indirect contempt and convict him of direct contempt." In the per curiam Resolution (page 50), the Court concluded that "respondent Gonzalez is guilty both of contempt of court in facie curiae and of gross misconduct as an officer of the court and member of the bar." The Court did not use the phrase "in facie curiae" as a technical equivalent of "direct contempt," though we are aware that courts in the United States have sometimes used that phrase in speaking of "direct contempts' as "contempts in the face of the courts." Rather, the court sought to convey that it regarded the contumacious

acts or statements (which were made both in a pleading filed before the Court and in statements given to the media) and the misconduct of respondent Gonzalez as serious acts flaunted in the face of the Court and constituting a frontal assault upon the integrity of the Court and, through the Court, the entire judicial system. What the Court would stress is that it required respondent, in its Resolution dated 2 May 1988, to explain "why he should not be punished for contempt of court and/or subjected to administrative sanctions" and in respect of which, respondent was heard and given the most ample opportunity to present all defenses, arguments and evidence that he wanted to present for the consideration of this Court. The Court did not summarily impose punishment upon the respondent which it could have done under Section 1 of Rule 71 of the Revised Rules of Court had it chosen to consider respondent's acts as constituting "direct contempt." 2. In his point C, respondent's counsel argues that it was "error for this Court to charge respondent under Rule 139 (b) and not 139 of the Revised Rules of Court." In its per curiam Resolution, the Court referred to Rule 139 (b) of the Revised Rules of Court pointing out that: [R]eference of complaints against attorneys either to the Integrated Bar of the Philippines or to the Solicitor General is not mandatory upon the Supreme Court such reference to the Integrated Bar of the Philippines or to the Solicitor General is certainly not an exclusive procedure under the terms of Rule 139 (b) of the Revised Rules of Court, especially where the charge consists of acts done before the Supreme Court. The above statement was made by the Court in response to respondent's motion for referral of this case either to the Solicitor General or to the Integrated Bar of the Philippines under Rule 139 (b). Otherwise, there would have been no need to refer to Rule 139 (b). It is thus only necessary to point out that under the old rule, Rule 139, referral to the Solicitor General was similarly not an exclusive procedure and was not the only course of action open to the Supreme Court. It is well to recall that under Section 1 (entitled "Motion or complaint") of Rule 139, "Proceedings for the removal or suspension of attorneys may be taken by the Supreme Court, (1) on its own motion, or (2) upon the complaint under oath of another in writing" (Parentheses supplied). The procedure described in Sections 2 et seq. of Rule 139 is the procedure provided for suspension or disbarment proceedings initiated upon sworn complaint of another person, rather than a procedure required for proceedings initiated by the Supreme Court on its own motion. It is inconceivable that the Supreme Court would initiate motu proprio proceedings for which it did not find probable cause to proceed against an attorney. Thus, there is no need to refer a case to the Solicitor General, which referral is made "for investigation to

determine if there is sufficient ground to proceed with the prosecution of the respondent" (Section 3, Rule 139), where the Court itself has initiated against the respondent. The Court may, of course, refer a case to the Solicitor General if it feels that, in a particular case, further factual investigation is needed. In the present case, as pointed out in the per curiam Resolution of the Court (page 18), there was "no need for further investigation of facts in the present case for it [was] not substantially disputed by respondent Gonzalez that he uttered or wrote certain statements attributed to him" and that "in any case, respondent has had the amplest opportunity to present his defense: his defense is not that he did not make the statements ascribed to him but that those statements give rise to no liability on his part, having been made in the exercise of his freedom of speech. The issues which thus need to be resolved here are issues of law and of basic policy and the Court, not any other agency, is compelled to resolve such issues." In this connection, we note that the quotation in page 7 of the Motion for Reconsideration is from a dissentingopinion of Mr. Justice Black in Green v. United State. 1 It may be pointed out that the majority in Green v. United States, through Mr. Justice Harlan, held, among other things, that: Federal courts do not lack power to impose sentences in excess of one year for criminal contempt; that criminal contempts are not subject to jury trial as a matter of constitutional right; nor does the (US) Constitution require that contempt subject to prison terms of more than one year be based on grand jury indictments. In his concurring opinion in the same case, Mr. Justice Frankfurter said: Whatever the conflicting views of scholars in construing more or less dubious manuscripts of the Fourteenth Century, what is indisputable is that from the foundation of the United States the constitutionality of the power to punish for contempt without the intervention of a jury has not been doubted. The First Judiciary Act conferred such a power on the federal courts in the very act of their establishment, 1 State 73, 83, and of the Judiciary Committee of eight that reported the bill to the Senate, five member including the chairman, Senator, later to be Chief Justice, Ellsworth, had been delegates to the Constitutional Convention (Oliver Ellsworth, Chairman, William Paterson, Caleb Strong, Ricard Basett, William Few. 1 Annals of Cong 17). In the First Congress itself no less than nineteen member including Madison who contemporaneously introduced the Bill of Rights, had been delegates to the Convention. And when an abuse under this power manifested itself, and led Congress to define more explicitly the summary power vested in the courts, it did not remotely deny the existence of the power but merely defined the conditions for its exercise more clearly, in an Act

"declaratory of the law concerning contempts of court." Act of Mar. 2, 1831, 4 Stat 487. xxxxxxxxx Nor has the constitutionality of the power been doubted by this Court throughout its existence . In at least two score cases in this Court, not to mention the vast mass of decisions in the lower federal courts, the power to punish summarily has been accepted without question. ... 2 To say that a judge who punishes a contemnor judges his own cause, is simplistic at best. The judge who finds himself compelled to exercise the power to punish for contempt does so not really to avenge a wrong inflicted upon his own person; rather he upholds and vindicates the authority, dignity and integrity of the judicial institution and its claim to respectful behaviour on the part of all persons who appears before it, and most especially from those who are officers of the court. 3. In his point D, respondent counsel urges that it is error "for this Court to apply the "visible tendency" rule rather than the "clear and present danger" rule in disciplinary and contempt charges." The Court did not purport to announce a new doctrine of "visible tendency," it was, more modestly, simply paraphrasing Section 3 (d) of Rule 71 of the Revised Rules of Court which penalizes a variety of contumacious conduct including: "any improper conduct tending, directly or indirectly, to impede, obstruct or degrade the administration of justice." The "clear and present danger" doctrine invoked by respondent's counsel is not a magic incantation which dissolves all problems and dispenses with analysis and judgment in the testing of the legitimacy of claims to free speech, and which compels a court to exonerate a defendant the moment the doctrine is invoked, absent proof of impending apocalypse. The clear and present danger" doctrine has been an accepted method for marking out the appropriate limits of freedom of speech and of assembly in certain contexts. It is not, however, the only test which has been recognized and applied by courts. In Logunzad v. Vda. de Gonzales, 3 this Court, speaking through Mme. Justice Melencio-Herrera said: ...The right of freedom of expression indeed, occupies a preferred position in the "hierarchy of civil liberties" (Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 51 SCRA 191 [1963]. It is not, however, without

limitations. As held in Gonzales v. Commission on Elections, 27 SCRA 835, 858 [1960]: "From the language of the specific constitutional provision, it would appear that the right is not susceptible of any limitation. No law may be passed abridging the freedom of speech and of the press.The realities of life in a complex society preclude however, a literal interpretation. Freedom of expression is not an absolute. It would be too much to insist that all times and under all circumstances it should remain unfettered and unrestrained. There are other societal values that press for recognition." The prevailing doctrine is that the clear and present danger rule is such a limitation. Another criterion for permissible limitation on freedom of speech and of the press, which includes such vehicles of the mass media as radio, television and the movies, is the "balancing-of-interests test" (Chief Justice Enrique M. Fernando on the Bill of Rights, 1970 ed., p. 79). The principle "requires a court to take conscious and detailed consideration of the interplay of interests observable in a given situation or type of situation (Separate Opinion of the late Chief Justice Castro in Gonzales v. Commission on Elections, supra, p. 899). (Emphasis Supplied) 4 Under either the "clear and present danger" test or the "balancing-of-interest test," we believe that the statements here made by respondent Gonzalez are of such a nature and were made in such a manner and under such circumstances, as to transcend the permissible limits of free speech. This conclusion was implicit in the per curiamResolution of October 7, 1988. It is important to point out that the "substantive evil" which the Supreme Court has a right and a duty to prevent does not, in the instant case, relate to threats of physical disorder or overt violence or similar disruptions of public order. 5 What is here at stake is the authority of the Supreme Court to confront and prevent a "substantive evil" consisting not only of the obstruction of a free and fair hearing of a particular case but also the avoidance of the broader evil of the degradation of the judicial system of a country and the destruction of the standards of professional conduct required from members of the bar and officers of the courts. The "substantive evil" here involved, in other words, is not as palpable as a threat of public disorder or rioting but is certainly no less deleterious and more far reaching in its implications for society. 4. In his point H, respondent's counsel argues that it is error "for this Court to hold that intent is irrelevant in charges of misconduct." What the Court actually said on this point was:

Respondent Gonzalez disclaims an intent to attack and denigrate the Court. The subjectivities of the respondent are irrelevant so far as characterization of his conduct or misconduct is concerned. He will not, however, be allowed to disclaim the natural and plain import of his words and acts. It is, upon the other hand, not irrelevant to point out that the respondent offered no apology in his two (2) explanations and exhibited no repentance (Resolution, p. 7; footnotes omitted). The actual subjectivities of the respondent are irrelevant because such subjectivities (understood as pyschological phenomena) cannot be ascertained and reached by the processes of this Court. Human intent can only be shown derivatively and implied from an examination of acts and statements. Thus, what the Court was saying was that respondent's disclaimer of an intent to attack and denigrate the Court, cannot prevail over the plain import of what he did say and do. Respondent cannot negate the clear import of his acts and statements by simply pleading a secret intent or state of mind incompatible with those acts or statements. It is scarcely open to dispute that, e.g., one accused of homicide cannot successfully deny his criminal intent by simply asserting that while he may have inserted a knife between the victim's ribs, he actually acted from high motives and kind feelings for the latter. 5 In his point 1, respondent's counsel argues that it is error "for this Court to punish respondent for contempt of court for out of court publications." Respondent's counsel asks this Court to follow what he presents as alleged modern trends in the United Kingdom and in the United States concerning the law of contempt. We are, however, unable to regard the texts that he cites as binding or persuasive in our jurisdiction. The Court went to some length to document the state of our case law on this matter in its per curiam Resolution. There is nothing in the circumstances of this case that would suggest to this Court that that case law, which has been followed for at least half a century or so, ought to be reversed. 6. In his point J, respondent's counsel pleads that the imposition of indefinite suspension from the practice of law constitutes "cruel, degrading or inhuman punishment". The Court finds it difficult to consider this a substantial constitutional argument. The indefiniteness of the respondent's suspension, far from being "cruel" or "degrading" or "inhuman," has the effect of placing, as it were, the key to the restoration of his rights and privileges as a lawyer in his own hands. That sanction has the effect of giving respondent the chance to purge himself in his own good time of his contempt and misconduct by acknowledging such misconduct, exhibiting appropriate

repentance and demonstrating his willingness and capacity to live up to the exacting standards of conduct rightly demanded from every member of the bar and officer of the courts. ACCORDINGLY, the Court Resolved to DENY the Motion for Reconsideration for lack of merit. The denial is FINAL. The Court also NOTED the Ex-Parte Manifestation and Motion, dated October 25, 1988 and the Supplemental Manifestation, dated October 27, 1988, filed by respondent DIGEST 166 SCRA 316 Legal Ethics Contemptuous Language Duty of a Lawyer Zaldivar was the governor of Antique. He was charged before the Sandiganbayan for violations of the Anti-Graft and Corrupt Practices Act. Gonzales was the then Tanodbayan who was investigating the case. Zaldivar then filed with the Supreme Court a petition for Certiorari, Prohibition and Mandamus assailing the authority of the Tanodbayan to investigate graft cases under the 1987 Constitution. The Supreme Court, acting on the petition issued a Cease and Desist Order against Gonzalez directing him to temporarily restrain from investigating and filing informations against Zaldivar. Gonzales however proceeded with the investigation and he filed criminal informations against Zaldivar. Gonzalez even had a newspaper interview where he proudly claims that he scored one on the Supreme Court; that the Supreme Courts issuance of the TRO is a manifestation theta the rich and influential persons get favorable actions from the Supreme Court, [while] it is difficult for an ordinary litigant to get his petition to be given due course. Zaldivar then filed a Motion for Contempt against Gonzalez. The Supreme Court then ordered Gonzalez to explain his side. Gonzalez stated that the statements in the newspapers were true; that he was only exercising his freedom of speech; that he is entitled to criticize the rulings of the Court, to point out where he feels the Court may have lapsed into error. He also said, even attaching notes, that not less than six justices of the Supreme Court have approached him to ask him to go slow on Zaldivar and to not embarrass the Supreme Court. ISSUE: Whether or not Gonzalez is guilty of contempt.

HELD: Yes. The statements made by respondent Gonzalez clearly constitute contempt and call for the exercise of the disciplinary authority of the Supreme Court. His statements necessarily imply that the justices of the Supreme Court betrayed their oath of office. Such statements constitute the grossest kind of disrespect for the Supreme Court. Such statements very clearly debase and degrade the Supreme Court and, through the Court, the entire system of administration of justice in the country. Gonzalez is entitled to the constitutional guarantee of free speech. What Gonzalez seems unaware of is that freedom of speech and of expression, like all constitutional freedoms, is not absolute and that freedom of expression needs on occasion to be adjusted to and accommodated with the requirements of equally important public interests. One of these fundamental public interests is the maintenance of the integrity and orderly functioning of the administration of justice. There is no antinomy between free expression and the integrity of the system of administering justice. Gonzalez, apart from being a lawyer and an officer of the court, is also a Special Prosecutor who owes duties of fidelity and respect to the Republic and to the Supreme Court as the embodiment and the repository of the judicial power in the government of the Republic. The responsibility of Gonzalez to uphold the dignity and authority of the Supreme Court and not to promote distrust in the administration of justice is heavier than that of a private practicing lawyer. Gonzalez is also entitled to criticize the rulings of the court but his criticisms must be bona fide. In the case at bar, his statements, particularly the one where he alleged that members of the Supreme Court approached him, are of no relation to the Zaldivar case. The Supreme Court suspended Gonzalez indefinitely from the practice of law.

ROSAURO PARAGAS, Petitioner, v. FERNANDO A. CRUZ, Judge of the Court of First Instance of Caloocan City, THE CITY FISCAL OF CALOOCAN CITY and ELPO (EL PORVENIR RUBBER PRODUCTS, INC.,) respondents. SYLLABUS 1. CONTEMPT; DISRESPECTFUL LANGUAGE IN PLEADINGS CONSTITUTE DIRECT CONTEMPT. Threats and disrespectful language contained in pleadings filed in

court are constitutive of direct contempt. 2. ID.; ID.; REFERENCE IN PLEADINGS TO RECENT KILLINGS AS THREAT TO COURT; CASE AT BAR. In the case at bar, the reference in the pleading filed by an attorney to recent killings of employees in the court premises is considered but a covert threat upon the members of the Court and is more deplorable because it was made by a member of the bar. RESOLUTION REYES, J.B.L., J.: In asking for reconsideration of this Courts dismissal of his petition for certiorari in the above-entitled case, Atty. Jeremias T. Sebastian, acting as counsel de parte for petitioner Rosauro Paragas, stated the following in his written motion, filed on May 22, 1965:jgc:chanrobles.com.ph " `The petitioner respectfully prays for a reconsideration of the resolution of this Honorable Court dated April 20, 1965 on the ground that it constitutes a violation of Section 14 of Rule 112 of the Rules of Court promulgated by this very Hon. Supreme Court, and on the further ground that it is likewise a violation of the most important right in the Bill of Rights of the Constitution of the Philippines, a culpable violation which is a ground for impeachment. . . . The rule of law in a democracy should always be upheld and protected by all means, because the rule of law creates and preserves peace and order and gives satisfaction and contentment to all concerned. But when the laws and the rules are violated, the victims resort, sometimes, to armed force and to the ways of the cave-men! We do not want Verzosa and Reyes repeated again and again, killed in the premises of the Supreme Court and in those of the City Hall of Manila. Educated people should keep their temper under control at all time; But justice should be done to all concerned to perpetuate the very life of Democracy on the face of the earth."cralaw virtua1aw library Considering the foregoing expressions to be derogatory to its dignity, this Court, by Resolution of June 2, 1965, after quoting said statements, required Atty. Sebastian to show cause why administrative action should not be taken against him. On June 18, 1965, counsel filed an "explanatory memorandum" stating:jgc:chanrobles.com.ph "When we said that the said violation is a ground for impeachment, the undersigned did not say that he would file impeachment proceedings against the

Justices who supported the resolution. We said only what we said. The task of impeaching the highest Justices in this country is obviously not the task for a common man, like the undersigned; it is a herculean task which only exceptional men, like Floor Leader Jose Laurel Jr., can do. In addition to this, we do not have the time, the means and the strength for this purpose. "The assertion that "But when the laws and the rules are violated, the victims resort sometimes, to armed force and to the ways of the cave-men! We do not want Verzosa and Reyes repeated again and again, killed in the premises of the Supreme Court and in those of the City Hall of Manila, is only a statement of fact and of our wish. We learn from observation that when the laws and the rules are violated, the victims, sometimes, resort to armed force and to the ways of the cave-men, as shown in the case of Luis M. Taruc and in the case of Jesus Lava, both of whom went to the mountains when they were not allowed to take their seats in the House of Representatives and, according to the newspapers, one was charged with murder and was found guilty. It was only recently that Jesus Lava surrendered to the authorities. We had this said recollection when we wrote the underlined passage mentioned in this paragraph. While writing that BRIEF MOTION FOR RECONSIDERATION, the thought of Verzosa and Reyes flashed across the mind of the undersigned as the shooting of those two government employees must have resulted from some kind of dissatisfaction with their actuations while in office. We stated or the undersigned stated that we are against the repetition of these abominable acts that surely disturbed the peace and order of the community. Shall the undersigned be punished by this Honorable Supreme Court only for telling the truth, for telling what happened before in this country? Our statement is clear and unmistakable, because we stated "We do not want Verzosa and Reyes repeated . . .." The intention of the undersigned is likewise clear and unmistakable; he is against the repetition of this acts of subversion and hate!" We find the explanation submitted to be unsatisfactory. The expressions contained in the motion for reconsideration, previously quoted, are plainly contemptuous and disrespectful, and the reference to the recent killing of two employees is but a covert threat upon the members of the Court. That such threats and disrespectful language contained in a pleading filed in Court are constitutive of direct contempt has been repeatedly decided (Salcedo v. Hernandez, 61 Phil. 724; People v. Varturanza, 52 Off. Gaz., 769; Medina v. Rivera, 66 Phil. 151; De Joya v. Court of First Instance of Rizal, 99 Phil., 907; Sison v. Sandejas, L-9270, April 29, 1959; Lualhati v. Albert, 57 Phil. 86). What makes the present case more deplorable is that the guilty party is a member of the bar; for, as remarked in People v. Carillo, 77 Phil. 580 "Counsel should conduct himself towards judges who try his cases with their courtesy that all have a right to expect. As an officer of the Court, it is his sworn and moral duty to help build and not destroy unnecessarily that high esteem and regard towards the courts so essential to the proper administration of

justice."cralaw virtua1aw library "It is right and plausible that an attorney in defending the cause and rights of his client should do so with all the fervor and energy of which he is capable, but it is not, and never will be so for him to exercise said right by resorting to intimidation or proceeding without the propriety and respect which the dignity of the courts require." (Salcedo v. Hernandez, [In re Francisco], 61 Phil. 729) Counsels disavowal of any offensive intent is of no avail, for it is a well -known and established rule that defamatory words are to be taken in the ordinary meaning attached to them by impartial observers. "A mere disclaimer of any intentional disrespect by appellant is no ground for exoneration. His intent must be determined by a fair interpretation of the languages by him employed. He can not escape responsibility by claiming that his words did not mean what any reader must have understood them as meaning" (In re Franco, 67 Phil. 313) WHEREFORE, Atty. Jeremias T. Sebastian is hereby found guilty of direct contempt, and sentenced to pay a fine of P200.00 within ten days from notice hereof, or, in case of default to suffer imprisonment not exceeding ten (10) days. And he is warned that a subsequent repetition of the offense will be more drastically dealt with. Bengzon, C.J., Bautista Angelo, Concepcion, Paredes, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar, JJ., concur. Barrera, J., is on leave.

Issue: Whether or not Atty. Sebastian is administratively liable for his actions/language.

Held: The expressions contained in the motion for reconsideration penned by the counsel of the petitioner are plainly contemptuous and disrespectful and he is hereby guilty of direct contempt of court.

As remarked in People vs. Carillo: Counsel should conduct himself towards the judges who try his cases with that courtesy all have a right to expect. As an officer of the court, it is his sworn and moral duty to help build and not destroy unnecessarily that high esteem and regard towards the courts so essential to the proper administration of justice.

It is right and plausible that an attorney, in defending the cause and rights of his client, should do so with all the fervor and energy of which he is capable, but it is not, and never will be so, for him to exercise said right by resorting to intimidation or proceeding without the propriety and respect which the dignity

DIGEST Paragas vs. Cruz Post under case digests, Legal Ethics at Thursday, February 23, 2012 Posted by Schizophrenic Mind Facts: In asking for reconsideration of the Courts dismissal of his petition for certiorari in the present case, counsel for the petitioner, Atty. Jeremias Sebastian, used derogatory expressions against the dignity of the Court in the language of his motion for reconsideration.

of the courts require.

IN THE MATTER OF ATTORNEY LOPE E. ADRIANO Member of the Philippine Bar. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. REMIGIO ESTEBIA, accused-appellant. SANCHEZ, J.: Once again, this Court is confronted with the unwanted task of ascertaining whether certain acts and conduct of a member of the Bar deserve disciplinary action. The problem arose because of facts that follow:

One Remigio Estebia was convicted of rape by the Court of First Instance of Samar, 1 and sentenced to suffer the capital punishment. His case came up before this Court on review. On December 14, 1966, Lope E. Adriano, a member of the Bar, was appointed by this Court as Estebia's counselde oficio. In the notice of his appointment, Adriano was required to prepare and file his brief within thirty days from notice. He was advised that to enable him to examine the case, the record would be at his disposal. Adriano received this notice on December 20, 1966. On January 19, 1967, Adriano sought for a 30-day extension to file appellant's brief in mimeographed form. On February 18, Adriano again moved for a 20-day extension (his second). This was followed by a third filed on March 8, for fifteen days. And a fourth on March 27, also for fifteen days. He moved for a "last" extension of ten days on April 11. On April 21, he even sought a special extension of five days. All these motions for extension were granted. The brief was due on April 26, 1967. But no brief was filed. On September 25, 1967, Adriano was ordered to show cause within ten days from notice thereof why disciplinary action should not be taken against him for failure to file appellant's brief despite the lapse of the time therefor. Adriano did not bother to give any explanation. For failing to comply with the September 25, 1967 resolution, this Court, on October 3, 1968, resolved to impose upon him a fine of P500 payable to this Court within fifteen days from notice with a warning that upon further noncompliance with the said resolution of September 25, 1967 within the same period of fifteen days, "more drastic disciplinary action will be taken against him." Still, counsel paid no heed. Finally, on December 5, 1968, this Court ordered Adriano to show cause within ten days from notice thereof why he should not be suspended from the practice of law "for gross misconduct and violation of his oath of office as attorney." By express order of this Court, the resolution was personally served upon him on December 18, 1968. He ignored the resolution. Upon the facts just narrated, we now pass judgment. 1. By specific authority, this Court may assign an attorney to render professional aid to a destitute appellant in a criminal case who is unable to employ an attorney. Correspondingly, a duty is imposed upon the lawyer so assigned "to render the required service." 2 A lawyer so appointed "as counsel for an indigent prisoner", our Canons of Professional Ethics demand, "should always exert his best efforts" in the indigent's behalf. 3

No excuse at all has been offered for non-presentation of appellant's brief. And yet, between December 20, 1966, when he received notice of his appointment, and December 5, 1968, when the last show cause order was issued by this Court, more than sufficient time was afforded counsel to prepare and file his brief de oficio. The death sentence below imposed was upon a plea of guilty. The record of the proceedings leading to the lower court's sentence consists of but 31 pages. Counsel had the record since January 19, 1967. In fact, in his third motion for extension of time, he manifested that the drafting of apellant's brief "is more than half-way through" and that "additional time is needed to review, effectuate the necessary corrections, put in final form and print the said brief." In his motion for fourth extension, he intimated that the preparation of the brief "is almost through" and that "additional time is needed to redraft and rehash some significant portions of said brief and have the same stencilled and mimeographed upon completion of a definitive text." His motion for last (fifth) extension of time came with the excuse that he "suddenly got sick (influenza) in the course of redrafting and rehashing some significant portions of said brief, which ailment hampered and interrupted his work thereon for sometime." Finally, in his "Special Extension of Time" to file brief, he claimed that he needed only five days from April 21, 1967 to put said brief in final form and have the same stencilled and mimeographed.lawphi1.nt In the face of the fact that no brief has ever been filed, counsel's statements in his motions for extension have gone down to the level of empty and meaningless words; at best, have dubious claim to veracity. It is true that he is a court-appointed counsel. But we do say that as such counsel de oficio, he has as high a duty to the accused as one employed and paid by defendant himself. Because, as in the case of the latter, he must exercise his best efforts and professional ability in behalf of the person assigned to his care. His is to render effective assistance. The accused defendant expects of him due diligence, not mere perfunctory representation. We do not accept the paradox that responsibility is less where the defended party is poor. It has been said that courts should "have no hesitancy in demanding high standards of duty of attorneys appointed to defend indigent persons charged with crime." 4 For, indeed, a lawyer who is a vanguard in the bastion of justice is expected to have a bigger dose of social conscience and a little less of self interest. Because of this, a lawyer should remain ever conscious of his duties to the indigent he defends. Worth remembering is the 1905 case of In the matter of Jose Robles Lahesa. 5 He was counsel de oficio before the Supreme Court in two cases: one for robo en cuadrilla and the other for homicide. He failed to take any action in behalf of the defendants in both eases. This Court imposed upon him a fine of P200. Significant is the pronouncement we there made that: "This court should exact from its officers and subordinates the most scrupulous performance of their official duties, especially when negligence in the performance of those duties necessarily result in delays in the prosecution of criminal cases and the

detention of accused persons pending appeal." The validity of the foregoing observation remains to the present day. 6 It applies to the present case. Here, appellant was without brief since December 20, 1966. The effect of this long delay need not be essayed. We, therefore, find that Attorney Lope E. Adriano has violated his oath that he will conduct himself as a lawyer according to the best of his "knowledge and discretion". 2. An attorney's duty of prime importance is "[t]o observe and maintain the respect due to the courts of justice and judicial officers. The first Canon of the Code of Ethics enjoins a lawyer "to maintain towards the Courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance." By the oath of office, the lawyer undertook to "obey the laws as well as the legal orders of the duly constituted authorities." In People vs. Carillo, 8 this Court's pointed observation was that as an officer of the court, it is a lawyer's "sworn and moral duty to help build and not destroy unnecessarily that high esteem and regard towards the courts so essential to the proper administration of justice." Here, we have a clear case of an attorney whose acts exhibit willful disobedience of lawful orders of this Court. A cause sufficient is thus present for suspension or disbarment. 9 Counsel has received no less than three resolutions of this Court requiring compliance of its orders. To be recalled is that on September 25, 1967, this Court directed him, in ten days from notice, to show cause why disciplinary action should not be taken against him for his failure to file appellant's brief despite the lapse of the time therefor. Nothing was done by counsel for over a year. To impress upon counsel the gravity of his repeated failure to obey this Court's orders, on October 3,1968, a fine of P500 was clamped upon him. He was directed to pay that fine in ten days. He was in that order also required to file his brief in fifteen days. He was warned that more drastic disciplinary action would be taken upon his failure to do either. Still he remained unmoved. Then, this Court issued the peremptory order of December 5, 1968 commanding him to show cause within ten days from notice thereof why he should not be suspended from the practice of law for gross misconduct and violation of his oath of office. The Court made it certain that this order would reach him. He personally acknowledged receipt thereof. He has not paid the fine. He has done nothing. This is 1969. No brief has as yet been filed. And this, inspite of the fact that as early as March 27, 1967, when he moved for a fourth extension of time to file his brief de oficio, he represented to this Court that all that was needed was to redraft and to rehash some significant portions of the brief which was almost through and to have the same stencilled and mimeographed upon completion of a definitive text.

Disrespect is here present. Contumacy is as patent. Disciplinary action is in order. Controlling here is the 1961 decision In the Matter of Atty. Filoteo Dianala Jo. 10 There, as here, counsel failed to file appellant's brief (in a criminal case) despite extensions of time granted him by this Court. Likewise, this Court issued a show-cause order why disciplinary action should not be taken against him. The explanation was considered unsatisfactory. This Court imposed a fine of P50 payable in ten days from notice. Attorney Dianala Jo did not pay that fine. Came the subsequent resolution of this Court advising him to pay the fine, otherwise, he would be arrested and confined to jam. This warning was not heeded. On November 18, 1960, the Court resolved to give him ten days from notice within which to explain why he should not be suspended from the practice of law. Despite receipt of this notice, he did not care to explain his behaviour which this Court considered as "consumacy and unwillingness to comply with the lawful orders of this Court of which he is an officer or to conduct himself as a lawyer should, in violation of his oath of office." He was suspended from the practice of law for three months. In the present case, counsel's pattern of conduct, it would seem to us, reveals a propensity on the part of counsel to benumb appreciation of his obligation as counsel de oficio and of the courtesy and respect that should be accorded this Court. For the reasons given, we vote to suspend Attorney Lope E. Adriano from the practice of law throughout the Philippines for a period of one (1) year. Let a copy of this resolution be attached to the personal record, in this Court, of Lope E. Adriano as member of the Bar. So ordered. ROMULO SJ TOLENTINO, State Prosecutor and Acting Provincial Prosecutor of Camarines Sur, complainant, vs.JUDGE ALFREDO A. CABRAL, Regional Trial Court, Branch 30, San Jose, Camarines Sur, respondent. DECISION MENDOZA, J.: This is a complaint[1] filed by State Prosecutor and Acting Provincial Prosecutor of Camarines Sur Romulo SJ Tolentino against Judge Alfredo A. Cabral of the Regional Trial Court, Branch 30, San Jose, Camarines Sur, for grave abuse of discretion, gross ignorance of the law, grave abuse of authority, violations of Canons 1, 2, and 3 of the Code of Judicial Conduct, rendering unjust orders, and

grave misconduct in connection with the trial of Criminal Case No. T-1417 entitled "People v. Roderick Odiamar." The facts are as follows: Roderick Odiamar was charged with rape upon the complaint of Cecille Buenafe before the sala of herein respondent judge. On October 24, 1994, he filed a motion for bail, which the prosecution opposed. In an order, dated March 24, 1995, respondent judge granted bail stating that the evidence against the accused was not strong.[2] On April 19, 1995, counsel for the accused filed an ex-parte motion for the confinement of the accused in a hospital on the ground that he was suffering from "Type I insulin dependent diabetes mellitus." On the same date, respondent judge granted the said motion, at the same time setting a hearing on April 26, 1995 for the purpose of determining the status of the illness of the accused and the nature and duration of his treatment. Complainant was furnished a copy of the order setting the motion for hearing. Thus, even as he failed to appear, the hearing proceeded. Dr. Benjamin Florendo testified, after which respondent judge issued an order, dated May 5, 1995, confirming the hospitalization of the accused. The records further show that on June 19, 1995, respondent judge issued an order amending his March 24, 1995 order granting bail in order to correct some clerical and typographical errors. The records of the case were then transmitted to the RTC, Branch 58, San Jose, Camarines Sur presided over by Judge Policarpio Camano, Jr. But, Judge Camano, Jr. inhibited himself, for which reason the records were returned to the RTC, Branch 30 of respondent judge.[3] Prior to the said transfer, the prosecution filed several motions, namely, Motion to Recall and Invalidate Order of March 24, 1995 granting bail, Motion to Recall and/or Reconsider Order of May 5, 1995 confirming the hospitalization of the accused, and Motion for Clarification. In an order, dated June 14, 1996, respondent judge denied the first two motions for lack of merit but took no action on the other motions filed by the prosecution, to wit, Motion for Clarification, Motion to Resolve Pending Motions, and its Supplemental Motion. Respondent judge considered the motions to be mere reiterations of the two motions denied by him. On June 26, 1996, respondent judge ordered the release of the accused from detention.[4] Complainant then filed this complaint, alleging that the order of March 24, 1995 of respondent judge, which granted bail to the accused, was carelessly prepared, if not ghostwritten, because of its "incredible reasoning, grammatical,

and clerical errors"; that the belated efforts of respondent judge to correct the alleged typographical errors in his order of June 19, 1995, which substantially changed the meaning of the order granting bail, was resorted to in order to conceal his negligence and partiality; that the factual findings were arbitrary and partial to the accused; and that the conclusions were based on misapplied, misunderstood, and overlooked facts and circumstances, such as the intentional omissions of the pertinent testimonies of witnesses, which would alter the result of the order if they were considered.[5] Moreover, complainant points out that respondent judge granted the request of the accused for hospitalization merely on the basis of an ex-parte motion which should have been denied for being a mere scrap of paper. Although notice was later sent to the prosecution, complainant claims that he was not able to attend the hearing on April 26, 1995, because he received the notice on the same day the hearing was held. Respondent judge thereafter issued his order of May 5, 1995 confirming the order for the hospitalization of the accused.[6] Complainant further alleges that the resolution of the prosecutions several motions were made beyond the reglementary period. As regards the bail granted to the accused, complainant claims that the amount of P30,000.00 fixed by respondent judge is only 15% of the recommended amount of P200,000.00 in the 1996 Bail Bond Guide; that the bail was approved without registration in the Provincial Assessors Office; and that when apprised of the need for registration, respondent judge, instead of cancelling the bond, issued an order, dated June 14, 1996, requiring the bondsman to register the same. Finally, complainant makes much of the detachment of certain pages of the records in Criminal Case No. T-1417 (pages 2, 17, 41, 44, 47, 50, 53, 58, 63, 66, 69, and 73) and the error in pagination of pages 525 and 585. These, according to complainant, raise a suspicion that the records have been tampered with or altered. Complainant contends that the foregoing acts complained of constitute bad faith, partiality, and bias on the part of respondent. On the other hand, respondent judge denies the charges against him and alleges the following: He issued the March 24, 1995 order granting bail because the prosecution failed to show that the evidence against the accused was strong. The testimony of the offended party in the criminal case, given on cross-examination, casts doubts on her claim that she was sexually abused through force and coercion. Respondent judge relied on the testimony of the examining physician given on cross-

examination that it was possible that the lacerations on the hymen of the offended party had been caused a month, six months, or even one year, before the alleged rape.[7] Respondent judge vehemently denies complainants allegation that his order granting bail was ghostwritten. While there may have been grammatical errors in the order, he claims that the same were committed by an aide whom he had asked to type the order. But, he said, he subsequently amended his order to correct the typographical errors. With respect to allegations that respondent judge omitted certain material facts in his order granting bail in order to favor the accused, respondent judge states that he is not really required to quote everything in the transcripts, but that he is at liberty to include or disregard testimony which he thought was "insignificant, irrelevant, immaterial, incredible, [or] absurd." As regards his order of April 19, 1995 granting the request of the accused to be ordered hospitalized, respondent judge explains that the accused is a "Type I insulin dependent" diabetic person, any delay in the treatment of whom could be fatal. Hence, for humanitarian reasons, he decided to "act now and investigate later." Respondent judge claims that the prosecution was given a copy of the ex-parte motion, as well as the April 19, 1995 order setting the hearing on the motion for hospitalization. However, despite notice to it, the prosecution did not attend the hearing on April 26, 1995. He alleges that because medical evidence presented during the hearing was uncontradicted, he issued on May 5, 1995 his order confirming his previous order for the confinement of the accused in the hospital. On the alleged delay in resolving the prosecutions Motion to Recall and Invalidate Order of March 24, 1995 and Motion to Recall and/or Reconsider Order of May 5, 1995, respondent judge states that the delay was due to the fact that the case stayed in the RTC, Branch 58, presided by Judge Policarpio Camano, Jr. from April 10, 1995 until April 15, 1996, when the records were returned to respondents sala at Branch 30, because Judge Camano, Jr. had inhibited himself from the case. But, respondent claims, 60 days after receipt of the records, he resolved the two motions in an order dated June 14, 1996. Relative to the alleged improper posting of bond, respondent judge claims that he required the bondsman to comply with the registration requirement instead of ordering the bonds cancellation because the defect was only formal and that he could not have been guilty of violation of the 1996 Bail Bond Guide because he fixed the amount of the bail prior to the promulgation of said Bail Bond Guide. On the other hand, the fact that the accused was ill, coupled with the fact that the prosecution did not present strong evidence to prove his guilt, rendered the probability of flight remote, according to respondent judge.

With reference to the alleged detaching of pages of the criminal case, respondent judge argues that he has no supervision over the Clerk of Court of RTC, Branch 58 and of the Municipal Circuit Trial Court of San Jose, Camarines Sur where the case originated. On the other hand, the error in pagination was the result of the mistakes of an overburdened utility worker in the court.[8] Respondent judge filed counter-charges against complainant for breach of Code of Professional Responsibility consisting of the following: 1. violation of Canon 10, Rule 10.02 (knowingly misguiding or misrepresenting the contents of a paper); 2. violation of Canon 10, Rule 10.01 (doing falsehood in court, misleading the court); and 3. violation of Canon 11, Rule 11.03 (for using offensive and menacing language before the court). Respondent judge claims that complainant deliberately and maliciously distorted some of his orders by misrepresenting their contents, thus- 1. The order of June 14, 1996 in which it was stated: Now going over the grounds stated in the first motion, the court believes that the same are not well-founded and meritorious. Rightly so, because they are anchored on the misappreciation of evidence and on clerical, if not, typographical errors. . . . According to respondent judge, complainant made it appear that the judge had admitted misappreciating the evidence of the prosecution in granting bail. 2. Likewise, respondent judge allegedly admitted that a court aide tampered with or altered the draft of the order granting bail. However, what respondent judge said in his order, dated June 19, 1995, correcting alleged errors in his order, dated March 24, 1995, granting bail, was the following: For utilizing an aide to type the order dated March 24, 1995 due to the volume of work of the stenographers as a consequence of the morning and afternoon hearings, errors were committed consisting of an omission of words or a word, misspelling and other clerical mistakes. ...

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3. Complainant misled the court when he stated in his Motion to Resolve Pending Motions, dated March 29, 1996, that the counter-affidavits of accused and his witness were attached to said motion when this was not so, as there were no such counter-affidavits in the records of the case. 4. Lastly, complainant in his Final Manifestation, dated June 20, 1996, stated: The PEOPLE OF THE PHILIPPINES, by the undersigned State Prosecutor and Acting Provincial Prosecutor on Case, to this Honorable Court respectfully manifests that should there be no favorable court action before the end of June 1996 . . . the undersigned will be constrained to file the necessary complaint before the Honorable Supreme Court . . . I. The Office of the Court Administrator recommends that respondent judge be found guilty of the charges against him. On April 19, 1999, however, complainant filed a Manifestation stating that the complaint against respondent judge has been rendered moot and academic by the decision of this Court in People v. Cabral[9] annulling the March 24, 1995 order granting bail of respondent judge. Hence, the preliminary question is whether, as a result of the decision in the aforesaid case for certiorari, this case has become moot and academic. We hold that the decision in the certiorari case has not in any way rendered this administrative case moot and academic. To the contrary, we think that because of that decision finding respondent judge guilty of grave abuse of discretion in issuing his order of March 24, 1995, there is more reason to proceed with the instant case to determine whether he is administratively liable. Grave abuse of discretion may constitute serious misconduct warranting discipline by this Court. Moreover, as this Court has said: Administrative actions cannot be made to depend upon the will of every complainant who may, for one reason or another, condone a detestable act. The Supreme Court does not, as a matter of course, dismiss administrative cases against members of the Bench on account of withdrawal of charges.[10] II. We thus proceed to determine whether respondent judge is guilty of the charges leveled against him, warranting the imposition of administrative sanctions.

Re: Order of March 24, 1995 granting bail In the decision in the certiorari case, it was found that respondent judge omitted certain material facts to justify the grant of bail to the accused. It was held in that case: [T]he lower courts order failed to mention and include some significant factors and circumstances which, to the mind of this Court, are strong, clear and convincing. First, it excluded the testimony of Dr. Belmonte about her psychiatric examination of the victim as well as her findings that the latter manifested "psychotic signs and symptoms such as unusual fear, sleeplessness, suicidal thoughts, psychomotor retardation, poverty of thought content as well as depressive signs and symptom." This particular testimony should have been considered and included in the summary as it was given by an expert witness. Second, the unrebutted offer of compromise by accused-respondent is an implied admission of guilt which should have been noted as an offer of a compromise is generally considered as admissible evidence against the party making it.[11] Not only did respondent judge omit vital and material facts in his order granting bail, he also misapplied legal doctrines in order to favor the accused. On this point, this Court said: Aside from failing to mention those important pieces of evidence and testimonies, this Court has likewise observed that the lower court misapplied some doctrines in criminal law. First, the lower court, in its order, intoned the following doctrine that "evidence to be believed must not only proceed from the mouth of a credible witness but it must be credible in itself in conformity with common experience and observation of mankind." According to the lower court, the credibility of the complainant is suspect because she willingly went with accused-respondent to the resort where she was allegedly raped. In the scene of the crime, complainant allegedly voluntarily drank four shots of gin. The complainant, likewise, never protested nor cried while they were on their way to accused-respondents house. Because of those findings, the lower court doubted the credibility of complainant and stated that the crime of rape is not to be presumed and that sexual acts between a man and a woman are presumed to be consensual. In overcoming such presumption, much depends on the credibility of the complainant.

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This Court cannot agree. First, there was no finding of any illmotive on the part of complainant in filing the rape charge against accused-respondent. This should have been taken into consideration. The following rebuttal of petitioner to the findings of the lower court is more credible: "It must also be stressed that Cecille testified that she was forced by respondent to drink gin with the help of his friends by holding her hair and putting the glass on her mouth (Pages 5-7, TSN, November 17, 1994). More, respondent and his friends blew smoke into her face forcing her to inhale the intoxicating smoke. Whenever she attempted to leave the place, she was forced to sit down by Odiamar and his friends (Pages 6-7, TSN, November 17, 1994). Similarly, Cecille categorically declared that she was threatened by Florece with a gun (Pages 17, TSN, November 17, 1994). The requirement of force and intimidation in the crime of rape are relative and must be viewed in light of the victims perspective and the offenders physical condition (People v. Plaza, 242 SCRA 724 [1995]). Further, physical resistance need not be established in rape when intimidation is exercised upon the victim and the latter submits herself against her will because of fear for life and personal safety. (People v. Ramos, 245 SCRA 405 [1995]) In this case, Cecille was only fifteen (15) years old at the time of the incident in question. At her age, it is reasonable to assume that a shot of gin rendered her tipsy. Thus, four (4) shots of gin must have rendered her dizzy, intoxicated and deprived of will or reason. The resulting weakness and dizziness which deprived Cecille of reason, will and freedom must be viewed in light of her perception and judgment at the time of the commission of the crime, and not by any hard and fast rule because in "rape cases, submission does not necessarily imply volition." (Querido, 229 SCRA 745 [1994])" It must likewise be taken into consideration that when Cecille went with the group of accused-respondent, she was of the impression that it was just for a joy ride. The conclusion made

by the trial court that Cecille must have consented to the sexual act because she acquiesced to go with them in the first place is, therefore, bereft of any legal or factual support, if not non sequitur. That she agreed to accompany them for a joy ride does not mean that she also agreed to the bestial acts later committed against her person. Second, the lower court stated that "force and violence in the offense of rape are relative terms, depending on the age, size and strength of the parties and their relation to each other." The lower court enunciated this doctrine in finding that the alleged rape was actually a consensual act since the prosecution was unable to show that complainant suffered any injury nor show any evidence that her pants or blouse was torn. Neither was there any evidence that accused-respondent exerted overpowering and overbearing moral influence over the offended party. This Court is of the impression that when the lower court invoked the above doctrine, it readily concluded that complainant agreed to the sexual act disregarding testimonies lending credence to complainants allegation that she was threatened and intimidated as well as rendered weak and dizzy, not only by the smoke of the marijuana cigarette but also by intoxication, thereby facilitating the commission of the crime. It was not imperative for the prosecution, in order to prove the elements of force or intimidation to show that Cecille had broken limbs or that her blouse or pants were torn. Her testimony to that effect would have sufficed. Nevertheless, the prosecution still exerted efforts to corroborate Cecilles claim by presenting the examining physician who testified that Cecille suffered hymenal lacerations and lesions near the umbilicus area. Unfortunately, however, the lower court chose to ignore these telling pieces of evidence. This Court views this apparent lapse on the part of the lower court with concern and agrees with petitioner, in accordance with well established jurisprudence, that proof of hymenal laceration is not indispensable in indictments for rape as a broken hymen is not an essential element of the crime. Further, in crimes against chastity, the medical examination of the victims genitalia is not an indispensable element for the successful prosecution of the crime. The examination is merely corroborative in nature. And contrary to the theory espoused by the lower court, a hymenal laceration is not conclusive proof that one is experienced in sexual intercourse.

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Second, the lower court highlighted the testimony of Dr. Decena to the effect that the cigarette burns indicated that the lesions near complainants umbilicus were due to skin diseases. Notably, however, the lower court again failed to mention that Dr. Decena likewise positively testified that the wounds could have been "caused by cigarette butts as alleged by the victim" which corroborates Cecilles testimony that respondent burned her "right side of the stomach" thrice. It is thus indicative from the above observations that the lower court abused its discretion and showed manifest bias in favor of accused-respondent in determining which circumstances are to be considered in supporting its decision as to the guilt of accused-respondent. . . .[12] As thus shown by the records, respondent judge granted bail despite sufficient evidence presented by the prosecution showing the guilt of the accused. Respondent judge's contention that the court is at liberty to omit evidence or testimony if he finds it "insignificant, irrelevant, immaterial, [or] absurd" is untenable. As the decision in the certiorari case demonstrates, the evidence omitted was vital or important in showing that the evidence of guilt of the accused is strong. Furthermore, respondent judge failed to consider basic criminal law doctrines in the issuance of his questioned order, which omission, to the mind of this Court, constitutes gross ignorance of the law. In Bacar v. De Guzman, Jr.,[13] it was held that when the law violated is elementary, the failure to know or observe it constitutes gross ignorance of the law. Reiterating this ruling, it was emphasized in Almeron v. Sardido[14] that the disregard of an established rule of law which amounts to gross ignorance of the law makes a judge subject to disciplinary action. Prescinding from the foregoing, it is undeniable that respondent judge knowingly issued a manifestly unjust order granting bail to the accused. As the OCA noted: . . . There is no doubt that the respondent Judge rendered the assailed order knowing it to be unjust as it was clearly contrary to the applicable laws, not supported by evidence; and more importantly, there are indications that respondent issued the order with conscious and deliberate intent to do an injustice (Gonzales v. Bersamin, 254 SCRA 652 [1996]; Contreras v. Solis, 260 SCRA 572 [1996]). In the case at bar, respondent Judge granted bail to the accused in willful and manifest disregard of evidences presented by the prosecution which

strongly warrants denial of the bail obviously to favor the accused. Re: Order directing and confirming the hospitalization of the accused With respect to the order granting the ex-parte motion for hospitalization of the accused, we likewise find that respondent judge issued the same with grave abuse of discretion and manifest bias. He justified his order of April 19, 1995, granting the motion of the accused for hospitalization and setting the same for hearing on April 26, 1995, on the need to act promptly, because the life of the accused was at stake. Hence, he thought he could "act now and investigate later," as he in fact set a hearing on the motion on a later date. However, the prosecution was not able to attend the hearing set on April 26, 1995 because a copy of the order setting the motion for hearing was received by the prosecution only on the day of the hearing. The order was sent to the prosecution by mail despite the fact that, as respondent judge admitted, his court and the office of the public prosecutor are in the same building. Certainly, it would have been easier and more effective if the order was personally served on the prosecution. Nor was there a need to resolve the motion immediately as the accused was already confined in the hospital. Respondent judge must have been aware that the prosecution was going to oppose the motion for hospitalization as the prosecution had vehemently done so in the past. Apparently, it was to give the prosecution no chance to file an opposition that respondent judge fixed the date of the hearing close to the date of its mailing to the complainant. Once again, respondent judge clearly showed partiality for the accused. Re: Detached pages of the records of the case involving accused Odiamar As administrators of their courts, judges should adopt a system of record management. In this case, the loss of records in his office indicates gross negligence on his part.[15] When the Clerk of Court of the RTC, Branch 58, of which Judge Policarpio Camano, Jr. was the presiding judge, returned the records of the criminal case to the RTC, Branch 30 of respondent judge, the Clerk of Court stated in his transmittal letter that "pages 2, 17, 41, 44, 47, 50, 53, 58, 63, 66, 69, 73 were detached per notation appearing in the records and pages 525 and 585 were skipped/mispaged." The pages in question had been missing even when the records of the case were still in the RTC, Branch 30 of respondent judge. He cannot, therefore, excuse himself for the loss of the pages in question on the ground that the Clerk of Court of the RTC, Branch 58 was not under his administrative supervision and control. A prudent person would have exerted effort to determine the cause of the loss considering that the alleged detached pages consisted of several affidavits and preliminary examinations of

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relevant witnesses. His failure to do so constitutes gross negligence and inefficiency. Re: Delay in the resolution of motions

evidence of the guilt of the accused, the bail granted to him should be cancelled. The facts of that case are, therefore, different from those of the case at bar. Re: Counter-charges against herein complainant

However, we find merit in respondent judges explanation for the seeming delay in the resolution of some motions. It appears that the records of the case were transmitted to the RTC, Branch 58 immediately after Judge Camano Jr.'s appointment on April 10, 1995. The records were not returned to the RTC, Branch 30, until April 15, 1996, after Judge Camano Jr. had inhibited himself from the consideration of the case. On the other hand, with respect to the amount of the bail bond as fixed by respondent judge and its approval without registration in the Provincial Assessors Office, the OCA correctly observed that there is no need to pass upon the validity of the same in view of the cancellation of the bail bond by the Court in People v. Cabral. Re: Penalty to be imposed for respondents infractions We find respondent judge guilty of violation of Canon 1, Rule 1.02, Canon 3, Rules 3.01, 3.02, 3.08, and 3.09 of the Code of Judicial Conduct.[16]With reference to the penalty to be imposed on him, the OCA recommends as follows: Indeed in his order, respondent Judge exhibited gross incompetence, gross ignorance of the law and gross misconduct. And under Rule 140, these charges are classified as serious charges (3) and carries a penalty ranging from fine to dismissal from service (10). However, this is his first administrative offense of this nature since his appointment as an RTC judge which may be considered to mitigate his liability. Hence, a penalty lower than removal may be properly imposed. It may be stated in this connection that complainant also filed an administrative complaint for violations of Canons 1, 2, and 3 of the Code of Judicial Conduct and for incompetence against then Judge Policarpio Camano, Jr. in connection with the grant of bail to herein accused Roderick Odiamar in Criminal Case No. T-1468 for violation of the Child Abuse Act (R.A. No. 7610), also allegedly committed against herein offended party Cecille Buenafe.[17] The case was dismissed and Judge Camano, Jr. was exonerated, because it was found that, although the imposable penalty could be reclusion perpetua, there was no showing that the evidence of guilt of the accused was strong. In fact, a preliminary investigation had been ordered in that case, but it was emphasized therein that if after preliminary investigation it was shown that there was strong

We find the countercharges against complainant to be meritorious. First, complainant is guilty as charged of misrepresenting the contents of respondent judges order of June 19, 1995, which constitutes violation of Canon 10, Rule 10.02,[18] by declaring in his Motion for Clarification: . . . The admission that a court aide tampered with or altered the draft of subject order which change is indicative of inexcusable negligence, fraud and falsification committed by that aide prejudicial to our rights . . . . The allegation that respondent admitted tampering with or altering the records is obviously an attempt by complainant either to obtain a favorable action by misleading the trial court or to badger, annoy, and cast disrepute to the respondent judge. Second, complainants explanation concerning the questioned counter-affidavits is unsatisfactory. He said: The foregoing quoted statement and the succeeding statements referring to the counter-affidavits of the accused and his witness . . . have never been objected [to] by the respondent and the accused until respondents Comment, and therefore by silence and operation of law respondent should be deemed to have admitted the veracity of said motion . . . ...All our cited motions and other submissions kept referring to said counter-affidavits but respondent never reacted that these counter-affidavits are not parts of the records. Accused never objected and to date has not done so. In view of respondent and accuseds silence we were of the honest belief that these counter-affidavits are on file with the records. . . .[19] If there were indeed counter-affidavits in the records or at least attached to complainants Motion to Resolve Pending Motions, he should have said so in his Reply or Supplemental to Reply or appended copies of the said counteraffidavits, but he did none of these. Instead, he contended that the failure of respondent judge to object to the lack of counter-affidavits was an admission of the veracity of his assertion. This is sophistry. Complainant should be reminded

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that lawyers have an obligation to the court as well as to the opposing party to make only truthful statements in their pleadings. For his violation of this duty, complainant committed a breach of Canon 10, Rule 10.01 of the Code of Professional Responsibility.[20] In addition, he likewise committed a violation of Canon 11 of Rule 11.03[21] by threatening respondent judge that if his motions were not granted, respondent judge would be administratively charged. To be sure, the threat made against respondent judge was not a threat to do him bodily harm. Nonetheless, it was a threat. Needless to say, disrespectful, abusive and abrasive language, offensive personalities, unfounded accusations, or intemperate words tending to obstruct, embarrass, or influence the court in administering justice or to bring it into disrepute have no place in a pleading.[22] WHEREFORE, respondent Judge Alfredo A. Cabral of the Regional Trial Court, Branch 30, San Jose, Camarines Sur, is hereby found liable for grave abuse of authority, gross ignorance of the law, gross negligence and inefficiency, rendering unjust judgment and for violations of the Code of Judicial Conduct and, accordingly, is SUSPENDED from office for SIX (6) MONTHS without pay. On the other hand, complainant Romulo SJ Tolentino is REPRIMANDED for breach of Canon 10, Rules 10.01 and 10.02 as well as Canon 11, Rule 11.03 of the Code of Professional Responsibility. Both complainant and respondent judge are WARNED that repetition of the same or similar offenses in the future will be severely dealt with by this Court. SO ORDERED. GAVINA MAGLUCOT-AW, CATALINA ORCULLO, RICHARD ESTANO, NIDA MAGLUCOT, MELANIA MAGLUCOT-CATUBIG, EMILIANO CATUBIG, LADISLAO SALMA, petitioners, vs. LEOPOLDO MAGLUCOT, SEVERO MAGLUCOT, WILFREDA MAGLUCOT-ALEJO and CONSTANCIO ALEJO, respondents. DECISION KAPUNAN, J.: This petition for review on certiorari assails the Decision, dated 11 November 1997, of the Court of Appeals in CA-G.R. CV No. 48816 which reversed and set aside the Decision, dated 13 December 1994, of the Regional Trial Court, Branch 30 of Dumaguete City, Negros Oriental in an action for recovery of possession and damages. The core issue in this case is whether a partition of Lot No. 1639 had been effected in 1952. Petitioners contend that there was already a partition of said lot; hence, they are entitled to exclusive possession and ownership of Lot No. 1639-D, which originally formed part of Lot No. 1639 until its partition. Private

respondents, upon the other hand, claim that there was no partition; hence, they are co-owners of Lot No. 1639-D. Notably, this case presents a unique situation where there is an order for partition but there is no showing that the sketch/subdivision plan was submitted to the then Court of First Instance for its approval or that a decree or order was registered in the Register of Deeds. The antecedent facts of the case are as follows: Korte Petitioners filed with the RTC a complaint for recovery of possession and damages alleging, inter alia, that they are the owners of Lot No. 1639-D. Said lot was originally part of Lot No. 1639 which was covered by Original Certificate Title No. 6775 issued in the names of Hermogenes Olis, Bartolome Maglucot, Pascual Olis, Roberto Maglucot, Anselmo Lara and Tomas Maglucot on 16 August 1927.[1] On 19 April 1952, Tomas Maglucot, one of the registered owners and respondents predecessor-in-interest, filed a petition to subdivide Lot No. 1639.[2] Consequently, on 13 May 1952, then CFI of Negros Oriental issued an order[3] directing the parties to subdivide said lot into six portions as follows: Rtcspped a) Hermogenes Olis - lot 1639-A b) Pascual Olis - lot 1639-B c) Bartolome Maglucot - lot 1639-C d) Roberto (Alberto) - lot 1639-D Maglucot e) Anselmo Lara - lot 1639-E f) Tomas Maglucot - lot 1639-F.[4] Sometime in 1963, Guillermo Maglucot rented a portion of Lot No. 1639-D (subject lot). Subsequently, Leopoldo and Severo, both surnamed Maglucot, rented portions of subject lot in 1964 and 1969, respectively, and each paying rentals therefor. Said respondents built houses on their corresponding leased lots. They paid the rental amount of P100.00 per annum to Mrs. Ruperta Salma, who represented the heirs of Roberto Maglucot, petitioners predecessor-ininterest. In December 1992, however, said respondents stopped paying rentals claiming ownership over the subject lot. Petitioners thus filed the complaint a quo. Sdaadsc

15

After trial, the lower court rendered judgment in favor of petitioners. The RTC found the existence of tax declarations in the names of Hermogenes Olis and Pascual Olis (purported owners of Lot Nos. 1639-A and 1639-B, respectively)[5] as indubitable proof that there was a subdivision of Lot No. 1639. It likewise found that Tomas Maglucot, respondents predecessor-ininterest, took active part in the partition as it was he, in fact, who commenced the action for partition.[6] The court a quo cited Article 1431 of the Civil Code which states that "[t]hrough estoppel an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon." Applying said provision of law, it held that while there was no court order showing that Lot No. 1639 was partitioned, its absence could not be used by Tomas Maglucot, or respondents as his successors-in-interest, to deny the existence of an approved partition against the other co-owners who claim that there was one.[7]Said court, likewise, ruled that the tax declarations[8] over the houses of respondents, expressly stating that the same are constructed on the lots of Roberto Maglucot, constitute a conclusive admission by them of the ownership of the subject lot by the latter.[9] The dispositive portion of the lower courts decision reads as follows: Missdaa WHEREFORE, on the basis of the foregoing discussion, judgment is hereby rendered in favor of the plaintiffs against the defendants ordering the latter: 1. To demolish their houses inside lot 1639-D, vacate the premises thereof and deliver the possession of the same to Plaintiffs; Slxmis 2. To jointly and solidarily pay plaintiffs the sum of P15,000.00 for attorneys fees; 3. To each pay plaintiffs the sum of P100.00 every year from 1993 for actual damages representing the amount of unpaid rentals up to the time they actually vacate the premises in question; Sclaw 4. To pay the costs.[10] On appeal, the CA reversed the decision of the RTC. The appellate court ruled that the sketch plan and tax declarations relied upon by petitioners are not conclusive evidence of partition.[11] The CA likewise found that the prescribed procedure under Rule 69 of the Rules of Court was not followed. It thus declared that there was no partition of Lot No. 1639. Slxsc

Petitioners filed this petition for review on certiorari alleging that the CA committed the following reversible errors: I IN VIOLATING THE LAW ON ACQUISITIVE PRESCRIPTION PLAINTIFFS HAVING POSSESSED LOT 1639-D SINCE 1946; II IN VIOLATING THE LAW ON ESTOPPEL; THE FACT OF PAYMENT OF RENTALS AND OFFER TO BUY BY THE DEFENDANTS IS ADMISSION THAT THE AREA IN LOT 1639-D, HAD LONG BEEN ADJUDICATED TO PLAINTIFFS; III IN DECLARING THAT THERE WAS NO PRIOR PARTITION, CONTRARY TO THE FINDINGS OF THE TRIAL COURT, AND AGAINST THE EVIDENCE ON RECORD, OF WHICH IF PROPERLY CONSIDERED WOULD CHANGE THE OUTCOME OF THE CASE; IV IN DECLARING THAT THERE IS NO LAW OR JURISPRUDENCE APPLICABLE UNDER THE PREMISES; THIS WOULD ONLY SHOW THAT THE RECORD OF THE CASE WAS NOT PROPERLY SCRUTINIZED, AND THE LAW WAS NOT PROPERLY STUDIED; ESPECIALLY IN THE CASE AT BENCH THAT THE ORAL AND MUTUAL PARTITION HAPPENED DURING THE REGIME OF THE OLD RULES OF PROCEDURE;[12] Petitioners maintain that Lot No. 1639 was mutually partitioned and physically subdivided among the co-owners and that majority of them participated in the actual execution of the subdivision. Further, the co-owners accepted their designated shares in 1946 as averred by Tomas Maglucot in his petition for partition.[13] Petitioners opine that in 1952, Tomas Maglucot himself initiated a court proceeding for a formal subdivision of Lot No. 1639. In said petition, he averred that only Hermogenes Olis and the heirs of Pascual Olis were not agreeable to the partition.[14] Petitioners further contend that respondents admitted in their tax declarations covering their respective houses that they are "constructed on the land of Roberto Maglucot."[15] Simply put, petitioners vigorously assert that respondents are estopped from claiming to be co-owners of the subject lot in view of the mutual agreement in 1946, judicial confirmation

16

in 1952, and respondents acquiescence because they themselves exclusively exercised ownership over Lot No. 1639-A beginning 1952 up to the present.[16] For their part, respondents posit three points in support of their position. First, they emphasize that petitioners failed to show that the interested parties were apprised or notified of the tentative subdivision contained in the sketch and that the CFI subsequently confirmed the same.[17] Second, they point to the fact that petitioners were unable to show any court approval of any partition.[18] Third, they maintain that Lot No. 1639 remain undivided since to date, OCT No. 6275 is still an existing and perfectly valid title, containing no annotation of any encumbrance or partition whatsoever.[19] After a careful consideration of the pleadings filed by the parties and the evidence on record, we find that the petition is meritorious. As stated earlier, the core issue in this case is whether there was a valid partition in 1952. Scslx Preliminarily, this Court recognizes that "the jurisdiction of this Court in cases brought before it from the Court of Appeals via Rule 45 of the Rules of Court is limited to reviewing errors of law. Findings of fact of the latter are conclusive, except in the following instances: (1) when the findings are grounded entirely on speculation, surmises, or conjectures; (2) when the inference made is manifestly mistaken, absurd, or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to those of the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondent; and (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record."[20] This case falls under exceptions (7), (8) and (10) in that the findings of facts of the CA are in conflict with that of the RTC, are mere conclusions without citation of specific evidence on which they are based and are premised on absence of evidence but are contradicted by the evidence on record. For these reasons, we shall consider the evidence on record to determine whether indeed there was partition. Slx In this jurisdiction, an action for partition is comprised of two phases: first, an order for partition which determines whether a co-ownership in fact exists, and whether partition is proper; and, second, a decision confirming the sketch or subdivision submitted by the parties or the commissioners appointed by the court, as the case may be.[21] The first phase of a partition and/or accounting suit is taken up with the determination of whether or not a co-ownership in fact exists, (i.e., not otherwise legally proscribed) and may be made by voluntary agreement of all the parties interested in the property. This phase may end with

a declaration that plaintiff is not entitled to have a partition either because a coownership does not exist, or partition is legally prohibited. It may end, upon the other hand, with an adjudgment that a co-ownership does in truth exist, partition is proper in the premises and an accounting of rents and profits received by the defendant from the real estate in question is in order. In the latter case, the parties may, if they are able to agree, make partition among themselves by proper instruments of conveyance, and the court shall confirm the partition so agreed upon. In either case i.e., either the action is dismissed or partition and/or accounting is decreed the order is a final one, and may be appealed by any party aggrieved thereby. The second phase commences when it appears that "the parties are unable to agree upon the partition" directed by the court. In that event, partition shall be done for the parties by the court with the assistance of not more than three (3) commissioners. This second stage may well also deal with the rendition of the accounting itself and its approval by the court after the parties have been accorded opportunity to be heard thereon, and an award for the recovery by the party or parties thereto entitled of their just share in the rents and profits of the real estate in question. Such an order is, to be sure, final and appealable.[22] The present rule on the question of finality and appealability of a decision or order decreeing partition is that it is final and appealable.[23] The order of partition is a final determination of the co-ownership over Lot No. 1639 by the parties and the propriety of the partition thereof. Hence, if the present rule were applied, the order not having been appealed or questioned by any of the parties to the case, it has become final and executory and cannot now be disturbed. Mesm The true test to ascertain whether or not an order or a judgment is interlocutory or final is: Does it leave something to be done in the trial court with respect to the merits of the case? If it does, it is interlocutory; if it does not, it is final. The key test to what is interlocutory is when there is something more to be done on the merits of the case.[24] An order for partition is final and not interlocutory and, hence, appealable because it decides the rights of the parties upon the issue submitted.[25] However, this Court notes that the order of partition was issued when the ruling in Fuentebella vs. Carrascoso,[26] which held that the order of partition is interlocutory, was controlling. In addition, the reports of the commissioners not having been confirmed by the trial court are not binding.[27] In this case, both the order of partition and the unconfirmed sketch plan are, thus, interlocutory. Nevertheless, where parties do not object to the interlocutory decree, but show by their conduct that they have assented thereto, they cannot thereafter question the decree,[28] especially, where, by reason of their conduct, considerable expense has been incurred in the execution of the commission.[29] Respondents in this case have occupied their respective lots in accordance with the sketch/subdivision plan. They cannot after acquiescing to

17

the order for more than forty (40) years be allowed to question the binding effect thereof. This case is to be distinguished from the order in the action for partition in Arcenas vs. Cinco.[30] In that case, the order was clearly interlocutory since it required the parties " to submit the corresponding deed of partition to the Court for its approval." Here, the order appointed two commissioners and directed them merely to approve the sketch plan already existing and tentatively followed by the parties. Calrky Under the present rule, the proceedings of the commissioners without being confirmed by the court are not binding upon the parties.[31] However, this rule does not apply in case where the parties themselves actualized the supposedly unconfirmed sketch/subdivision plan. The purpose of court approval is to give effect to the sketch/subdivision plan. In this case, the parties themselves or through their predecessors-in-interest implemented the sketch plan made pursuant to a court order for partition by actually occupying specific portions of Lot No. 1639 in 1952 and continue to do so until the present until this case was filed, clearly, the purpose of the court approval has been met. This statement is not to be taken to mean that confirmation of the commissioners may be dispensed with but only that the parties herein are estopped from raising this question by their own acts of ratification of the supposedly non-binding sketch/subdivision plan. Kycalr The records of the case show that sometime in 1946 there was a prior oral agreement to tentatively partition Lot No. 1639.[32] By virtue of this agreement, the original co-owners occupied specific portions of Lot No. 1639.[33] It was only in 1952 when the petition to subdivide Lot No. 1639 was filed because two of the co-owners, namely Hermogenes Olis and heirs of Pascual Olis, refused to have said lot subdivided and have separate certificates of title. Significantly, after the 1952 proceedings, the parties in this case by themselves and/or through their predecessors-in-interest occupied specific portions of Lot No. 1639 in accordance with the sketch plan. Such possession remained so until this case arose, or about forty (40) years later. From its order in 1952, it can be gleaned that the CFI took notice of the tentative subdivision plan by oral partition of the parties therein. Further, it appears that said court was aware that the parties therein actually took possession of the portions in accordance with the sketch/subdivision plan. With this factual backdrop, said court ordered the partition and appointed two (2) commissioners to approve the tentative sketch/subdivision plan. It would not be unreasonable to presume that the parties therein, having occupied specific portions of Lot No. 1639 in accordance with the sketch/subdivision plan, were aware that it was that same sketch/subdivision plan which would be considered by the commissioners for approval. There is no showing that respondents by themselves or through their predecessors-in-interest raised any objections. On

the contrary, the records show that the parties continued their possession of the specific portions of Lot No. 1639 pursuant to the sketch/subdivision plan. Kyle It has been previously held that a co-owner, who, though not a party to a partition accepts the partition allotted to him, and holds and conveys the same in severalty, will not be subsequently permitted to avoid partition.[34] It follows that a party to a partition is also barred from avoiding partition when he has received and held a portion of the subdivided land especially in this case where respondents have enjoyed ownership rights over their share for a long time. Parties to a partition proceeding, who elected to take under partition, and who took possession of the portion allotted to them, are estopped to question title to portion allotted to another party.[35] A person cannot claim both under and against the same instrument.[36] In other words, they accepted the lands awarded them by its provisions, and they cannot accept the decree in part, and repudiate it in part. They must accept all or none.[37] Parties who had received the property assigned to them are precluded from subsequently attacking its validity of any part of it.[38] Here, respondents, by themselves and/or through their predecessors-in-interest, already occupied of the lots in accordance with the sketch plan. This occupation continued until this action was filed. They cannot now be heard to question the possession and ownership of the other coowners who took exclusive possession of Lot 1639-D also in accordance with the sketch plan. Exsm In technical estoppel, the party to be estopped must knowingly have acted so as to mislead his adversary, and the adversary must have placed reliance on the action and acted as he would otherwise not have done. Some authorities, however, hold that what is tantamount to estoppel may arise without this reliance on the part of the adversary, and this is called, ratification or election by acceptance of benefits, which arises when a party, knowing that he is not bound by a defective proceeding, and is free to repudiate it if he will, upon knowledge, and while under no disability, chooses to adopt such defective proceeding as his own.[39] Ratification means that one under no disability voluntarily adopts and gives sanction to some unauthorized act or defective proceeding, which without his sanction would not be binding on him. It is this voluntary choice, knowingly made, which amounts to a ratification of what was theretofore unauthorized, and becomes the authorized act of the party so making the ratification.[40] The records show that respondents were paying rent for the use of a portion of Lot No. 1639-D. Had they been of the belief that they were co-owners of the entire Lot No. 1639 they would not have paid rent. Respondents attempted to counter this point by presenting an uncorroborated testimony of their sole witness to the effect that the amount so paid to Roberto Maglucot and, subsequently, to Ruperta Salma were for the payment of real property taxes. We are not persuaded. It is quite improbable that the parties would be unaware

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of the difference in their treatment of their transactions for so long a time. Moreover, no evidence was ever presented to show that a tax declaration for the entire Lot No. 1639 has ever been made. Replete in the records are tax declarations for specific portions of Lot 1639. It is inconceivable that respondents would not be aware of this. With due diligence on their part, they could have easily verified this fact. This they did not do for a period spanning more than four decades. The payment of rentals by respondents reveal that they are mere lessees. As such, the possession of respondents over Lot No. 1639-D is that of a holder and not in the concept of an owner. One who possesses as a mere holder acknowledges in another a superior right which he believes to be ownership, whether his belief be right or wrong.[41] Since the possession of respondents were found to be that of lessors of petitioners, it goes without saying that the latter were in possession of Lot No. 1639-D in the concept of an owner from 1952 up to the time the present action was commenced.Msesm Partition may be inferred from circumstances sufficiently strong to support the presumption.[42] Thus, after a long possession in severalty, a deed of partition may be presumed.[43] It has been held that recitals in deeds, possession and occupation of land, improvements made thereon for a long series of years, and acquiescence for 60 years, furnish sufficient evidence that there was an actual partition of land either by deed or by proceedings in the probate court, which had been lost and were not recorded.[44] And where a tract of land held in common has been subdivided into lots, and one of the lots has long been known and called by the name of one of the tenants in common, and there is no evidence of any subsequent claim of a tenancy in common, it may fairly be inferred that there has been a partition and that such lot was set off to him whose name it bears.[45] Respondents insist that the absence of any annotation in the certificate of title showing any partition of Lot No. 1639 and that OCT No. 6725 has not been canceled clearly indicate that no partition took place. The logic of this argument is that unless partition is shown in the title of the subject property, there can be no valid partition or that the annotation in the title is the sole evidence of partition. Esmso Again, we are not persuaded. The purpose of registration is to notify and protect the interests of strangers to a given transaction, who may be ignorant thereof, but the non-registration of the deed evidencing such transaction does not relieve the parties thereto of their obligations thereunder.[46] As originally conceived, registration is merely a species of notice. The act of registering a document is never necessary in order to give it legal effect as between the parties.[47] Requirements for the recording of the instruments are designed to prevent frauds and to permit and require the public to act with the presumption that recorded instruments exist and are genuine.[48]

It must be noted that there was a prior oral partition in 1946. Although the oral agreement was merely tentative, the facts subsequent thereto all point to the confirmation of said oral partition. By virtue of that agreement, the parties took possession of specific portions of the subject lot. The action for partition was instituted because some of the co-owners refused to have separate titles issued in lieu of the original title. In 1952, an order for partition was issued by the cadastral court. There is no evidence that there has been any change in the possession of the parties. The only significant fact subsequent to the issuance of the order of partition in 1952 is that respondents rented portions of Lot No. 1639-D. It would be safe to conclude, therefore, that the oral partition as well as the order of partition in 1952 were the bases for the finding of actual partition among the parties. The legal consequences of the order of partition in 1952 having been discussed separately, we now deal with oral partition in 1946. Given that the oral partition was initially tentative, the actual possession of specific portions of Lot No. 1639 in accordance with the oral partition and the continuation of such possession for a very long period indicate the permanency and ratification of such oral partition. The validity of an oral partition is already well-settled. InEspina vs. Abaya,[49] we declared that an oral partition is valid. In Hernandez vs. Andal,[50] reiterated in Tan vs. Lim,[51] this Court has ruled, thus: On general principle, independent and in spite of the statute of frauds, courts of equity have enforce oral partition when it has been completely or partly performed. Esmmis Regardless of whether a parol partition or agreement to partition is valid and enforceable at law, equity will proper cases where the parol partition has actually been consummated by the taking of possession in severalty and the exercise of ownership by the parties of the respective portions set off to each, recognize and enforce such parol partition and the rights of the parties thereunder. Thus, it has been held or stated in a number of cases involving an oral partition under which the parties went into possession, exercised acts of ownership, or otherwise partly performed the partition agreement, that equity will confirm such partition and in a proper case decree title in accordance with the possession in severalty. In numerous cases it has been held or stated that parol partition may be sustained on the ground of estoppel of the parties to assert the rights of a tenant in common as to parts of land divided by parol partition as to which possession in severalty was taken and acts of individual ownership were exercised. And a court of equity will recognize the agreement and decree it to be valid and effectual for the purpose of concluding the right of the parties as between each other to hold their respective parts in severalty.

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A parol partition may also be sustained on the ground that the parties thereto have acquiesced in and ratified the partition by taking possession in severalty, exercising acts of ownership with respect thereto, or otherwise recognizing the existence of the partition. A number of cases have specifically applied the doctrine of part performance, or have stated that a part performance is necessary, to take a parol partition out of the operation of the statute of frauds. It has been held that where there was a partition in fact between tenants in common, and a part performance, a court of equity would have regard to enforce such partition agreed to by the parties. Esmsc Two more points have constrained this Court to rule against respondents. First, respondents Wilfreda Maglucot-Alejo and Constancio Alejo offered to buy the share of Roberto Maglucot. Second, the tax declarations contain statements that the houses of respondents were built on the land owned by Roberto Maglucot. Esm On the first point, petitioners presented Aida Maglucot who testified that after respondents were informed that petitioners were going to use Lot No. 1639-D belonging to Roberto Maglucot, respondents Wilfreda Maglucot-Alejo and Constancio Alejo went to the house of said witness and offered to buy the share of Roberto Maglucot.[52] Aida Maglucot further testified that they refused the offer because they also intend to use the lot for a residential purpose.[53] This testimony of Aida Maglucot is unrebutted by respondents, and the CA did not touch upon this finding of fact. Hence, the offer to buy has been established by the unrebutted evidence of the petitioners. Why would they give such offer if they claim to be at least a co-owner of the said lot? In effect, respondents impliedly admit the title of the petitioners and that they are not co-owners, much less the sole owners, of Lot No. 1639-D. Chief On the second point, the existence of Tax Declaration No. 04-557 in the names of Constancio Alejo and Godofreda Maglucot,[54] Tax Declaration No. 04-87-13 in the names of Leopoldo Maglucot and Regina Barot,[55] Tax Declaration No. 04593 in the names of Severo Maglucot and Samni Posida[56]showing that the houses of the above-mentioned persons are constructed on the land of Roberto Maglucot[57] constitute incontrovertible evidence of admission by the same persons of the ownership of the land by Roberto Maglucot. Tax Declarations are public documents. Unless their veracity is directly attacked, the contents therein are presumed to be true and accurate.[58] The lone testimony of Severo Maglucot that Roberto Maglucot was only made to appear as owner of the land in their respective declarations because he was the administrator of Lot No. 1639 is uncorroborated and not supported by any other evidence. Jksm

No injustice is dealt upon respondents because they are entitled to occupy a portion of Lot No. 1639, particularly Lot No. 1639-A, in their capacity as heirs of Tomas Maglucot, one of the original co-owners of Lot No. 1639 in accordance with the sketch plan of said lot showing the partition into six portions.[59] Finally, this Court takes notice of the language utilized by counsel for petitioners in their petition for review on certiorari. Thrice in the petition, counsel for petitioners made reference to the researcher of the CA. First, he alluded to the lack of scrutiny of the records and lack of study of the law "by the researcher."[60] Second, he cited the researcher of the CA as having "sweepingly stated without reference to the record"[61] that "[w]e have scanned the records on hand and found no evidence of any partition." Finally, counsel for petitioners assailed the CA decision, stating that "this will only show that there was no proper study of the case by the researcher."[62] Any court when it renders a decision does so as an arm of the justice system and as an institution apart from the persons that comprise it. Decisions are rendered by the courts and not the persons or personnel that may participate therein by virtue of their office. It is highly improper and unethical for counsel for petitioners to berate the researcher in his appeal. Counsel for petitioner should be reminded of the elementary rules of the legal profession regarding respect for the courts by the use of proper language in its pleadings and admonished for his improper references to the researcher of the CA in his petition. A lawyer shall abstain from scandalous, offensive, or menacing language or behavior before the courts.[63] WHEREFORE, the petition is GRANTED The decision of the Court of Appeals is SET ASIDE and the decision of the Regional Trial Court is hereby REINSTATED. h Y SO ORDERED. LT. LAMBERTO P. VILLAFLOR, complainant, SARITA, respondent. RESOLUTION KAPUNAN, J.: This administrative case originated from a sworn affidavit-complaint[1]dated 14 March 1997, filed before the Integrated Bar of the Philippines (IBP), Commission on Bar Discipline, by Lt. Lamberto P. Villaflor seeking the disbarment of Atty. Alvin T. Sarita for disregarding the Temporary Restraining Order (TRO) issued by the Court of Appeals in relation to the case entitled Lamberto Villaflor vs. Biyaya Corporation, et al.[2] now pending with the same court. vs. ALVIN T.

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Respondent Atty. Alvin T. Sarita is the counsel of Biyaya Corporation, the plaintiff in the ejectment case[3] filed against complainant Lt. Lamberto P. Villaflor before the Metropolitan Trial Court, Branch 53, of Kalookan City. Metropolitan Trial Court Judge Romanito A. Amatong decided the ejectment case in favor of Biyaya Corporation. Complainant appealed this decision to the Regional Trial Court of Kalookan City, Branch 131, [4] which affirmed the decision of the MTC. Not satisfied with the decision of the RTC, complainant brought the case on appeal before the Court of Appeals which was docketed as CA G.R No. 50623.[5] Losing no time, complainant also filed with the Court of Appeals an Urgent Ex-Parte Motion for the Issuance of a Temporary Restraining Order to prevent the impending demolition of his family home. In a Resolution dated 27 December 1996, the Court of Appeals granted the prayer for a TRO, the dispositive portion of which reads as follows: IN VIEW OF THE FOREGOING, let a restraining order forthwith issue against defendants-appellees including the public respondent Judge or Sheriff or any person under him from evicting and demolishing the family house of the movant, pending appeal. x x x SO ORDERED. The TRO was specifically addressed to, and personally served on, the Presiding Judge of RTC, Branch 131, Kalookan City; the Sheriff/Deputy Sheriff, RTC Branch 131, Kalookan City; Atty. Alvin T. Sarita; and Atty. Romeo F. Barza.[6] Despite the TRO issued by the Court of Appeals, respondent on 8 January 1997, filed before the MTC an Urgent Ex-Parte Motion for the Implementation and/or Enforcement of the Writ of Demolition[7] which had already been issued by the trial court as early as 12 August 1996. In his motion which is quoted hereunder, respondent stated the reason why he did not heed the TRO: 1. That last January 7, 1997, plaintiff received a Resolution datedDecember 27, 1996 from the Thirteenth Division of the Court of Appeals granting the issuance of a Temporary Restraining Order (TRO). 2. A close scrutiny of the afore-said Resolution including the Notice of Resolution and the Temporary Restraining Order show that it was directed to the Honorable Presiding Judge (Honorable Antonio J. Fineza) of the Regional Trial Court of Caloocan City, Branch 131 and to the assigned (deputy) sheriff thereon and NOT to this Honorable Court and its deputy sheriff. 3. The only conclusion therefrom is that the Honorable Metropolitan Trial Court is not restrained nor prohibited from enforcing and/or implementing its judicial process such as the subject writ of demolition.

XXX On 9 January 1997, Judge Amatong granted the motion of respondent and issued an order[8] for the implementation of the writ of demolition. The demolition order was actually carried out the next day, or on 10 January 1997, by the deputy sheriff of the lower court.[9] In response to the situation, complainant filed before the Court of Appeals an action for Indirect Contempt against respondent, Biyaya Corporation, Judge Amatong, And the Register of Deeds of Kalookan City. The Court of Appeals in its Resolution dated 20 February 1997, found respondent and his co-defendants, Judge Amatong and Biyaya Corporation, guilty of indirect contempt. The dispositive portion of the resolution states: WHEREFORE, in the light of the foregoing disquisitions, defendantsappelleesBiyaya Corporation and MTC Judge Ramonito Amatong, and their counsel, Atty. Alvin Sarita are hereby adjudged GUILTY OF CONTEMPT OF COURT as they are hereby fined to pay the amount of P30,000.00 each, as per SC Administrative Circular No. 22-95, amending Section 6, Rule 71 of the Rules of Court, with a warning that repetition of the same or similar acts will be dealt with more severely. Atty. Alvin Sarita is likewise REPRIMANDED for his contemptuous or improvident act despite receipt of Our Restraining Order, without prejudice to any further administrative sanction the injured party may seek in the proper forum. Describing the unfortunate behavior of respondent, the Court of Appeals said: Specifically, the Court is convinced that Atty. Alvin Sarita should answer for contempt of court for misleading if not deceiving the defendant-appellee MTC Judge into doing a precipitate act of implementing the writ of demolition of appellants family house which is restrained by this Court, or for making false allegations that led his clients to commit a contemptuous act. (Cu Unjieng vs. Mitchell, 58 Phil. 476.) His misinterpretation of the resolution is no defense otherwise, all lawyers can effectively avoid restraining orders of the higher court by arguing around the bush.[10] The Court of Appeals also granted the prayer for the issuance of a writ of preliminary mandatory injunction and ordered Biyaya Corporation and Judge Amatong to immediately restore the demolished family house of complainant or, return to him the estimated value of the same. Thereafter, complainant filed a case for disbarment against respondent before the IBP Commission on Bar Discipline. The commissioner[11] assigned to investigate the case issued an order[12] dated 3 September 1997, directing

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respondent to file his answer or comment to the complaint. The period of time allotted to answer the complaint lapsed without respondent submitting his comment. On 8 December 1997, an order[13] was issued by the investigating commissioner requiring the parties to attend the hearing of the case on 10 February 1998. Respondent failed to appear therein. The hearing was postponed and reset to 6 March 1998. A notice of hearing[14] was sent to respondent but again he failed to attend the proceeding. After giving respondent enough opportunity to face the charges against him, which the latter did not avail, the case was submitted for resolution on 6 March 1998.[15] The commissioners report dated 10 September 1998, recommending the disbarment of Atty. Alvin T. Sarita stated in part: As clearly established in the resolution of the Honorable Thirteenth Division of the Court of Appeals in its disquisition on his culpability, Atty, Sarita is liable not only for deliberately misleading if not deceiving the defendant-appellee MTC Judge into violating the appellate courts restraining order, but also for making false allegations that led his clients to commit a contemptuous act; As a member of the Bar, Atty. Sarita is mandated by his oath to obey the laws as well as the duly constituted authorities therein and not to do any falsehood nor consent to the doing of any in court; In filing his urgent ex-parte motion to implement the writ of demolition issued against the residence of the complainant, Atty. Sarita was well-aware that what he was seeking to do was specifically restrained by the court of Appeals in no uncertain terms. Even if we were inclined, in a gesture of utmost liberality, to hold for Atty. Saritas (sic) and resolve any doubts in his favor, we are simply overwhelmed by the thought that as a lawyer, Atty. Sarita knew quite well or must have known quite well that what he was asking for in his motion was violative not only of an order from the second highest court but more personally was violative of his own oath as a lawyer; The findings of the Court of Appeals says it all. What all the more moves the undersigned to recommend the ultimate penalty of disbarment against Atty. Alvin T. Sarita is the evident, even palpable disdain, in which he clearly holds this Office in particular, and the Integrated Bar in general. Nowhere is this disdain more felt than in Atty. Saritas deliberate and pointed refusal, not only to file an Answer to the complaint against him but also his unjustified refusal to appear before this Office despite repeated notices. It appears that Atty. Sarita is beyond caring for whatever sanctions this Office may recommend against him. Surely, he cannot turn his back on the possibility that the complainants prayer may be granted given the seriousness of his (Saritas) misdeeds. But then, considering that Atty. Sarita has no compunctions about misleading a judge of the Metropolitan Trial Court into disregarding and violating an order from the Court of Appeals, it is no surprise that he would ignore the Commission on Bar Discipline;

We recommend for the disbarment of Atty. Alvin T. Sarita. In its 4 December 1998 Resolution, the IBP Board of Governors resolved to adopt the findings of the investigating commissioner, to wit: RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner in the above-entitled case, herein made part of this Resolution/Decision as Annex A; and finding the recommendation fully supported by the evidence on record and the applicable laws and rules, Respondent Atty. Alvin T. Sarita isDISBARRED from the practice of law. The facts and evidence obtaining in this case clearly reveal respondents failure to live up to his duties as a member of the Bar in accordance with the Code of Professional Responsibility, the Lawyers Oath and Section 20 (b), Rule 138 of the Rules of Court, thus warranting disciplinary sanction. As an officer of the court, it is the duty of a lawyer to uphold the dignity and authority of the court, to which he owes fidelity, according to the oath he has taken. It is his foremost responsibility to o bserve and maintain the respect due to the courts of justice and judicial officers.[16] The highest form of respect to the judicial authority is shown by a lawyers obedience to court orders and processes. Atty. Alvin T. Sarita committed an immeasurable disservice to the judicial system when he openly defied the TRO issued by the Court of Appeals. By such act, he deliberately disregarded or ignored his solemn oath to conduct himself as a lawyer according to the best of his knowledge and discretion, with all good fidelity to the courts. He neglected his duties to observe and maintain the respect due to the courts of justice and judicial officers,[17] and to act with candor, fairness and good faith to the courts.[18] Moreover, even assuming ex gratia argumenti that the TRO issued by the Court of Appeals was ambiguous in its phraseology, respondent should have carried out the intent and the spirit of the said TRO rather than choose to be narrowly technical in interpreting and implementing the same. In De Leon vs. Torres,[19] this Court said: We desire to call attention to the fact that courts orders, however erroneous they may be, must be respected, especially by the bar or the lawyers who are themselves officers of the courts. Court orders are to be respected not because the judges who issue them should be respected, but because of the respect and consideration that should be extended to the judicial branch of the Government. This is absolutely essential if our Government is to be a government of laws and not of men. Respect must be had not because of the incumbents to the positions, but because of the authority that vests in them. Disrespect to judicial incumbents is disrespect to that branch of the

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Government to which they belong, as well as to the State which has instituted the judicial system. Not only did respondent disobey the order of the Court of Appeals, he also misled the trial court judge into issuing the order to implement the writ of demolition which led to the destruction of the family home of complainant. In doing so, respondent violated his oath of office and Canon 10, Rule 10.01 of the Code of Professional Responsibility which provides that a lawyer shall not do any falsehood nor consent to the doing of any in court. Surely, such conduct of respondent is starkly unbecoming of an officer of the court. Respondents behavior also exhibited his reckless and unfeel ing attitude towards the complainant. By disobeying the TRO issued by the Court of Appeals, he inflicted deep physical and moral injury upon complainant and his family by making them homeless. Obviously, it did not matter to him whether complainant and his family would still have a place to stay as long as he won the case for his client. We would like to emphasize that a lawyers responsibility to protect and advance the interests of his client does not warrant a course of action propelled by ill motives and malicious intentions against the other party.[20]Respondent failed to live up to this expectation. We find the complaint against respondent fully substantiated by the evidence. However, we believe that the penalty of disbarment imposed by the Board of Governors of the Integrated Bar of the Philippines is too severe and, hereby reduce it to suspension for two (2) years from the practice of law.[21] ACCORDINGLY, respondent Atty. Alvin T. Sarita is hereby SUSPENDED for two (2) years from the practice of law and from the enjoyment of all rights and privileges appurtenant to membership in the Philippine Bar, effective immediately. Let copies of this Resolution be furnished the Bar Confidant, the Integrated Bar of the Philippines and all courts throughout the country. SO ORDERED. Villaflor vs. Sarita (308 SCRA 129) Post under case digests, Legal Ethics at Monday, February 20, 2012 Posted by Schizophrenic Mind Facts: Complainant filed a case for disbarment against respondent before the IBP Commission on Bar Discipline. The Commissionerassigned to investigate the case issued an order directing respondent to file his answer or comment to the complaint. The period of time alloted to answer the complaint lapsed without respondent submitting his comment. An order was issued requiring

the parties to attend the hearing of

the

case but

the

respondent

failed

to

appear. A notice of hearing was sent to respondent but again he failed to attend the proceeding. After giving the respondent enough opportunity to face the charges against him, which the latter did not avail, the case was submitted for resolution.

Issue: Whether or not failure to obey notices from the IBP investigators constitutes an unethical act.

Held: Yes. As an officer of the court, it is the duty of a lawyer to uphold the dignity and authority of the court to which he owes fidelity, according to the oath he has taken. It is his foremostresponsibility to observe and maintain the respect due to the courts of justice and judicial officers. The highest form of respect to the judicial authority is shown by a lawyers obedience to court orders and processes. LIBERATO V. CASALS, and JOSE T. SUMCAD, petitioners, vs. HON. VICENTE N. CUSI, JR., Presiding Judge of the Court of First Instance of Davao, BR. 1, REBECCA T. PALANCA and GRECAN CO., INC., respondents. Ortile Law Office for petitioners. Delante, Orellan and Associates for private respondents. RESOLUTION

TEEHANKEE, J.: The Court imposes a three-months suspension from the practice of law upon counsel of respondents for improper conduct and abuse of the Court's good faith

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by his acts in the case at bar manifesting gross disrespect for the Court's processes and a willful disregard of his solemn duty to conduct himself with all good fidelity to the Court and tending to embarrass gravely the administration of justice. Upon the filing on November 2, 1972 of the petition at bar for certiorari and prohibition with prayer for writ of preliminary injunction, the Court as per its resolution of November 9, 1972 resolved, without giving due course to the petition, to require respondents to comment thereon within ten days from notice and to issue a temporary restraining order restraining respondent court inter alia from proceeding with the hearing of the case 1 pending before it below. Under date of December 8, 1972, Atty. Leonido C. Delante as counsel for respondents, stating that while he had received on November 15, 1972 notice of the Court's resolution of November 9, 1972, "no accompanying copy of the petition has been attached thereto, hence the undersigned counsel would not be able to prepare the comments of the respondents as directed in said resolution without said copy." filed his first motion for a ten-day extension of time from receipt of such petition within which to submit respondents' comment. The Court granted such first extension per its resolution of December 15, 1972. Under date of December 14, 1972, Atty. Primo O. Orellan on behalf of Delante, Orellan & Associates as counsel for respondents filed a verified second motion for extension of ten days from December 15, 1972 within which to submit respondents' comment on the ground "2. That Atty. L.C. Delante, counsel of record, got sick on December 6, 1972 and had not reported to work as yet" as per verified medical certificate attached to the motion and "3. That Atty. Delante has just recovered from his ailment, and has requested the undersigned to specially make this motion for another extension of TEN (10) days in order to enable him to finish the comments for the respondents." Under date of December 28, 1972, Atty. Leonido C. Delante filed a third motion for "a last extension of fifteen days from December 29, 1972 to submit the required comment, stating "That the undersigned counsel has already prepared the final draft of the desired comments, but due to pressure of work in his office and matters occasioned by the Christmas season, the same has not been finalized and typed out in a clean copy," for filing by the expiry date on December 28, 1972. The Court per its resolution of January 15, 1973 granted the said extensions totalling twenty-five days. Having noted respondents' failure to file their comment notwithstanding the numerous extensions sought by and granted to their counsel, which expired on January 12, 1973, the Court as per its resolution of April 12, 1973 resolved to require Atty. Delante as counsel for respondents to explain and show cause within ten days from notice why they failed to file the required comment.

Atty. Delante filed in due course his explanation dated May 7, 1973, wherein he claimed for the first time that "in view of (his) pressing professional commitments," he requested his clients "to have the answer ... prepared by another lawyer for which reason (respondents) took delivery of the records of the said case from his office and contracted the services of Atty. Antonio Fernandez." Atty. Delante goes on to claim that it was only upon receipt of the Court's resolution of April 12, 1973 requiring his explanation that he learned that Atty. Fernandez who had contracted "to prepare an answer, underwent a surgical operation," attaching a copy of Atty. Fernandez' affidavit together with a medical certificate which certified however to the latter's confinement at the Davao Doctors' Hospital only from "Dec. 23-26, 1972" and "(D)aily follow up: Dec. 26, 1972 Jan. 15, 1973." Atty. Fernandez in his affidavit however stated that after his services had been retained by respondents "sometime on December 12, 1972" he "had been confined in the Davao Doctors' Hospital and subsequently operated on for sinusitis" (on December 23-26, 1972) and that Gregorio Caeda, president of respondent Grecan Co. Inc. "saw me in the hospital and asked from me the answer and I told him that I may not be able to proceed and prepare the answer because of the operation that I just had, hence he got the records of the case G.R. No. L-35766 from me." Atty. Delante further submitted the so-called "affidavit" dated May 5, 1973 of Gregorio Caeda, president and general manager of respondent Grecan Co. Inc. supporting his belated claim now that their corporation contracted the services of Atty. Fernandez "to prepare the answer to meet the deadline" and delivered the records of the case to the latter. The so-called "affidavit" is however not sworn to before any official authorized to administer oaths but merely carries the statement "(T)hat the foregoing facts are true and correct as what actually transpired" under the signature of one Rebecca T. Palanca (SecretaryTreasurer)." Atty. Delante pleads that "it is far from (his) intention to cause any undue delay in the disposition of the above-entitled case," and "(T)hat this is the first time it happened to him, and that if given an opportunity to prepare the answer, he will try his best to do it within the period granted by this Honorable Tribunal, and that he assures this Honorable Tribunal that there would be no repetition of this similar incident in the future." He prays that his explanation be accepted and without blinking an eye notwithstanding that the required comment has long been overdue for almost four months at the time that he "be given an opportunity to prepare the necessary answer for the respondents." Counsel for petitioners promptly filed their comments dated May 11, 1973 citing the inconsistencies and contradictions in Atty. Delante's explanation, opposing his plea to still be allowed to file respondents' comment after his "gross and

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inexcusable negligence" and praying that the petition be considered submitted for resolution by the Court. In an earlier resolution of July 9, 1973, the Court took action on the petition and dismissed the same for insufficient showing of grave abuse of discretion on the part of respondent court in denying petitioners' motion to dismiss the case below and appeal in due course from any adverse decision on the merits being the merits being the proper and adequate remedy. The present resolution concerns Atty. Delante's explanation which the Court finds to be unsatisfactory. Atty. Delante's present explanation that his failure to file respondents' comment is due to the failure of the other lawyer, Atty. Fernandez, contracted by his clients at his instance because of his pressing professional commitments "to do so, because of a surgical operation," is unworthy of credence because it is contrary to the facts of record: In his previous motions for extension, he never mentioned his belated allegation now that another lawyer had been retained to file the required comment, and no other lawyer, much less Atty. Fernandez, ever entered an appearance herein on behalf of respondents; In his second motion for extension, supra, Atty. Delante's law office cited as reason the fact that he had gotten sick on December 6, 1972 and had just recovered and needed the additional 10-day extension "in order to enable him to finish the comments for the respondents;" In his third motion for a last 15-day extension, Delante assured the Court "that (he) has already prepared thefinal draft of the desired comments" and cited "pressure of work in his office" and the Christmas Season for not having "finalized and typed out (the comments) in a clean copy" which comments never came to be submitted to this Court; His present explanation is not even borne out by Atty. Fernandez' medical certificate which shows that he was confined in the hospital for sinusitis only from December 23-26, 1972 and therefore had sufficient time and opportunity to submit the comments by the extended deadline on January 12, 1973; Atty. Fernandez' own affidavit as submitted by Atty. Delante belies the latter's claim that the records of the case had been given to the former, for Atty. Fernandez swore therein that when Gregorio Caeda of respondent corporation saw him at the hospital (sometime between December 23-26, 1972)

he advised Caeda of his inability to prepare the "answer" and Caeda got back the records of the case from him; He submits no explanation whatsoever, why if his "final draft of the desired comments" was "already prepared" since year-end of 1972 and only had to be "finalized and typed out" he utterly failed to submit the same notwithstanding the lapse of over six months and worse, in his "explanation" of May 7, 1973 asked yet for "an opportunity to prepare the anser [which] he will try his best to do it within the period granted by the Honorable Tribunal" when he had utterly ignored and disregarded the numerous extensions granted him which lapsed on January 12, 1973; and He likewise submits no explanation for his gross neglect in not seeing to it, assuming that Atty. Fernandez was to prepare the required comment, that the required comment was filed within the last extension (that expired on January 12, 1973) secured by him from the Court on his assurance that the final draft was ready and did nothing for three months until after he received the Court's resolution of April 12, 1973 requiring his explanation. The Court thus finds unsatisfactory Atty. Delante's explanation for his having allowed his extended period to lapse without submitting the required comment nor extending to the Court the courtesy of any explanation or manifestation for his failure to do so. His inaction unduly prevented and delayed for a considerable period the Court's prompt disposition of the petition. Worse, when this was noted and the Court required his explanation, he gave an explanation that is devious and unworthy of belief since it is contradicted by his own previous representations of record as well as by the "supporting" documents submitted by him therewith, as shown hereinabove. Furthermore, notwithstanding the lapse of over six months which he let pass without submitting the required comment which according to his motion of December 28, 1972 was "already prepared" by him and was only to be typed in clean, Atty. Delante in his explanation still brazenly asked the Court for a further period to submit respondents' comment which supposedly had been readied by him for submittal six months ago. His cavalier actions and attitude manifest gross disrespect for the Court's processes and tend to embarrass gravely the administration of justice. In Pajares vs. Abad Santos 2 the Court reminded attorneys that "There must be more faithful adherence to Rule 7, section 5 of the Rules of Court which provides that "the signature of an attorney constitutes a certificate by him that he has read the pleading and that to the best of his knowledge, information and belief, there is good ground to support it; and that it is not interposed for delay" and expressly admonishes that "for a willful violation of this rule an attorney may be subjected to disciplinary action."

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It should also not be necessary to remind attorneys of their solemn oath upon their admission to the Philippine Bar, that they will do no falsehood and conduct themselves as lawyers according to the best of their knowledge and discretion good fidelity to the courts and their clients. The unsatisfactory explanation given by Atty. Delante as against the pleadings of record in the case at bar evinces a willful disregard of his solemn duty as an attorney to employ in the conduct of a case "such means only as are consistent with truth and honor, and never seek to mislead" the courts "by an artifice or false statement of false statement of fact or law." 3 The Court has ever stressed that a lawyer must do his best to honor his oath, as there would be a great detriment to, if not a failure of the administration of justice if courts could not rely on the submissions and representations made by lawyers in the conduct of a case. As stated by the Court in one case, "Time and time again, lawyers have been admonished to remember that they are officers of the court, and that while they owe their clients the duty of complete fidelity and the utmost diligence, they are likewise held to strict accountability insofar as candor and honesty towards the court is concerned." 4 Hence, the Court has in several instances suspended lawyers from the practice of law for failure to file appellants' briefs in criminal cases despite repeated extensions of time obtained by them, (except to file the missing briefs), with the reminder that "the trust imposed on counsel in accordance not only with the canons of legal ethics but with the soundest traditions of the profession would require fidelity on their part." Considering, however, that counsel's record shows no previous infractions on his part since his admission to the Philippine Bar in 1959, the Court is inclined to act in a spirit of leniency. ACCORDINGLY, the Court hereby suspends Atty. Leonido C. Delante from the practice of law for a period of three (3) months effective from his receipt of notice hereof, with the warning that repetition of the same or similar acts shall be dealt with more severely. The clerk of court is directed to circularize notice of such suspension to the Court of Appeals and all courts of first instance and other courts of similar rank. Let copies of this resolution be filed in his personal record and furnished to the Integrated Bar of the Philippines. THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALFONSO MANANGAN, alias ONSONG, accused-appellant.

Solicitor General Felix, Q. Antonio, Assistant Solicitor General Hector C. Fule and Solicitor Santiago M. Kapunan for plaintiff-appellee. Panfilo Valdez for accused-appellant.

AQUINO, J.:p This is a murder case. The prosecution's evidence shows that at about one o'clock in the morning of November 13, 1968, while Alejo Cayago and his wife Rosanna Garlitos were sleeping in their house located at Barrio Vedania, Mangatarem, Pangasinan, they were awakened by a noise coming from the corral where their carabao was tethered. Suspecting that someone was going to steal their carabao, Cayago stood up and went to the batalan (porch) which was a little over five feet above the ground. He felt the urge to urinate. While answering that call of nature, he was successively shot five times. He died instantly. He was a former barrio captain. He served in that position for twelve years. Cayago's house was two meters wide and four meters long. The batalan, which was an open porch without any walls (except on the eastern side), had a flooring made of bamboo slats which were three-fourths of an inch apart. It was adjacent to the bedroom. . Rosalina heard her husband urinating and also heard the shots which seemed to have emanated from a point west of the silong or the ground below the batalan (44 tsn). She took a three-battery flashlight, which she usually kept in the house, and went to the batalan to investigate. It was a moonlit night (75 tsn). A gory sight greeted her. Her husband, lying in a pool of his own blood, was prostrate on the batakin, face up. "His head was towards the north and his face was towards the south" (53 tsn). She beamed her flashlight at a person who was running in the direction of the fence. She saw the face of Alfonso Manangan (Onsong). He was wearing a furlike black hat, with a rounded brim. Its front part was folded upward. He was armed with a carbine. He was four meters away from her. When the light was focused on him, Manangan turned around and faced Rosalina. He shot her three times. Two shots grazed her left leg and left knee (Exh. B). Rosalina immediately took refuge inside the house and shouted for Manangan and his four companions (who were near the corral) ran had known Manangan for a long time. He is her compadre, being a sponsor of Carlos, her second child. She used to see him and meet help while away. She baptismal him many

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times. He had resided in Barrio Vedania for about ten years. His house was about sixty meters away from Cayago's house. He was formerly a barrio councilman. Sometime after Rosalina shouted for help, Felipe Cristobal, the barrio captain, arrived and found Cayago already dead. Rosalina revealed to Cristobal that Manangan had shot her husband. Cristobal lost no time in reporting the killing to the police on that same morning of November 13. He informed the chief of police that Rosalina was able to identify Manangan as the gunwielder who shot her and her husband. The chief of police, together with Doctor Raymundo Velasquez, the municipal health officer, and another policeman proceeded to Barrio Vedania to investigate the killing. They arrived at Cayago's house at eight o'clock in the morning. Doctor Velasquez found five entrance bullet wounds located below the left nipple and knee and five exit wounds (Exh. A). As the trajectory of the bullets was upward, he concluded that the assailant was below the victim. He surmised that the barrel of the gun was about two meters away from the victim. He calculated that the thirty-seven-year old victim died at about one o'clock in the morning of November 13. Death was instantaneous and was attributable to severe shock, secondary to the gunshot wounds (Exh. A). Doctor Velasquez also examined the thirty-one-year old Rosalina G. Cayago. She sustained abrasions in the right leg and knee which would heal within three to five days (Exh. B) and were caused probably by the grazing of a bullet (9 tsn). The chief of police prepared a sketch (Exh. C). He found eight empty shells, five under the house and three near thebatalan (Exh. C to C-7). Considering the location of the shells, the chief of police surmised that the assailant was at the point marked Exhibit B-8 in the sketch. The distance between that point and the point where blood was found (Exh. B-6) was around three to four meters. That circumstance confirms Mrs. Cayago's testimony. On that same morning of November 13th, the chief of police, together with Cristobal and some rural policemen, looked for Manangan at his house in Barrio Vedania. They were informed that he was not there. The motive for the killing was that Manangan suspected Cayago of having reported to the barrio captain that Manangan had stolen a fishing net. Manangan resented that action of Cayago. He said that Cayago had a predilection for making reports. On All Saints' Day or about twelve days before the killing Cayago and Manangan had a rencontre in Barrio Nancalasan on the occasion of a funeral. Manangan tried to assault Cayago. The persons present at the scene of the encounter, among whom was Lydia de Guzman, a neighbor of

Cayago and Manangan, pacified them. Manangan, on being pulled away from Cayago, reviled him by saying: "Pare, torpe ca, traidor ca" (114 tsn; Exh. 3). Cayago had been apprehensive that Manangan would harm him. He told his wife that Manangan was furious because of his report that he (Manangan) had stolen the fishing net. On November 15 or two days after the killing Mrs. Cayago executed an affidavit in the office of the chief of police, She, pointed to Manangan as the killer (Exh. 1). On that date the chief of police filed a complaint for murder against Manangan. Lydia de Guzman, a thirty-three-year old resident of Barrio Vedania, executed an affidavit dated November 18, 1968. She indicated therein that Cayago and Manangan were enemies. * In March, 1969, while Manangan was in Guimba, Nueva Ecija, attending the town fiesta, he was detained in the municipal jail. The chief of police of Guimba wrote a letter to the chief of police of Mangatarem, inquiring whether there was a criminal case against Manangan. The Mangatarem chief of police went to Guimba. He learned that Manangan had been transferred to the Constabulary stockade at Cabanatuan City. He was arrested there by the chief of police of Mangatarem. On April 22, 1969 the fiscal filed against Manangan an information for murder. After the trial, the lower court convicted him of murder, sentenced him to reclusion perpetua and ordered him to indemnify the heirs of Alejo Cayago in the sum of twelve thousand pesos (Criminal Case No. 23265). Manangan appealed. He contends that the trial court erred (1) in basing the judgment of conviction on the uncorroborated testimony of the victim's wife, (2) in giving credence to an alleged threatening note found in the middle of the Ladiawan River and (3) in holding that there was premeditation. Appellant Manangan's defense of alibi was that on November 13, 1968, when Cayago was killed, he (Manangan) was in San Clemente, Tarlac, where he had been residing since 1966, after he sold his house in Barrio Vedania to Edoy Cario. In San Clemente, he was a tenant of Maximino Dumlao in Barrio Casipoc. He said that his son, Vic, was studying in San Clemente. His story was that on the night of November 12, 1968 he was gathering the palay which he harvested from Dumlao's land. He and his companions piled the palay harvests near Dumlao's house in the poblacion of San Clemente, He was seen in that place at past midnight of the following day by Acting Chief of Police Rizalino Galicia and Patrolman Simplicio Laragan who were on night patrol.

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The trial court, in disbelieving appellant's alibi, took into account the declarations of the chief of police of Mangatarem and the barrio captain that Manangan was a resident of Barrio Vedania. In the morning of November 13, 1968, when the killing was reported to them, they repaired to Manangan's house in Barrio Vedania. They encountered therein a child of Manangan (presumably Vic Manangan) who informed them that his father was not in the house. The trial court regarded the testimonies of those two public officials, affirming the truth of a certain fact, as more credible than the denial of Manangan and his witnesses that he was a resident of Barrio Vedania. It should be noted that the distance of seven to eight kilometers between San Clemente and Barrio Vedania can be traversed by walking in one and a half hours. So, it was possible for Manangan to be in Barrio Vedania at the time the crime was committed and to flee thereafter to San Clemente. There are discrepancies in the testimonies of the defense witnesses as to the date when Alfonso Manangan transferred from Barrio Vedania to San Clemente, Tarlac. The discrepancies impair his alibi. Alfonso Manangan, testifying on March 11, 1970, declared that he had been Dumlao's tenant in San Clemente for almost four years (71 tsn) or since 1966 when he allegedly moved to San Clemente (77 tsn). Dumlao testified that Manangan had been his tenant since May, 1968 (140 tsn). Canuto Castaneda testified that he came to know in 1967 that appellant Manangan was residing in San Clemente (162-3 tsn). Vicente Manangan, appellant's brother, declared that Alfonso Manangan had been residing in San Clemente since 1967 (185 tsn). Acting Chief of Police Galicia of San Clemente, a barriomate of Alfonso Manangan, testified that the latter commenced to reside in Maximino Dumlao's house in San Clemente in May; 1968. Galicia knew that, before that date, Manangan was residing at Barrio Vedania (53 tsn). On the other hand, Vic Manangan, appellant's eleven-year old son, testified that, when he was in the fourth grade, during the schoolyear 1967-68, he was studying in Barrio Vedania because he was then living in that barrio with his parents (92, 139 tsn). We agree with the trial court that appellant's alibi is not adequate to exculpate him. Appellant contends that no probative value should be given to the unsigned list of persons to be assassinated, which was allegedly found in the middle of the Ladiawan River and which was not presented in evidence. That contention is tenable.

But even if that list is ignored, the eyewitness-testimony of Mrs. Cayago that she saw Manangan in the yard of her house immediately after five gunshots were fired at her husband and that he (Manangan) even fired at her, when she trained her flashlight on his face, is sufficient to establish appellant's guilt. The motive for the killing had been indubitably proven. Manangan assails the credibility of Mrs. Cayago or Rosario Garlitos. He argues that her testimony that she saw Manangan coming from under the house, after the gunshot explosion allegedly under the house" is not true because he (Manangan) "was never under the house". The transcript of stenographic notes shows that Rosario did not testify that Manangan emerged from the "silong" or ground under the porch. She declared that she saw Manangan at a distance of about four meters from the porch (20, 46 tsn). She did not categorically state that Manangan came from under the porch. Rosario was intensively grilled during the cross-examination. She never wavered in her identification of Manangan. She even described his hat. She had known Manangan for a long time. The defense had not offered any explanation as to why she would falsely impute the crime of murder to Manangan who was her neighbor and compadre. Her credible testimony was not destroyed by Manangan's alibi. The killing was qualified by treachery (alevosia). It was treacherous to shoot Cayago at night, while he was urinating on the porch and when he did not expect at all that his enemy, Manangan, was only four meters away aiming a carbine at him. It was an ambuscade. Manangan resorted to a mode of execution that insured the consummation of the killing without any risk to himself arising from any defense which the victim could have made. Cayago was unarmed and absolutely defenseless (See Art. 14[16], Revised Penal Code). Evident premeditation was alleged in the information. The Solicitor General, who acknowledges that treachery was proven, noted that evident premeditation was also present but he recommends affirmance of the penalty of reclusion perpetua imposed by the trial court. If premeditation were aggravating, the penalty would be death inasmuch as no mitigating circumstance was present. Appellant Manangan impugns the trial court's finding that there was premeditation. The lower court said that Cayago had a premonition that Manangan would kill him. It noted that Cayago apprised his wife of his fear of Manangan. Cayago had to sleep in different houses after he learned that Manangan might liquidate him. We have studied carefully the circumstances preceding the killing and the implications of a finding that it was attended with evident premeditation. The rule is that premeditation must be established with equal certainty and clearness as the criminal act itself (U.S. vs. Navarro, 7 Phil. 713). "La

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premeditacion ha de ser conocida, lo que significa que resulte de signos reiterados y externos, no de meras sospechas." "No basta que sea meramente sospechada" (1 Cuello Calon, Codigo Penal 12th Ed. 561; Id, Tomo II 462). The prosecution should establish (a) the time when the offender determined to commit the crime, (b) an act manifestly indicating that the culprit had clung to his determination, and (c) a sufficient interval of time between the determination and the execution of the crime to allow him to reflect upon the consequences of his act and to allow his conscience to overcome the resolution of his will (vencer las determinaciones de la voluntad) had he desired to hearken to its warnings (U.S. vs. Gil, 13 Phil. 530, 547). It must affirmatively appear from the overt acts of the accused that he had definitely resolved to commit the offense, that he had from then on coolly and dispassionately reflected both on the means of carrying his resolution into execution and on the consequences of his criminal design, and that an appreciable length of time had elapsed as to expect an aroused conscience to otherwise relent and desist from the accomplishment of the proposed crime (People vs. Fuentesuela, 73 Phil. 553). The criminal intent evident from outward acts must be notorious and manifest, and the purpose and determination must be plain and have been adopted after mature consideration on the part of the person who conceived and resolved upon the perpetration of the crime, as a result of deliberation, meditation and reflection sometime before its commission (U.S. vs. Banagale, 24 Phil. 69; People vs. Zapatero, L-31960, August 15, 1974; People vs. Manzano, L-33643, July 31, 1974). It is true that about twelve days before the killing Manangan tried to injure Cayago. He desisted after he was restrained by third persons who intervened during the altercation. The prosecution's evidence does not show the steps that Manangan took thereafter in order that he could kill Cayago on that fateful hour in the early morning of November 13, 1968 when the latter was answering a call of nature on the porch of his house. Possibly, the killing was actually premeditated. What we merely say is that the prosecution's evidence is not conclusive on the presence of that aggravating circumstance. Appellant's first assignment of error on that score is well-taken. Since no generic aggravating and mitigating circumstances attended the commission of the murder, the penalty for that crime should be imposed in its medium period, which is reclusion perpetua (Arts. 64[1] and 248, Revised Penal Code).

WHEREFORE, the trial court's judgment is affirmed with t costs against the appellant. SO ORDERED.

G.R. No. L-30362, Aguinaldo v. Bagawisan, 36 SCRA 137 Republic of the Philippines SUPREME COURT Manila EN BANC

DECISION

November 26, 1970

G.R. No. L-30362 VICTORIA AGUINALDO and SIMEONA AGUINALDO, plaintiffs-appellees, vs. SEGUNDO AGUINALDO (deceased), PRIMO AGUINALDO and RUFINA AGUINALDO, defendants, CECILIO AGUINALDO, ANASTACIA AGUINALDO, SIMPLICIO AGUINALDO, DOMINGO AGUINALDO, and FELICITAS BAGAWISAN, defendants-appellants. FERNANDO, J.: Fernando, J.: Any effort on the litigant to delay, if not to defeat, the enforcement of a final judgment, executory in character, by raising an objection that at best hardly

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rises to the level of a technicality is not likely to elicit the sympathy of this Court or any court for that matter. Yet, in effect, that is what the move taken by the defendants in his case amounted to. The lower court as was but proper did not lend its approval. Still undeterred, they would appeal. They ought to have known better. There is no reason to refuse affirmance to the order of the lower court complained of, appointing appellants as legal representatives of the deceased defendant and substituted in his place pursuant to the Rules of Court in order that the execution that ought that have taken place long since could at long last be effected.

the effect that in the event of the death of a party to a pending case, it is the duty of his attorney to give the name and residence of his executor, administrator, guardian, or their legal representative and alleging that there was a failure on the part of the counsel to comply with the above provision. The prayer was for the denial of the motion of Cecilio Aguinaldo and for an order requiring counsel for the defendants to furnish the court the names as well as the residences of the heirs or the legal representatives of the deceased in order that they could be substituted in his stead so as not to render nugatory a decision, final and executory in character. On March 4, 1965, the lower court, then presided by the Hon. Ricardo C. Puno gave counsel of record up to March

There is no dispute as to the antecedents. On January 14, 1965, the Court of First Instance of Bulacan, Branch II through its clerk issued a writ of execution reciting that as far back as March 31, 1958, it rendered a decision in favor of plaintiffs, 1 now appellees, requiring one of the defendants therein, Segundo Aguinaldo, to reconvey one-fourth () pro-indiviso of the property in litigation to appellees, and to pay the latter the amount of P300.00 yearly beginning with the year 1955. There was an appeal. The decision was affirmed by the Court of Appeals on May 23, 1965. It was further set forth therein that on January 5, 1965, a motion for its execution was granted. Hence the writ of execution. On February 13 of the same year, one Cecilio Aguinaldo filed an urgent ex partemanifestation and motion to quash such writ of execution based primarily on the allegation that defendant Segundo Aguinaldo died on August 7, 1959 during the pendency of such appeal. There was an opposition to such motion on February 25, 1965, inviting attention to Sec. 16, Rule 3 of the Rules of Court to

22, 1965 within which to submit the name and residence of the executor, administrator, guardian or other legal representative of the deceased Segundo Aguinaldo. The aforesaid counsel in turn merely manifested on March 23, 1965 that he had ceased to be such as of May 31, 1956, and that such a pleading be considered sufficient compliance with the aforesaid order. Considering the turn of events, plaintiffs, in order that such a decision in their favor be not rendered nugatory by the above technicality, had no choice but to ask the court in a motion of April 7, 1965 to have the heirs of the deceased Segundo Aguinaldo, defendants Cecilio, Anastasia, Simplicio and Domingo, all bearing the surname of Aguinaldo being the legitimate children, and one Felicitas Bagawisan, a granddaughter, substituted as defendants. On October 5, 1965, the lower court, this time presided by Judge Andres Sta. Maria, granted the aforesaid motion and substituted defendants in place of the deceased Segundo Aguinaldo.

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Hence this appeal to the Court of Appeals, which in turn by resolution of February 17, 1969 certified the matter to this Court, the question involved being one of law. As noted at the outset, we find for appellees.

interpret or reverse the judgment of the higher court." 4What was said by us in Li Kim Tho v. Sanchez 5 is worth recalling: "Litigation must end and terminate sometime and somewhere, and it is essential to an effective and efficient administration of justice that, once a judgment has become final, the winning

1. It would be the height of unreason to impute error to the lower court precisely for embodying in the order complained of what is set forth in the Rules of Court. Thus: "Whenever a party to a pending case dies, becomes incapacitated or incompetent, it shall be the duty of his attorney to inform the court promptly of such death, incapacity or incompetency, and to give the name and residence of his executor, administrator, guardian or other legal representative." 2Had the defendant, thereafter deceased, seen to it that a new counsel was appointed, then upon his death there could be compliance with the above provision. To cause plaintiffs to suffer for such neglect of duty is to cast an underserved reflection on the law. It is equally vital to remember that the judgment had become final and the stage of execution reached. Defendants cannot be heard to allege that it is much too late now to apply the above rule. That would be to set at naught the principle consistently adhered to by this Court.

party be not, through a mere subterfuge, deprived of the fruits of the verdict. Courts must therefore guard against any scheme calculated to bring about that result. Constituted as they are to put an end to controversies, courts should frown upon any attempt to prolong them." 6 An excerpt from Villaflor v. Reyes 7 is equally relevant: "There should be a greater awareness on the part of litigants that the time of the judiciary, much more so of this Court, is too valuable to be wasted or frittered away by efforts, far from commendable, to evade the operation of a decision final and executory, especially so, where, as shown in this case, the clear and manifest absence of any right calling for vindication, is quite obvious and indisputable." 8

2. This appeal, moreover, should fail, predicated as it is on an insubstantial objection bereft of any persuasive force. Defendants had to display ingenuity to conjure a technicality. From Alonso v. Villamor, 9 a 1910 decision, we have left no doubt as to our disapproval of such a practice. The aim of a lawsuit is to

It was succinctly put in Amor v. Jugo 3in these words: "And with more compelling reason the respondent court cannot refuse to issue such writ, or quash it or order its stay, when the judgment had been reviewed and affirmed by an appellate court, for it cannot review or interfere with any matter decided on appeal, or give other or further relief, or assume supervisory jurisdiction to

render justice to the parties according to law. Procedural rules are precisely designed to accomplish such a worthy objective. Necessarily, therefore, any attempt to pervert the ends for which they are intended deserves condemnation. We have done so before. We do so again.

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WHEREFORE, the order of October 5, 1965 is affirmed.

petition for review and after having secured for the purpose an extension (on the ground of pressure of work) filed on July 12, 1976 his explanation. The burden of both pleadings is that the first petition to set aside the Court of Appeals affirmance of petitioners conviction was a special civil action of certiorari under Rule 65, while the second petition was one for review under Rule 45. 1 The explanation is manifestly unsatisfactory. However zealous may be counsel's concern and belief in the alleged innocence of the petitioners, it is elementary that counsel may not split their appeal into one to set aside the appellate court's denial of petitioners appellants' motion for reconsideration of its decision affirming the trial court's judgment of conviction and/or for new trial (the first petition) and into another to set aside the appellate court'sdecision itself, which affirmed the trial court's conviction of the petitioners-appellants (the second petition). Such filing of multiple petitions constitutes abuse of the Court's processes and improper conduct that tends to impede obstruct and degrade the administration of justice and will be punished as contempt of court. 2 Needless to add, the lawyer who filed such multiple or repetitious petitions (which obviously delays the execution of a final and executory judgment) subjects himself to disciplinary action for incompetence (for not knowing any better or for willful violation of his duties as an attorney to act with all good fidelity to the courts and to maintain only such actions as appear to him to be just and are consistent with truth and honor. 3 Thus in several instances in the past, the Court has admonished that (L)itigants and their counsels are warned under pain of contempt and disciplinary action that a party who has already failed to have a decision of the Court of Appeals set aside through a petition for review by certiorari with the denial of his petition (by the First Division to which such petitions for review are assigned under the Court's standing resolution of November 15, 1973) should not under the guise of a special civil action file a second petition for the same purpose of setting aside the same Court of Appeals' decision to be acted upon by the Second Division (to which special civil actions are assigned under the Court's resolution of November 15, 1973). and vice-versa, for such conduct would tend to trifle with the Court and impede, obstruct and impede the administration of justice". 4 Respondent Atty. Orteza is therefore adjudged guilty of contempt of court and is ordered to pay a fine of Five Hundred (P500.00) pesos with ten (10) days from notice hereof failing which, he shall be imprisoned for a period of (50) days. While further administrative action against him is herewith forborne, he is hereby warned that a future repetition or the same or similar incident will be dealt with more severely.

This decision is immediately executory. Treble costs against defendants. REGINO GABRIEL and JAIME TAPEL, petitioners, vs. THE HON. COURT OF APPEALS, and THE PEOPLE OF THE PHILIPPINES, respondents. In re: Contempt citation against Atty. Cornelio M. Orteza, respondent. RESOLUTION

TEEHANKEE, J.: In the Court's Resolution of June 11, 1976, the petition (filed on May 31, 1976) in the cases at bar for review of the Court of Appeals decision of November 28, 1975 which affirmed in toto the Manila court of first instance's judgment of September 27, 1968 convicting, after joint trial, the two petitioners accused of the crime of theft, was denied for lack of merit. The Court further noted therein that a first petition for the same purpose filed through another lawyer on March 6, 1976 had been previously denied and final judgment entered on May 10, 1976, and cited Atty. Cornelio M. Orteza who filed the second petition at bar for contempt and/or for disciplinary action, as follows: ... Considering the allegations, issues and arguments adduced in the petition for review on certiorari of the decision of the Court of Appeals, the Court Resolved to DENY the petition for lack of merit, a previous petition for review of the same decision docketed as G.R. Nos. L- 43113-14 having filed by petitioners on March 6, 1976 thru Atty. Rodolfo D. Mapile and denied as per resolution of March 15, 1976 and entry of final judgment having been made on May 10, 1976. Atty. Cornelio M. Orteza is hereby required to SHOW CAUSE why he should not be held in contempt and/or disciplinary dealt with for filing a second petition on behalf of the same petitioners for review of the same decision of the Court of Appeals which was already previously denied with finality within ten (10) days from notice hereof. Respondent Atty. Orteza still filed without leave of court on July 6, 1976 a motion for reconsideration of the Court's above-quoted resolution denying his

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Petitioners' purported motion for reconsideration of the Court's resolution of June 11, 1976 denying their second petition is ordered expunged from the records as a sham motion, (as is the second petition itself), since the decision sought, to be reviewed has long become final and executory with the entry on May 10, 1976 of final judgment of denial of the first petition. Let copies hereof be furnished the Integrated Bar of the Philippines and attached to his Personal record. SO ORDERED. ENCARNACION BANOGON, ZOSIMA MUNOZ, and DAVIDINA MUNOZ, petitioners, vs. MELCHOR ZERNA, CONSEJO ZERNA DE CORNELIO, FRANCISCO ZERNA, and the HON. CIPRIANO VAMENTA, JR., Judge of the Court of First Instance of Negros Oriental (Branch III).

For their part, the private respondents argue that the decision of February 9, 1926, became final and executory after 30 days, same not having been appealed by the petitioners during that period. They slept on their rights forthirty one years before it occurred to them to question the judgment of the cadastral court. In fact, their alleged predecessor-in-interest, Filomeno Banogon, lived for nineteen more years after the 1926 decision and did not see fit to challenge it until his death in 1945. The herein petitioners themselves waited another twelve years, or until 195 7, to file their petition for review. 5 While arguing that they were not guilty of laches because the 1926 decision had not yet become final and executory because the land subject thereof had not yet been registered, the petitioners rationalize: "If an aggrieved party is allowed the remedy of re-opening the case within one year after the issuance of the decree, why should the same party be denied this remedy before the decree is issued? 6 Why not indeed? Why then did they not file their petition earlier? Why do they now pretend that they have all the time in the world because the land has not yet been registered and the one-year reglementary period has not yet expired?

CRUZ, J.: It's unbelievable. The original decision in this case was rendered by the cadastral court way back on February 9, 1926, sixty one years ago. A motion to amend that decision was filed on March 6, 1957, thirty one years later. This was followed by an amended petition for review of the judgment on March 18, 1957, and an opposition thereto on March 26, 1957. On October 11, 1971, or after fourteen years, a motion to dismiss the petition was filed. The petition was dismissed on December 8, 1971, and the motion for reconsideration was denied on February 14, 1972.1 The petitioners then came to us on certiorari to question the orders of the respondent judge. 2 These dates are not typographical errors. What is involved here are errors of law and lawyers. The respondent court dismissed the petition for review of the decision rendered in 1926 on the ground that it had been filed out of time, indeed thirty one years too late. Laches, it was held, had operated against the petitioners. 3 The petitioners contend that the said judgment had not yet become final and executory because the land in dispute had not yet been registered in favor of the private respondents. The said judgment would become so only after one year from the issuance of the decree of registration. If any one was guilty of laches, it was the private respondents who had failed to enforce the judgment by having the land registered in their the pursuant thereto. 4

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

where it

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

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their petition now. Their position is clearly contrary to law and logic and to even ordinary common sense. This Court has repeatedly reminded litigants and lawyers alike: "Litigation must end and terminate sometime and somewhere, and it is assent essential to an effective and efficient administration of justice that, once a judgment has become final, the winning party be not, through a mere subterfuge, deprived of the fruits of the verdict. Courts must therefore guard against any scheme calculated to bring about that result. Constituted as they are to put an end to controversies, courts should frown upon any attempt to prolong them." 8 There should be a greater awareness on the part of litigants that the time of the judiciary, much more so of this Court, is too valuable to be wasted or frittered away by efforts, far from commendable, to evade the operation of a decision final and executory, especially so, where, as shown in this case, the clear and manifest absence of any right calling for vindication, is quite obvious and indisputable. 9 This appeal moreover, should fail, predicated as it is on an insubstantial objection bereft of any persuasive force. Defendants had to display ingenuity to conjure a technicality. From Alonso v. Villamor, a 1910 decision, we have left no doubt as to our disapproval of such a practice. The aim of a lawsuit is to render justice to the parties according to law. Procedural rules are precisely designed to accomplish such a worthy objective. Necessarily, therefore, any attempt to pervert the ends for which they are intended deserves condemnation. We have done so before. We do so again. 10 Regarding the argument that the private respondents took fourteen years to move for the dismissal of the petition for review, it suffices to point out that an opposition thereto had been made as early as March 26, 1957, or nine days after the filing of the petition. 11 Moreover, it was for the petitioners to move for the hearing of the petition instead of waiting for the private respondents to ask for its dismissal. After all, they were the parties asking for relief, and it was the private respondents who were in possession of the land in dispute. One reason why there is a degree of public distrust for lawyers is the way some of them misinterpret the law to the point of distortion in a cunning effort to achieve their purposes. By doing so, they frustrate the ends of justice and at the same time lessen popular faith in the legal profession as the sworn upholders of the law. While this is not to say that every wrong interpretation of the law is to

be condemned, as indeed most of them are only honest errors, this Court must express its disapproval of the adroit and intentional misreading designed precisely to circumvent or violate it. As officers of the court, lawyers have a responsibility to assist in the proper administration of justice. They do not discharge this duty by filing pointless petitions that only add to the workload of the judiciary, especially this Court, which is burdened enough as it is. A judicious study of the facts and the law should advise them when a case, such as this, should not be permitted to be filed to merely clutter the already congested judicial dockets. They do not advance the cause of law or their clients by commencing litigations that for sheer lack of merit do not deserve the attention of the courts. This petition is DISMISSED, with costs against the petitioners. This decision is immediately executory. It is so ordered. As officers of the court, lawyers have a responsibility to assist in the proper administration of justice. They do not discharge this duty by filing pointless petitions that only add to the workload of the judiciary, especially this Court, which is burdened enough as it is. A judicious study of the facts and the law should advise them when a case, such as this, should not be permitted to be filed to merely clutter the already congested judicial dockets. They do not advance the cause of law or their clients by commencing litigations that for sheer lack of merit do not deserve the attention of the courts.

Facts: Its unbelievable. The original decision in this case was rendered by the cadastral court way back on February 9, 1926, sixty one years ago. A motion to amend that decision was filed on March 6, 1957, thirty one years later. This was followed by an amended petition for review of the judgment on March 18, 1957, and an opposition thereto on March 26, 1957. On October 11, 1971, or after fourteen years, a motion to dismiss the petition was filed. The petition was dismissed on December 8, 1971, and the motion for reconsideration was denied

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on February 14, 1972. The petitioners then came to us on certiorari to question the orders of the respondent judge. The petitioners contend that the said judgment had not yet become final and executory because the land in dispute had not yet been registered in favor of the private respondents. The said judgment would become so only after one year from the issuance of the decree of registration. If anyone was guilty of laches, it was the private respondents who had failed to enforce the judgment by having the land registered in their the pursuant thereto. For their part, the private respondents argue that the decision of February 9, 1926, became final and executory after 30 days, same not having been appealed by the petitioners during that period. They slept on their rights for thirty one years before it occurred to them to question the judgment of the cadastral court. In fact, their alleged predecessor-in-interest, Filomeno Banogon, lived for nineteen more years after the 1926 decision and did not see fit to challenge it until his death in 1945. The herein petitioners themselves waited another twelve years, or until 195 7, to file their petition for review.

judgment has become final, the winning party be not, through a mere subterfuge, deprived of the fruits of the verdict. Courts must therefore guard against any scheme calculated to bring about that result. Constituted as they are to put an end to controversies, courts should frown upon any attempt to prolong them. Regarding the argument that the private respondents took fourteen years to move for the dismissal of the petition for review, it suffices to point out that an opposition thereto had been made as early as March 26, 1957, or nine days after the filing of the petition. Moreover, it was for the petitioners to move for the hearing of the petition instead of waiting for the private respondents to ask for its dismissal. After all, they were the parties asking for relief, and it was the private respondents who were in possession of the land in dispute. As officers of the court, lawyers have a responsibility to assist in the proper administration of justice. They do not discharge this duty by filing pointless petitions that only add to the workload of the judiciary, especially this Court, which is burdened enough as it is. A judicious study of the facts and the law should advise them when a case, such as this, should not be permitted to be

Issue: W/N the petition should be granted

filed to merely clutter the already congested judicial dockets. They do not advance the cause of law or their clients by commencing litigations that for sheer lack of merit do not deserve the attention of the courts. Petition dismissed, with costs against the petitioners.

Held: No. A reading (of the petitioners defense, Rivera v. Moran) will show that it is against their contentions and that under this doctrine they should not have delayed in asserting their claim of fraud. Their delay was not only for thirty one days but for thirty one years. Laches bars their petition now. Their position is clearly contrary to law and logic and to even ordinary common sense. Litigation must end and terminate sometime and somewhere, and it is assent essential to an effective and efficient administration of justice that, once a EMETERIO MAGAT, petitioner, vs. HON. PEDRO T. SANTIAGO, Judge, Court of First Instance of Bataan, Br. II, JOVITA T. GANZON and PROVINCIAL SHERIFF OF BATAAN, respondents; EMETERIO MAGAT, petitioner, vs. COURT OF APPEALS and JOVITA T. GANZON, respondents.

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ANTONIO, J.: For delaying for quite a long time the termination of an unlawful detainer case (Civil Case No. 3438, CFI-Bataan) by filing multiple petitions before this Court, involving the same subject matters and cause of action, which were attempts "by the same party and his counsel to delay the enforcement of a judgment that has long become final and executory", this Court, on October 28, 1977, suspended Atty. Ceferino R. Magat from the practice of law effective immediately and until further orders from this Court. There is no question that a lawyer not only owes to his client the duty of fidelity, but, more important, he also owes the duty of good faith and honorable dealing to the judicial tribunal before whom he practices his profession. 1 Inherent in that duty is the obligation to assist the Court in the speedy disposition of cases: Excessive delay causes hardships, may force parties into unfair settlements, and, more significant, it may nurture a sense of injustice and breed cynicism about the administration of justice itself. Thus, the Constitution provides the right of all persons to a speedy disposition of their cases before all judicial, quasi-judicial and administrative bodies. 2 We are now, however, confronted with the plea of Atty. Ceferino R. Magat and the members of his family for judicial clemency, expressing their profound regret for his past misconduct and his avowal to mend his ways, and invoking this tribunal's compassion. in view of the said family's financial and economic difficulties due to his inability to earn his livelihood as a lawyer. These requests for compassion and clemency from Atty. Magat and his children were reiterated several times for a period of more than two years since his suspension. The suspension of a lawyer is not intended primarily as a punishment, but as a measure of protection of the public and the profession. We are satisfied that Atty. Magat appreciates the significance of his dereliction and he has assured Us that he now possesses the requisite probity and integrity necessary to guarantee that he is worthy to be restored to the practice of law. WHEREFORE, in view of the foregoing, the Court resolved to terminate the suspension of Atty. Ceferino R. Magat from the practice of law. with the warning that any subsequent acts of misconduct will be more severely dealt with. SO ORDERED. RODOLFO MILLARE, petitioner, vs. ATTY. EUSTAQUIO Z. MONTERO, respondent.

QUIASON, J.: This is a complaint for disbarment. Pursuant to paragraph 2, Section 1, Rule 139-B of the Revised Rules of Court, this Court resolved to refer it to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. On April 15, 1994, the IBP Board of Governors rendered a decision, finding respondent guilty of malpractice and recommending that he be suspended from the practice of law. I Pacifica Millare, the mother of the complainant, obtained a favorable judgment from the Municipal Trial Court, Bangued, Abra (MTC) which ordered Elsa Dy Co to vacate the premises subject of the ejectment case (Civil Case No. 844). Co, through respondent as counsel, appealed the decision to the Regional Trial Court, Branch 11, Bangued, Abra (RTC). She neither filed a supersedeas bond nor paid the rentals adjudged by the MTC. The RTC affirmed in toto the decision of the MTC. The Court of Appeals (CA) dismissed Co's appeal from the decision of the RTC for failure to comply with Section 22 of B.P. Blg. 129 and Section 22(b) of the Interim Rules and Guidelines (CA-G.R. CV No. 11404). According to the CA, Co should have filed a petition for review and not an ordinary appeal (Rollo, Vol. I, p. 22). The judgment of the MTC became final and executory on November 19, 1986. On January 2, 1987, a Manifestation and Motion was filed by respondent as counsel for Co in CA-G.R. CV No. 11404, arguing that the decisions of the MTC and the RTC were null and void for being contrary to law, justice and equity for allowing the lessor to increase by 300% the rentals for an old house. Respondent, admitting his mistake in filing an ordinary appeal instead of a petition for review, prayed that he be allowed to file an action for annulment. On February 23, 1987, the CA gave due course to respondent's Manifestation and Motion and let the records remain with it. However, on November 10, 1987, the said court ordered the records in CA-G.R. CV No. 11404 to be remanded to the court a quo. On March 9, 1987, respondent filed with the CA a Petition for Annulment of Decisions and/or Reformation or Novation of Decisions of the MTC and the RTC (CA-G.R. SP No. 11690), insisting that the decisions were not in accordance

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with existing laws and policies. On December 17, 1987, the CA dismissed the petition for annulment or novation explaining that . . . , aside from the reliefs provided in these two sections (Secs. 1 & 2, Rule 38), there is no other means whereby the defeated party may procure final and executory judgment to be set aside with a view to the renewal of the litigation, unless (a) the judgment is void for want of jurisdiction or lack of due process of law, or (b) it has been obtained by fraud, . . . . There is no allegation in the present complaint to the effect that the judgments in the former cases were secured through fraud (Rollo, Vol. I, p. 35; Emphasis supplied). On January 15, 1988, respondent filed an Urgent Motion for Reconsideration and Motion to Set Motion for Reconsideration for Oral Arguments of the CA decision. The CA denied the motion. Again, respondent requested the CA to set his Motion For Oral Arguments on April 14, 1988. In a resolution dated February 12, 1988, the CA denied the Motion for Oral Argument and in a resolution dated October 18, 1988, denied the motion for reconsideration of the February 12 Resolution. Respondent then filed a Petition for Review on Certiorari with this Court (G.R. No. 86084) questioning the decisions of the MTC and the RTC in favor of petitioner's mother. In a Resolution dated January 4, 1989, we denied the petition for having been filed and paid late on December 12, 1988 and November 12, 1988, respectively. A motion for reconsideration from such resolution was likewise denied with finality. Respondent filed a Motion for the Issuance of a Prohibitory or Restraining Order (dated July 6, 1988) in CA-G.R. SP No. 11690. On April 12, 1988, the mother of complainant filed a Motion for Execution of the judgment in Civil Case No. 844. Respondent filed an Opposition to the Motion for Execution on the ground that the case was still pending review by the CA in CA-G.R. SP No. 11690 and therefore the motion for execution was premature. On August 23, 1988, the MTC ordered the issuance of a writ of execution. Respondent filed a motion for reconsideration, which was denied. The RTC affirmed the order for the issuance of the writ of execution. Thus, a writ of execution was issued on October 18, 1988. On October 26, 1988, respondent filed a special civil action (SP CV No. 624) with the RTC, Branch 1, Bangued, Abra for certiorari, prohibition, mandamus with preliminary injunction against the MTC, Provincial Sheriff and complainant's mother, seeking to annul the writ of execution issued

in MTC Civil Case No. 844 and RTC Civil Case No. 344. Respondent alleged that the order granting the writ of execution was issued with grave abuse of discretion amounting to lack of jurisdiction since a petition to annul the decisions (CA-G.R. SP No. 11690) was still pending with the CA. On October 28, 1988, the provincial sheriff, Romulo V. Paredes, deferred the implementation of the writ of execution until the petition filed in SP CV No. 624 for certiorari was resolved. The CA denied in SP CV No. 624 respondent's Urgent Motion to Set Aside and Declare Null and Void the Writ of Execution. From the decision of the RTC, Branch 1, Abra in SP CV No. 624 denying the Petition for Certiorari, Prohibition,Mandamus with Preliminary Issuance of Prohibitory Order, respondent again filed an Appeal and/or Review byCertiorari, Etc. with the CA (CA-G.R. SP No. 17040). II We have no reason to reverse the findings of the IBP Board of Governors. Under Canon 19 of the Code of Professional Responsibility, a lawyer is required to represent his client "within the bounds of the law." The Code enjoins a lawyer to employ only fair and honest means to attain the lawful objectives of his client (Rule 19.01) and warns him not to allow his client to dictate the procedure in handling the case (Rule 19.03). In short, a lawyer is not a gun for hire. Advocacy, within the bounds of the law, permits the attorney to use any arguable construction of the law or rules which is favorable to his client. But the lawyer is not allowed to knowingly advance a claim or defense that is unwarranted under existing law. He cannot prosecute patently frivolous and meritless appeals or institute clearly groundless actions (Annotated Code of Professional Responsibility 310 [1979]). Professional rules impose limits on a lawyer's zeal and hedge it with necessary restrictions and qualifications (Wolfram, Modern Legal Ethics 579-582 [1986]). Under Canon 12 of the Code of Professional Responsibility, a lawyer is required to exert every effort and consider it his duty to assist in the speedy and efficient administration of justice. Implementing said Canon are the following rules: Rule 12.02. A lawyer shall not file multiple actions arising from the same cause. xxx xxx xxx Rule 12.04. A lawyer shall not unduly delay a case, impede the execution of a judgment or misuse court processes.

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It is unethical for a lawyer to abuse or wrongfully use the judicial process, like the filing of dilatory motions, repetitious litigation and frivolous appeals for the sole purpose of frustrating and delaying the execution of a judgment (Edelstein, The Ethics of Dilatory Motions Practice: Time for Change, 44 Fordham L. Rev. 1069 [1976]; Overmeyer v. Fidelista and Deposit Co., 554 F. 2d 539, 543 [2d Cir. 1971]). The rights of respondent's client in Civil Case No. 844 of the MTC were fully protected and her defenses were properly ventilated when he filed the appeal from the MTC to the RTC. But respondent thereafter resorted to devious and underhanded means to delay the execution of the judgment rendered by the MTC adverse to his client. The said decision became executory even pending its appeal with the RTC because of the failure of Co to file a supersedeas bond and to pay the monthly rentals as they fell due. Furthermore, his petition for annulment of the decisions of the MTC and RTC which he filed with the CA (CAG.R. No. 11690) was defective and dilatory. According to the CA, there was no allegation therein that the courts had no jurisdiction, that his client was denied due process, or "that the judgments in the former cases were secured through fraud." As ruled in Regidor v. Court of Appeals, 219 SCRA 530 (1993): A judgment can be annulled only on two grounds: (a) that the judgment is void for want of jurisdiction or for lack of due process of law, or (b) that it has been obtained by fraud. . . . (at p. 534). Moreover, when the CA ordered that the records of the case be remanded, respondent knew very well that the decision of the MTC was already ripe for execution. This Court, in People of Paombong, Bulacan v. Court of Appeals, 218 SCRA 423 (1993), ruled: . . . [w]hen the judgment of a superior court is remanded to the trial court for execution, the function of the trial court is ministerial only; the trial court is merely obliged with becoming modesty to enforce that judgment and has no jurisdiction either to modify in any way or to reverse the same. . . . (at p. 430). (See also Valenzona v. Court of Appeals, 226 SCRA 306 [1993] and Garbo v. Court of Appeals, 226 SCRA 250 [1993]). Respondent filed a total of six appeals, complaints or petitions to frustrate the execution of the MTC judgment in Civil Case No. 844, to wit:

(1) Civil Case No. 344 Appeal from the decision rendered in Civil Case No. 844 of the Municipal Trial Court, Bangued, Abra, with the Regional Trial Court, Abra; (2) CA-G.R. CV No. 11404 Appeal from the decision of the Regional Trial Court, Abra; (3) CA-G.R. SP No. 11690 An Action For the Annulment of Decisions And/Or Reformation or Novation of Decisions filed with the Court of Appeals; (4) G.R. No. 86084 Petition For Review On Certiorari filed with the Supreme Court; (5) CA-G.R. SP No. 17040 Appeal And/Or Review By Certiorari, Etc. filed also with the Court of Appeals; and, (6) SP Civil Action No. 624 Petition For Certiorari, Prohibition, Mandamus with Preliminary Issuance of Prohibitory Order filed with the Regional Trial Court, Branch 1, Bangued, Abra. Judging from the number of actions filed by respondent to forestall the execution of the same judgment, respondent is also guilty of forum shopping. In Villanueva v. Adre 172 SCRA 876 (1989), the Court explained that forum shopping exists when, by reason of an adverse decision in one forum, defendant ventures to another for a more favorable resolution of his case. In the case of Gabriel v. Court of Appeals, 72 SCRA 272 (1976), this Court explained that: Such filing of multiple petitions constitutes abuse of the Court's processes and improper conduct that tends to impede, obstruct and degrade the administration of justice and will be punished as contempt of court. Needless to add, the lawyer who filed such multiple or repetitious petitions (which obviously delays the execution of a final and executory judgment) subjects himself to disciplinary action for incompetence (for not knowing any better) or for willful violation of his duties as an attorney to act with all good fidelity to the courts and to maintain only such actions as appear to him to be just and are consistent with truth and honor (at p. 275). By having wilfully and knowingly abused his rights of recourse in his efforts to get a favorable judgment, which efforts were all rebuffed, respondent violated the duty of a member of the Bar to institute actions only which are just and put

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up such defenses as he perceives to be truly contestable under the laws (Garcia v. Francisco, 220 SCRA 512 [1993]). As correctly noted by the Committee on Bar Discipline "in filing a number of pleadings, actions and petitioner, respondent 'has made a mockery of the judicial processes' and disregarded canons of professional ethics in intentionally frustrating the rights of a litigant in whose favor a judgment in the case was rendered, thus, 'abused procedural rules to defeat ends of substantial justice'" (Report and Recommendation, IBP Committee on Bar Discipline, p. 2). WHEREFORE, respondent is SUSPENDED for one year. SO ORDERED. RODOLFO MILLARE, petitioner, vs. ATTY. EUSTAQUIO Z. MONTERO, respondent. Complainant obtained a favorable judgment from the MTC which ordered respondents client to vacate the premises subject of the ejectment case. respondent as counsel, appealed the decision. CA dismissed Co's appeal from the decision of the RTC for failure to comply with the proper procedures. Respondent thereafter resorted to devious and underhanded means to delay the execution of the judgment rendered by the MTC adverse to his client. Held: SUSPENDED for (1) year. Rule 12.02. A lawyer shall not file multiple actions arising from the same cause. Rule 12.04. A lawyer shall not unduly delay a case, impede the execution of a judgment or misuse court processes. Under Canon 19 of the Code of Professional Responsibility, a lawyer is required to represent his client "within the bounds of the law." The Code enjoins a lawyer to employ only fair and honest means to attain the lawful objectives of his client (Rule 19.01) and warns him not to allow his client to dictate the procedure in handling the case (Rule 19.03). In short, a lawyer is not a gun for hire. It is unethical for a lawyer to abuse or wrongfully use the judicial process, like the filing of dilatory motions, repetitious litigation and frivolous appeals for the sole purpose of frustrating and delaying the execution of a judgment. A judgment can be annulled only on two grounds: (a) that the judgment is void for want of jurisdiction or for lack of due process of law, or (b) that it has been obtained by fraud.

Judging from the number of actions filed by respondent to forestall the execution of the same judgment, respondent is also guilty of forum shopping. Forum shopping exists when, by reason of an adverse decision in one forum, defendant ventures to another for a more favorable resolution of his case.

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