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Gabina Punsalan-Luchavez,

A.M. OCA IPI No. 10-2335-MTJ


Judge Eliza B. Yu, Metropolitan Trial

Court Branch 47, Pasay City,
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A motion for reconsideration is to be filed within the fifteen-

day period from receipt of a copy of the decision or resolution shall
stay the execution of such decision or resolution unless, for good
reasons shown, the Court directs otherwise. I received a copy of
Your Honors' Resolution dated March 12, 2012
on June 14, 2012.

With due respect, Your Honors, because your resolution dated

March 12,2012 in this case will become part of the law of the land
after the lapse of the period to file a motion for reconsideration, and
the issues disposed herein like lack of demand letter and the lack
of counsel, though these are not raised by
complainant Gabina Punsalan-Luchavez, will become the
controlling principles to guide the bench and the bar as well as the
public, may I respectfully move for reconsideration in adopting and
approving in toto the evaluation of the Office of the Court
Administrator's Report dated January 25, 2012 by incorporating
the following manifestations as part of Your Honors'
Resolution in this administrative case:

(1) With due respect, I am not aware that complainant Mrs. Gabina
Luchavez filed a case against me on December 17, 2010. It is my
belief that a respondent in every administrative case must be given
due process. If not due process, at least a notice that an
administrative case whether meritorious or not was filed against a
judge as a form of forewarning of an impending
trouble as well as a way of protecting against troublesome litigants.

(2) With due respect, in this administrative case, the Office of the
Court Administrator evaluated the propriety of the contents of our
court's lawful order dated July 7, 2010. With due respect, this
function is judicial in nature that is not lodged to the said office.
There is a proper judicial relief to be availed by the complainant
Gabina Punsalan-Luchavez against me with respect to the
questioned lawful order. An administrative complaint is not a
proper remedy for the court to explain its lawful order. The Office of
the CourtAdministrator is not the proper forum to explain and
justify the court's lawful orders. Thus, in Romero vs. Luna, A.M.
No. RTJ-11-2303 (Formerly A.M. OCA IPI No. 10-3416-RTJ),
March 12, 2012, Your Honors in the Second Division adopted the
evaluation of the Office of the Court Administrator:

"The complaint has no merit. The complaint involves matters that

are judicial in nature. Complainant Romero assails the wisdom
underlying the questioned Order. Hence this Office
refrains from resolving the following interrelated issues, to wit: (a)
whether or not respondent Judge Calabocal has residual rate-
fixing powers; (b) whether or not the previously approved rates
[are] unalterable during its (five-year) period
of effectivity. These issues should be threshed out in the proper
judicial forum. Further, the appellate jurisdiction of this Office can
only be invoked in a grant/denial or suspension/revocation of the
accreditation. The issues raised here are not those enumerated.
As a matter of policy "an administrative complaint is not the
appropriate remedy for every act of a judge deemed aberrant or
irregular." The administrative case cannot be used as a remedy to
challenge the assailed order or decision rendered by the respondent
judge nor cannot be used as a substitute for other judicial
remedies. Errors committed by a judge in the
exercise of his adjudicative functions cannot be corrected through
administrative proceedings, but should instead be assailed through
judicial remedies. It is only after the available judicial remedies
have been exhausted and the appellate tribunals have spoken with
finality, that the door to an inquiry into his criminal, civil or
administrative liability may be said to have
opened or closed. All considered, the instant complaint against
respondent Executive Judge Manuel C. Luna, Jr., Regional Trial
Court, Calapan City, Oriental Mindoro, should similarly be
DISMISSED for being judicial in nature.

WHEREFORE, the Resolution dated 14 November 2011 holding

respondent Executive Judge Manuel C. Luna, Jr., Regional Trial
Court, Calapan City, Oriental Mindoro liable for violation of A.M.
No. 01-1-07-SC is hereby REVERSED and SET ASIDE. The instant
complaint against respondent is DISMISSED for being judicial in


(3) With due respect, our court agrees with the evaluation by the
Office of the Court Administrator about the lack of the need of
demand letter in Replevin case which appears to be contrary to the
questioned lawful order but no gross ignorance of the law can be
concluded from it. In City Service Corp. vs. Leo Mario Celdran, Civil
Case No. M-PSY-09-09586 for Sum of Money, my
Decision dated February 21, 2011 ruled in this wise that is
supportive with the evaluation of the Office of the Court
Administrator, to quote:

"As to the second issue, the plaintiff has a cause of action despite
the absence of a demand letter. There is an existing opinion among
lawyers regarding the necessity of giving a demand letter prior to
filing a civil case. To re-state this argument, to
the effect, "One common mistake committed by creditors in dealing
with their debtors is the failure to send a demand letter. For some,
it is sufficient that the loan has reached the maturity date, and
without sending any demand, they soon commence to file collection
suits. That is not correct. It must be bore in
mind that unless there is demand, the debtor is not yet technically
default. It is only when demand to pay is made and subsequently
refused that the debtor can be considered in default and where the
right to file an action to collect the debt accrue. The rule is that
since a cause of action requires, as essential elements, not
only a legal right of the creditor and a correlative duty of the debtor
but also "an act or omission of the debtor in violation of said legal
right," the cause of action does not accrue until the debtor refuses,
expressly or impliedly, to comply with his duty. Thus, the following
must be present before a collection suit can be validly initiated: (1)
right in favor of the creditor to receive
payment; (2) an obligation on the part of the debtor to pay; and (3)
an act or omission on the part of the debtor violative of the right of
the creditor or constituting a breach of the obligation of the debtor
or the creditor. It is only when the last element occurs that a cause
of action arises. "Lack of demand
letter is a ground to dismiss a case on the ground of lack of cause
of action or prematurity.

This Court is not persuaded with the foregoing argument.

Rule 16, Section 1 of the Revised Rules of Court did not

categorically state that lack of a demand letter in a sum of money
case is a ground for dismissal of an action. The Twin reasons for
the demand letter are, first, to encourage negotiation and
settlement and, second, to control the amount of damages

recoverable by the plaintiff.2 An analysis of the jurisprudence
reveals that giving a demand letter is not a pre-requisite for a
collection suit yet it is helpful to avert expensive litigation.

Article 1169 of the New Civil Code provides: "Those obliged to

deliver or to do something incur in delay from the time the obligee
judicially or extra-judicially demands from them the fulfillment of
their obligation."

In Hocorma Foundation Inc. us. Santos et at, G.R. No.

153004, November 5, 2004, it was held, " Delay as used in this
article is synonymous to default or mora which means delay in the
fulfilment of obligations. It is the non-fulfillment of the obligation
with respect to time. In order for the debtor to be in default,
it is necessary that the following requisites be present: (1) that the
obligation be demandable and already liquidated; (2) that the
debtor delays performance; and (3) that the creditor requires the
performance judicially or extra-judicially."

The giving of a demand letter is an extrajudicial demand while

the commencement of a suit is a judicial demand. In the case at
bar, the obligation on the part of the defendant became due and
demandable when this collection case against him was filed in
court. It became liquidated because the defendant as debtor knew
how much he owes to the plaintiff upon the receipt
of the complaint. For non-payment of the obligation, and instead
disputed it by filing his answer in court, and in not settling his
obligation during the preliminary conference until now, defendant
delayed the performance of his obligation. Thus, defendant is liable
for damages for the delay in the performance of its obligation
under Article 1170 of the New Civil Code.

Moreover, demand by the plaintiff is important, not only in

order to establish a cause of action, but also for the computation of
interest. The legal interest for sum of money is twelve percent (12%)
per annum to be computed from default, that is, from extrajudicial
or judicial demand under and subject
to the provisions of Article 1169 of the New Civil Code. Considering
that there is no demand letter in this case, it is incorrect to say
that there is no default yet, since the computation of the interest
rate can be determined already, which is by computing it from the
day of the filing of the complaint, showing
the existence of default on the part of the defendant.

The factual antecedents of the Palmares case3 are not

squarely applicable in this case. However, this Court agrees with
the Supreme Court's pronouncement that " the commencement of
the suit is a sufficient demand."

(4) With due respect, why it appeared in the questioned order as I
stated that complainant Gabina Punsalan-Luchavez must submit
proof that her signature in the demand letter was forged, meaning
a demand letter is required, it can be deduced that the same
questioned order does not show any sign of gross ignorance at all
on issue of demand letter, rather it was made out of the
court's judicial task of ferreting out the truth to aid both parties. It
is my humble submission that the primary duty of a judge during
trial is to know the truth not to apply the law. The questioned order
will prevent further delay of the case on the part of complainant
Gabina Punsalan-Luchavez who insisted that her signature was
forged thus there is a need to dismiss the case against
her. The questioned order means that the court is willing to hear
whatever, be it right or wrong, is the defense of complainant
Gabina Punsalan-Luchavez during trial that should proceed. The
plausibility or legality of her defense will
be determined in the Decision of the judge. In decision-making, the
primary duties of judge are to state the facts and apply the law.

(5) With due respect, our court disagrees with the evaluation by
the Office of the Court Administrator about the requirement of
representation of counsel of complainant Gabina Punsalan-
Luchavez. There is no law that prohibits complainant Gabina
Punsalan-Luchavez to represent herself in a civil case. The
representation of counsel in criminal case is stricter compared with
civil case because in the former case, what is stake is life or liberty.
In the Constitution and the Rules of Court, there is no right to
counsel in civil cases unlike in criminal cases. Right to counsel an
be waived especially in civil cases. The complainant in a civil case
is at risk of losing his or her case if there is no counsel that he or
she waived. Complainant Gabina Punsalan- Luchavez has herself
to blame if the trial proceeds and a decision is rendered
adverse to her without being represented by a counsel for reason
attributable to her. In small claims court, there are no counsels
required contrary to Sibal vs. People GR No. 161070, April 14,
2008 cited in the administrative matter for agenda report by
the Office of the Court Administrator. The case law is a criminal
case not applicable in the case of complainant Gabina
Punsalan-Luchavez. In practice, litigants are using lack of counsel
as an excuse to delay cases in Civil cases. Our court gives them
sufficient time and opportunity to bring their counsels and their
failure to do so for causes due to them would result to a waiver of
their right to counsel or failure on their part
to prosecute because an unreasonable delay of cases is violative of
one's Constitutional right to speedy trial. It is also prejudicial to
public interest to encourage delay through the excuse of lack of

counsel because government's meager resources will be consumed
and wasted especially on intentional delay of cases that is made to
thwart the swift dispensation of justice in our country.

To amplify my Manifestation to the effect that no law prohibits

a litigant to represent oneself in a civil case and that a right to
counsel can be waived are the following provisions in the Rules of
Court and jurisprudences for public information and guidance :

Rule 7, Section 3, Revised Rules of Court: Every pleading must be

signed by the party or counsel representing him, stating in either
case his address which should not be a post office box .

Rule 30, Section 9, Revised Rules of Court : Subject to the

provisions of section 2 of Rule 31, and unless the court for special
reasons otherwise directs, the trial shall be limited to the issues
stated in the pre-trial order and shall proceed as follows:

(a) The plaintiff shall adduce evidence in support of his

( b ) The defendant shall then adduce evidence in support of his
counterclaim, cross-claim and third-party complaint;
( c ) The third-party defendant. if any, shall adduce evidence of
his defense, counterclaim, cross-claim and fourth-party complaint;
( d ) The fourth-party, and so forth, if any, shall adduce evidence of
the material facts pleaded by them;
( e ) The parties against whom any counterclaim or cross-claim
has been pleaded, shall adduce evidence in support of their
defense, in the order to be prescribed by the court;
(f) T h e parties may then respectively adduce rebutting evidence
only, unless the court, for good reasons and in the furtherance of
justice, permits them to adduce evidence upon their original case;
( g ) (g) Upon admission of the evidence, the case shall be deemed
submitted for decision, unless the court directs the parties to
argue or to submit their respective memoranda or any further

Rule 30, Section 9, Revised Rules of Court: The judge of the court
where the case is pending shall personally receive the evidence to
be adduced but the parties.

Rule 71, Section 3, Revised Rules of Court: After a charge in writing

has been filed, and an opportunity given to the respondent to
comment thereon within such period as may be fixed by the court
and to be heard but himself or counsel.

Rule 115, Section 1 (c) Revised Rules of Court: Upon motion, the
accused may be allowed to defend himself in person when it
sufficiently appears to the court that he can properly protect his
rights without the assistance of counsel.

People vs. Serzo Jr.

G.R. No. 118435. June 20, 1997
Penned by Justice Artemio Panganiban

Right to Counsel De Parte Is Not Absolute

Accordingly, an accused may exercise his right to counsel by

electing to be represented either by a court-appointed lawyer or by
one of his own choice. While his right to be represented by counsel
is immutable, his option to secure the services of counsel de parte,
however, is not absolute. The court is obliged to balance the
privilege to retain a counsel of choice against the states's and the
offended party's equally important right to speedy and adequate
justice. Thus, the court may restrict the accused's option to retain
a counsel de parte if the accused insists on an attorney he cannot
afford, or the chosen counsel is not a member of the bar, or the
attorney declines to represent the accused for a
valid reason, e.g. conflict of interest and the like. Also, the right to
counsel de parte is, like other personal rights, waivable so long as (1)
the waiver is not contrary to law, public order, public policy,
morals or good customs; or prejudicial to a third person with a
right recognized by law and (2) the waiver is unequivocally,
knowingly and intelligently made. In Sayson vs. People, this
Court held that the duty of the court to appoint a counsel de oficio
is not mandatory where the accused has proceeded with the
arraignment and the trial with a counsel of his choice but, when
the time for the presentation of the evidence for the defense was
due, he appears by himself alone because of the inexcusable
absence of his counsel. In another case, this Court held that the
right to be heard and to reopen the case (and send it to trial anew)
could not be allowed if doing so would sanction a plainly dilatory
tactic and a reprehensible trifling with the orderly administration of
justice. In the present case, appellant claims that he was not given
sufficient time to engage a counsel de parte, thereby preventing
him from presenting evidence in his defense. In his Brief he adds,
but without giving particulars or proof, that allegedly his counsels
de oficio did not exert their "utmost efforts" in representing him,
thus: "x x x The lower court afforded the accused the assistance of
counsel de oficio as early as the arraignment stage but failed to
show that utmost efforts were exerted by said counsel to defend
the life and liberty of the accused. The duty of the court is not
ended with such appointment, however, as it should also see to it
that the counsel does his duty by the defendant. Counsel de oficio

should not merely make the motions of defending the accused but
exert his utmost efforts as if he were representing a paying client."
The Solicitor General, in his eleven-page Brief, rebuts this, arguing
that appellant's actions during the trial showed instead a
"lackadaisical stance on his own defense." Appellant had been
given ample time to secure the services of a counsel de parte, but
his subsequent appearances in court without such counsel and his
act of allowing this situation to continue until the presentation of
his evidence betrays his lack of intention to do so. It even appears
that he was merely delaying his own presentation of evidence on
purpose to the prejudice of the offended party, the trial court and
the orderly administration of justice. Furthermore, appellant did
not demonstrate in what way the services of his counsels de oficio
were unsatisfactory. He did not cite any instance substantiating his
claim that he was not effectively represented. In short, he was
afforded a chance to be heard by counsel of his own choice, but by
his own neglect or mischief, he effectively waived such right. It
taxes the mind to think that, almost two years since appellant first
invoked his right to be represented by counsel de parte, he still
could not find one who would suit his needs and desires. Neither
did he cooperate with his court-named lawyers. The facts of this
case do not constitute a deprivation of appellant's constitutional
right to counsel because he was adequately represented by three
court-appointed lawyers: Atty. Lina-ac, Atty. Antonano and Atty.
Garcia. Courts are not required to await indefinitely the pleasure
and convenience of the accused as they are also mandated to
promote the speedy and orderly
administration of justice. Nor should they countenance such an
obvious trifling with the rules. Indeed, public policy requires that
the trial continue as scheduled, considering that appellant was
adequately represented by counsels who were not shown to be
negligent, incompetent or otherwise unable to represent him.

Cruz vs. Judge Mijares and Mina

G.R. NO. 154464, September 11, 2008
Penned by Justice Antonio Eduardo Nachura

Considering, however, that this case involves the

interpretation of Section 34, Rule 138 and Rule 138-A of the Rules
of Court, the Court takes cognizance of herein petition.
nonetheless, the petitioner is cautioned not to continue his
practice of filing directly before this Court petitions under Rule 65
when the issue raised can be resolved with dispatch by the Court of
Appeals. We will not tolerate litigants who make a mockery of the
judicial hierarchy as it necessarily delays more important concerns
before us. In resolving the second issue, a comparative reading of
Rule 138, Section 34 and Rule 138-A is necessary. Rule 138-A, or
the Law Student Practice Rule, provides:

RULE 138-A

Section 1. Conditions for Student Practice. - A law student who has

successfully completed his 3rd year of the regular four-year
prescribed law curriculum and is enrolled in a recognized law
school's clinical legal education program approved by the Supreme
Court, may appear without compensation in any
civil, criminal or administrative case before any trial court, tribunal,
board or officer, to represent indigent clients accepted by the legal
clinic of the law school.

Sec. 2. Appearance. - The appearance of the law student authorized

by this rule, shall be under the direct supervision and control of a member
of the Integrated Bar of the Philippines duly accredited by the law school. Any
and all pleadings, motions, briefs, memoranda or other papers to be
filed, must be signed by the supervising attorney for and in behalf
of the legal clinic. The respondent court held that the petitioner
could not appear for himself and on his behalf because of his
failure to comply with Rule 138-A. In denying
petitioner's appearance, the court a quo tersely finds refuge in the
fact that, on December 18, 1986, this Court issued Circular No. 19,
which eventually became Rule 138-A, and the failure of Cruz to
prove on record that he is enrolled in a recognized school's clinical
legal education program and is under supervision of an attorney
duly accredited by the law school. However, the petitioner insisted
that the basis of his appearance was Section
34 of Rule 138, which provides:

Sec. 34. By whom litigation is conducted. - In the court of a justice

of the peace, a party may conduct his litigation in person, with the
aid of an agent or friend appointed by him for that purpose, or with
the aid of an attorney. In any other
court, a party may conduct his litigation personally or by aid of an
attorney, and his appearance must be either personal or by a only
authorized member of the bar. And is a rule distinct from Rule

From the clear language of this provision of the Rules, it will

have to be conceded that the contention of the petitioner has merit.
It recognizes the right of an individual to represent himself in any
case to which he is a party. The Rules state that a party may
conduct his litigation personally or with the aid of an attorney, and
that his appearance must either be personal or by a duly
authorized member of the Bar. The individual litigant may
personally do everything in the course of proceedings from
commencement to the termination of the litigation. Considering

that a party personally conducting his litigation is restricted to the
same rules of evidence and procedure as those qualified to
practice law, petitioner, not being a lawyer himself, runs the risk of
calling into the snares and hazards of his own ignorance.
Therefore, Cruz as plaintiff, at his own instance, can personally
conduct the litigation of Civil Case No. 01-
0410. He would then be acting not as a counselor lawyer, but as a
party exercising his right to represent himself.
The trial court must have been misled by the fact that the
petitioner is a law student and must, therefore, be subject to the
conditions of the Law Student Practice Rule. It erred in applying
Rule 138-A, when the basis of the petitioner's claim is Section 34 of
Rule 138. The former rule provides for
conditions when a law student may appear in courts, while the
latter rule allows the appearance of a non-lawyer as a party
representing himself.

The conclusion of the trial court that Rule 138-A superseded

Rule 138 by virtue of Circular No. 19 is misplaced. The Court never
intended to repeal Rule 138 when it released the guidelines for
limited law student practice. In fact, it
was intended as an addendum to the instances when a non-lawyer
may appear in courts and was incorporated to the Rules of Court
through Rule 138-A.

It may be relevant to recall that, in respect to the constitutional

right of an accused to be heard by himself and counsel, this Court
has held that during the trial, the right to counsel cannot be
waived. The rationale for this ruling was articulated in People v.
Holgado, where we declared that "even the most
intelligent or educated man may have no skill in the science of law,
particularly in the rules of procedure, and without counsel, he may
be convicted not because he is guilty but because he does not know
how to establish his innocence." The case at bar involves a civil
case, with the petitioner as plaintiff therein. The solicitous
concern that the Constitution accords the accused
in a criminal prosecution obviously does not obtain in a civil case.
Thus, a party litigant in a civil case, who insists that he can,
without a lawyer's assistance, effectively undertake the successful
pursuit of his claim, may be given the chance to do so. In this case,
petitioner alleges that he is a law
student and impliedly asserts that he has the competence to
litigate the case himself. Evidently, he is aware of the perils
incident to this decision. In addition, it was subsequently clarified
in Bar Matter 730, that by virtue of Section 34, Rule 138, a law
student may appear as an agent or a friend of a party litigant,
without need of the supervision of a lawyer, before inferior courts.
Here, we have a law student who, as party litigant, wishes

to represent himself in court. We should grant his wish.


PREMISES CONSIDERED, it is respectfully prayed unto the

Honorable First Division of the Supreme Court to ADOPT and
APPROVE the foregoing manifestations as part of the Resolution
dated March 12, 2012.

Manila City, June 27, 2012.

Judge Eliza B. Yu