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A.C. No. 4103 September 7, 1995 (248 SCRA 68, 1995) VERONICA S. SANTIAGO, BENJAMIN Q. HONTIVEROS, MR. SOCORRO F. MANAS, and TRINIDAD NORDISTA, complainants, vs. ATTY. AMADO R. FOJAS, respondent. DAVIDE JR., J.: In their letter of 8 September 1993, the complainants, former clients of the respondent, pray that the latter be disbarred for "malpractice, neglect and other offenses which may be discovered during the actual investigation of this complaint." They attached thereto an Affidavit of Merit wherein they specifically allege: 1. That we are Defendants-Appellates [sic] in the Court of Appeals Case No. CA-G.N. CV No. 38153 of which to our surprise lost unnecessarily the aforesaid Petition [sic]. A close perusal of the case reveals the serious misconduct of our attorney on record, Atty. Amado Fojas tantamount to malpractice and negligence in the performance of his duty obligation to us, to defend us in the aforesaid case. That the said attorney without informing us the reason why and riding high on the trust and confidence we repose on him either abandoned, failed to act accordingly, or seriously neglected to answer the civil complaint against us in the sala of Judge Teresita Capulong Case No. 3526-V-91 Val. Metro Manila so that we were deduced [sic] in default. 2. That under false pretenses Atty. Fojas assured us that everything was in order. That he had already answered the complaint so that in spite of the incessant demand for him to give us a copy he continued to deny same to us. Only to disclose later that he never answered it after all because according to him he was a very busy man. Please refer to Court of Appeals decision dated August 17, 1993. 3. That because of Atty. Amado Foja's neglect and malpractice of law we lost the Judge Capulong case and our appeal to the Court of Appeals. So that it is only proper that Atty. Fojas be disciplined and disbarred in the practice of his profession. In his Comment, the respondent admits his "mistake" in failing to file the complainants' answer in Civil Case No. 3526-V-91, but he alleges that it was cured by his filing of a motion for reconsideration, which was unfortunately denied by the court. He asserts that Civil Case No. 3526-V-91 was a "losing cause" for the complainants because it was based on the expulsion of the plaintiff therein from the Far Eastern University Faculty Association (FEUFA) which was declared unlawful in the final decision in NCR-OD-M-90-10-050. Thus, "[t]he unfavorable judgment in the Regional Trial Court is not imputable to [his] mistake but rather imputable to the merits of the case, i.e., the decision in the Expulsion case wherein defendants (complainants herein) illegally removed from the union (FEUFA) membership Mr. Paulino Salvador. . . ." He further claims that the complainants filed this case to harass him because he refused to share his attorney's fees in the main labor case he had handled for them. The respondent then prays for the dismissal of this complaint for utter lack of merit, since his failure to file the answer was cured and, even granting for the sake of argument that such failure amounted to negligence, it cannot warrant his disbarment or suspension from the practice of the law profession. The complainants filed a Reply to the respondent's

Comment. Issues having been joined, we required the parties to inform us whether they were willing to submit this case for decision on the basis of the pleadings they have filed. In their separate compliance, both manifested in the affirmative. The facts in this case are not disputed. Complainants Veronica Santiago, Benjamin Hontiveros, Ma. Socorro Manas, and Trinidad Nordista were the President, Vice-President, Treasurer, and Auditor, respectively, of the FEUFA. They allegedly expelled from the union Paulino Salvador. The latter then commenced with the Department of Labor and Employment (DOLE) a complaint (NCR-OD-M-9010-050) to declare illegal his expulsion from the union. In his resolution of 22 November 1990, Med-Arbiter Tomas Falconitin declared illegal Salvador's expulsion and directed the union and all its officers to reinstate Salvador's name in the roll of union members with all the rights and privileges appurtenant thereto. This resolution was affirmed in toto by the Secretary of Labor and Employment. Subsequently, Paulino Salvador filed with the Regional Trial Court (RTC) of Valenzuela, Metro Manila, Branch 172, a complaint against the complainants herein for actual, moral, and exemplary damages and attorney's fees, under Articles 19, 20, and 21 of the Civil Code. The case was docketed as Civil Case No. 3526-V-91. As the complainants' counsel, the respondent filed a motion to dismiss the said case on grounds of (1) res judicata by virtue of the final decision of the Med-Arbiter in NCR-OD-M90-10-050 and (2) lack of jurisdiction, since what was involved was an intra-union issue cognizable by the DOLE. Later, he filed a supplemental motion to dismiss. The trial court, per Judge Teresita Dizon-Capulong, granted the motion and ordered the dismissal of the case. Upon Salvador's motion for reconsideration, however, it reconsidered the order of dismissal, reinstated the case, and required the complainants herein to file their answer within a nonextendible period of fifteen days from notice. Instead of filing an answer, the respondent filed a motion for reconsideration and dismissal of the case. This motion having been denied, the respondent filed with this Court a petition for certiorari, which was later referred to the Court of Appeals and docketed therein as CA-G.R. SP No. 25834. Although that petition and his subsequent motion for reconsideration were both denied, the respondent still did not file the complainants' answer in Civil Case No. 3526-V-91. Hence, upon plaintiff Salvador's motion, the complainants were declared in default, and Salvador was authorized to present his evidence ex-parte. The respondent then filed a motion to set aside the order of default and to stop the ex-parte reception of evidence before the Clerk of Court, but to no avail. Thereafter, the trial court rendered a decision ordering the complainants herein to pay, jointly and severally, plaintiff Salvador the amounts of P200,000.00 as moral damages; P50,000.00 as exemplary damages or corrective damages; and P65,000.00 as attorney's fees; plus cost of suit. The complainants, still assisted by the respondent, elevated the case to the Court of Appeals, which, however, affirmed in toto the decision of the trial court.

The respondent asserts that he was about to appeal the said decision to this Court, but his services as counsel for the complainants and for the union were illegally and unilaterally terminated by complainant Veronica Santiago. The core issue that presents itself is whether the respondent committed culpable negligence, as would warrant disciplinary action, in failing to file for the complainants an answer in Civil Case No. 3526-V-91 for which reason the latter were declared in default and judgment was rendered against them on the basis of the plaintiff's evidence, which was received ex-parte. It is axiomatic that no lawyer is obliged to act either as adviser or advocate for every person who may wish to become his client. He has the right to decline employment, 1 subject, however, to Canon 14 of the Code of Professional Responsibility. Once he agrees to take up the cause of a client, the lawyer owes fidelity to such cause and must always be mindful of the trust and confidence reposed in him. 2 He must serve the client with competence and diligence, 3 and champion the latter's cause with wholehearted fidelity, care, and devotion. 4 Elsewise stated, he owes entire devotion to the interest of the client, warm zeal in the maintenance and defense of his client's rights, and the exertion of his utmost learning and ability to the end that nothing be taken or withheld from his client, save by the rules of law, legally applied. 5 This simply means that his client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land and he may expect his lawyer to assert every such remedy or defense. 6 If much is demanded from an attorney, it is because the entrusted privilege to practice law carries with it the correlative duties not only to the client but also to the court, to the bar, and to the public. A lawyer who performs his duty with diligence and candor not only protects the interest of his client; he also serves the ends of justice, does honor to the bar, and helps maintain the respect of the community to the legal profession. 7 The respondent admits that it was his duty to file an answer in Civil Case No. 3526-V-91. He justifies his failure to do so in this wise: [I]n his overzealousness to question the Denial Order of the trial court, 8 [he] instead, thru honest mistake and excusable neglect, filed a PETITION FOR CERTIORARI with the Honorable Court, docketed as G.R. No. 100983. . . . And, when the Court of Appeals, to which G.R. No. 100983 was referred, dismissed the petition, he again "inadvertently" failed to file an answer "[d]ue to honest mistake and because of his overzealousness as stated earlier. . . . " In their Reply, the complainants allege that his failure to file an answer was not an honest mistake but was "deliberate, malicious and calculated to place them on the legal disadvantage, to their damage and prejudice" for, as admitted by him in his motion to set aside the order of default, his failure to do so was "due to volume and pressure of legal work." 9 In short, the complainants want to impress upon this Court that the respondent has given inconsistent reasons to justify his failure to file an answer. We agree with the complainants. In his motion for reconsideration of the default order, the respondent explained his non-filing of the required answer by impliedly invoking forgetfulness occasioned by a large volume and pressure of legal work, while in his Comment in this case he attributes it to honest mistake and excusable neglect due to

his overzealousness to question the denial order of the trial court. Certainly, "overzealousness" on the one hand and "volume and pressure of legal work" on the other are two distinct and separate causes or grounds. The first presupposes the respondent's full and continuing awareness of his duty to file an answer which, nevertheless, he subordinated to his conviction that the trial court had committed a reversible error or grave abuse of discretion in issuing an order reconsidering its previous order of dismissal of Salvador's complaint and in denying the motion to reconsider the said order. The second ground is purely based on forgetfulness because of his other commitments. Whether it be the first or the second ground, the fact remains that the respondent did not comply with his duty to file an answer in Civil Case No. 3526-V-91. His lack of diligence was compounded by his erroneous belief that the trial court committed such error or grave abuse of discretion and by his continued refusal to file an answer even after he received the Court of Appeals' decision in the certiorari case. There is no showing whatsoever that he further assailed the said decision before this Court in a petition for review under Rule 45 of the Rules of Court to prove his claim of overzealousness to challenge the trial court's order. Neither was it shown that he alleged in his motion to lift the order of default that the complainants had a meritorious defense. 10 And, in his appeal from the judgment by default, he did not even raise as one of the errors of the trial court either the impropriety of the order of default or the court's grave abuse of discretion in denying his motion to lift that order. Pressure and large volume of legal work provide no excuse for the respondent's inability to exercise due diligence in the performance of his duty to file an answer. Every case a lawyer accepts deserves his full attention, diligence, skill, and competence, regardless of its importance and whether he accepts it for a fee or for free. All told, the respondent committed a breach of Canon 18 of the Code of Professional Responsibility which requires him to serve his clients, the complainants herein, with diligence and, more specifically, Rule 18.03 thereof which provides: "A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable." The respondent's negligence is not excused by his claim that Civil Case No. 3526-V-91 was in fact a "losing cause" for the complainants since the claims therein for damages were based on the final decision of the Med-Arbiter declaring the complainants' act of expelling Salvador from the union to be illegal. This claim is a mere afterthought which hardly persuades us. If indeed the respondent was so convinced of the futility of any defense therein, he should have seasonably informed the complainants thereof. Rule 15.05, Canon 15 of the Code of Professional Responsibility expressly provides: A lawyer, when advising his client, shall give a candid and honest opinion on the merits and probable results of the client's case, neither overstating nor understanding the prospects of the case. Then too, if he were unconvinced of any defense, we are unable to understand why he took all the trouble of filing a motion to dismiss on the grounds of res judicata and lack of jurisdiction and of questioning the adverse ruling thereon initially with this Court and then with the Court of Appeals, unless, of course, he meant all of these to simply delay the disposition of the civil case. Finally, the complainants were

not entirely without any valid or justifiable defense. They could prove that the plaintiff was not entitled to all the damages sought by him or that if he were so, they could ask for a reduction of the amounts thereof. We do not therefore hesitate to rule that the respondent is not free from any blame for the sad fate of the complainants. He is liable for inexcusable negligence. WHEREFORE, ATTY. AMADO R. FOJAS is hereby REPRIMANDED and ADMONISHED to be, henceforth, more careful in the performance of his duty to his clients. SO ORDERED.

2 A.C. No. 3283 July 13, 1995 (246 SCRA 1, 1995) RODOLFO MILLARE, petitioner, vs. ATTY. EUSTAQUIO Z. MONTERO, respondent.

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 by Certiorari, 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,

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 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,

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. 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 (CA-G.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 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. Padilla, Davide, Jr., Bellosillo and Kapunan, JJ., concur.

3 In re: Filart, 40 Phil 205, 1919 1919 September 27,

not appear in the record. Filart also alleges he made an oral motion to extend the period fixed by law for the filing of the bill of exceptions, but that motion appears to have been overlooked by the judge; 2. The parties are agreed that the bills of exceptions are voluminous. Respondent further pleads pressure of work in his law office; 3. Respondent says that he believed execution would not be valid until after certiorari proceedings were decided; 4. The exact nature of the assurances do not clearly appear in the record possibly they are no more than what an attorney fairly confident of success would make to a client. The Acting Attorney-General believes that the facts are not sufficient to support the complaint, and recommends dismissal of the case. We agree to the extent that such gross misconduct or negligence has not been shown as warrants disbarment or suspension pursuant to sections 21 and 22 of the Code of Civil Procedure. "That part of the profession," said Lord Mansfield in Pitt vs. Yalden, ([1767], 4 Burr., 2060), "which is carried on by attorneys is liberal and reputable, as well as useful to the public, when they conduct themselves with honor and integrity; and they ought to be protected when they act to the best of their skill and knowledge. But every man is liable to error; and I should be very sorry that it should be taken for granted that an attorney is answerable for every error or mistake. . . . A counsel may mistake as well as an attorney. . . . Yet no one will say that a counsel who has been mistaken shall be charged. . . . Not only counsel but judges may differ, or doubt, or take time to consider. Therefore, an attorney ought not to be liable in case of reasonable doubt." "No attorney," said Chief Justice Abbott, "is bound to know all the law; God forbid that it should be imagined that an attorney or a counsel, or even a judge, is bound to know all the law." (Montorious vs. Jeffreys, 2 Car. & P., 113.) The court, having in mind the many appeals which have been dismissed because of the lack of diligence of counsel, cannot let the occurrence pass without expressing a strong disapproval of such criminal carelessness. While we would not wish to assume a harsh and uncompromising attitude towards attorneys-at-law, we would wish for them to know that by indulging in such unprofessional tactics they become unworthy of the trust which the law reposes in them. The lack of due care is a breach of the attorney's undertaking with his client, and is indicative of a disregard of the attorney's duties to the court. We bring to the notice of clients whose rights have been prejudiced by the failure or by the delay of an attorney in preparing or filing pleadings necessary in the proper conduct of a cause, and in taking such steps as may be required in the progress of the case, that the client who has suffered damages as the result of his attorney's negligence or misconduct may recover therefor. In Drais vs. Hoggan ([1875], 50 Cal., 121), although many other cases might be cited, it was held that "if a judgment is obtained against a party upon a complaint which is radically defective, and he desires to appeal, and procures bondsmen, but his attorney neglects to do so until the time for appeal expires, the attorney is guilty of gross negligence, and is liable for the loss sustained by the client." Without, therefore, desiring especially to overemphasize the dereliction of Attorney Anacleto Filart for, sad to relate, he is only one of a class, it does become our solemn duty to reprimand him for carelessness and misconduct in attending to the cause of poor clients. Let a copy of this order be furnished to the respondent for his information with a warning

In re the complaint against Attorney ANACLETO FILART. Acting Attorney-General Feria for the Government. The respondent in his own behalf. MALCOLM, J.: These proceedings were instituted at the instance of thirtyseven residents of Asingan, Pangasinan, who filed a complaint against attorney Anacleto Filart for malpractice, alleging in substance: 1. That while Filart was deputy fiscal of Pangasinan he received of them the sum of P111 as fees for drafting a memorandum in connection with Registration Case No. 3, Record No. 8540; 2. That Filart was guilty of fraud and negligence in prosecuting the appeal to the Supreme Court, he having practically abandoned the case. In connection with point No. 1, even admitting that Filart while deputy fiscal received such a sum of complainants, which respondent denies, Filart seems to have had a legal right to receive compensation as an attorney, the office of deputy provincial fiscal not being specifically included in section 36 of the Code of Civil Procedure as amended by Act No. 1702, as an official who shall not engage in private practice. It is also to be noted that Filart did not take up the case of his own volition but was ordered by the court to defend the rights of petitioners because the attorney they formerly retained was almost always in a state of intoxication. In connection with point No. 2, the following facts are important: 1. That having resigned as deputy fiscal, and having engaged in the practice of law, complainants asked Filart to prosecute the appeal of their case; 2. That Filart received from complainants sums of money, P780 according to complainants, and P160 according to respondent; 3. That the complainants were driven from their lands, and their houses were destroyed, by order of the court. The facts which support the allegation of fraud and negligence on the part of respondent are: 1. The lapse of fifty-one days between the receipt of notice of denial of motion for a new trial (March 7, 1917) until the filing of the bill of exceptions (April 27, 1917) when the statutory period is only thirty days (Act No. 2347), sec. 26); 2. Failure to perfect a satisfactory bill of exceptions after repeated amendments and re-amendments; 3. Failure to file a bond in order to prevent execution; 4. Assurances made by respondent that all was right. 1. This is explained by the fact that the record was not in the clerk's office. The date when the answers to Filart's questions from the Land Registration Office reached Filart, which were to be made a part of the bill of exceptions, does

that a more severe punishment will be meted out to him in case of a repetition of similar acts and omissions; and let a copy hereof be filed with his personal papers in this court. So ordered. Arellano, C.J., Torres, Avancea, JJ., concur. Johnson, Araullo, Street and

G.R. No. L-22320 1968)

4 May 22, 1968

(24 SCRA 291,

sale on execution pending resolution of the abovementioned urgent motion to stay execution. On September 29, 1961 the respondent Judge promulgated two orders: the first denied the appeal of Perez and Subong from the abovementioned order of August 3, 1961 rejecting their petition for relief from judgment, and the second denied Perez' urgent motion to stay execution. Consequently, on October 4, 1961 the respondent Sheriff served a second notice of sale resetting the auction for October 10, 1961. This was cancelled by the Court of Appeals which issued on October 9, 1961 a writ of preliminary injunction, pending hearing of Perez' petition for mandamus and certiorari with preliminary injunction (CA-G.R. 29962-R) filed on October 5, 1961 against the respondents Judge and Sheriff, in which petition Perez alleged that (1) the levy upon his 3,573 shares of stock was manifestly and patently unjust, and (2) the respondent Judge committed grave abuse of discretion in denying his statutory right to appeal. On November 15, 1962 the Court of Appeals rendered judgment sustaining Perez' position with respect to the extent of the levy at the same time that it upheld the denial of his motion to appeal. The case was remanded for the second time to the court of origin on January 14, 1963. Subsequently, on January 18, 1963, the Sheriff published the third notice of sale this time for only 210 shares of stocks, setting the public sale for January 24, 1963. Two days before the scheduled sale on execution, or on January 22, 1963, a new twist was added to the already protracted litigation when the petitioner Mercedes Ruth Cobb-Perez, the wife of Damaso P. Perez, filed with the Court of First Instance of Rizal a complaint for injunction with ex parte writ of preliminary injunction against Hermoso, the Republic Bank and the Sheriff of Manila (civil case 7532), wherein she contended that the levied shares are conjugal assets which are not answerable for the judgment debt of Damaso Perez, an obligation contracted not for the benefit or interest of their conjugal partnership. On the following day, January 23, 1963, Judge Eulogio Mencias of the Court of First Instance of Rizal granted the ex parte writ of preliminary injunction, enjoining once more the respondent Sheriff from carrying out the execution sale. However, on October 4, 1963, Judge Mencias lifted the writ, in obeisance to the doctrine enunciated in Acosta vs. Alvendia (L-21719, October 31, 1960) to the effect that courts of first instance have no power to restrain acts outside their territorial jurisdictions. Incidentally, the abovementioned civil case 7532 was dismissed on November 9, 1963, upon motion of the complainant herself. A month before the aforementioned writ was lifted, or on September 3, 1963, Mrs. Perez filed in the basic civil case 39407 an urgent motion to recall or lift the writ of execution issued on August 15, 1961, alleging the same reasons she advanced in civil case 7532 then pending in the Court of First Instance of Rizal, which are the self-same grounds upon which the herein petitioners anchor the petition at bar the conjugal nature of the levied shares of stock and the personal nature of the obligation of Damaso Perez. Neither Mrs. Perez nor her counsel attended the scheduled hearings. On October 19, 1963 the respondent Judge promulgated an order denying the motion on the ground that "Mercedes Ruth Cobb-Perez is not a party in this case and that this (the motion to lift execution) is not the remedy prescribed by the Rules of Court in its Section 15 of Rule 39 for the protection

MERCEDES RUTH COBB-PEREZ and DAMASO P. PEREZ, petitioners, vs. HON. GREGORIO LANTIN, Judge of the Court of First Instance of Manila, RICARDO P. HERMOSO and the CITY SHERIFF OF MANILA, respondents. Crispin D. Baizas and Associates for petitioners. Isidro T. Almeda for respondents. CASTRO, J.: On January 10, 1964 the spouses Mercedes Ruth CobbPerez and Damaso P. Perez interposed the present petition for certiorari with urgent writ of preliminary injunction from the order of January 4, 1964 of the respondent Judge Gregorio T. Lantin of the Court of First Instance of Manila, which order denied a motion for reconsideration of a previous order rejecting a motion to quash the writ of execution herein controverted. A chronology of the essential antecedent events is necessary for a clear understanding of the case at bar.1vvphi1.nt On February 25, 1959 the respondent Ricardo P. Hermoso commenced civil case 39407 in the Court of First Instance of Manila (Branch VII presided by the respondent Judge) against the petitioner Damaso P. Perez and one Gregorio Subong, for the recovery of the principal sum of P17,309.44 representing unpaid purchases of leather materials used in the shoe manufacturing business of the said petitioner. Because at the hearing neither the defendants nor their counsel appeared despite due notice to the latter, Hermoso was permitted to present his evidence ex parte. On April 11, 1960 judgment was rendered ordering Perez and Subong to pay Hermoso jointly and severally the sum of P17,309.44 with interest, attorney's fees and costs. On June 21, 1960 Perez and Subong appealed to the Court of Appeals, which dismissed their appeal because it was filed beyond the reglementary period. Then on February 4, 1961 the defendants elevated the case to this Court on petition for certiorari, which was denied for lack of merit. After the case was remanded to the court of origin, Hermoso moved for execution of judgment, which was granted on July 1, 1961, and the corresponding writ of execution was issued on August 15, 1961. Meantime, on July 11, 1961, Perez and Subong filed a petition for relief from judgment, alleging excusable negligence. This petition was denied by the respondent Judge on August 3, 1961. From the order of denial, Perez and Subong on August 21, 1961 served notice of appeal to the Court of Appeals. On August 23, 1961 the respondent Sheriff of Manila levied upon 3,573 shares of common stock registered in the name of Damaso P. Perez with the Republic Bank. On August 30, 1961 Perez interposed an urgent motion to stay execution, alleging that the levy on said shares was highly excessive and unjust, considering that said shares have a total value of more than P357,300 while the judgment debt was only P17,309.44. On September 2, 1961 the Sheriff served and published the first notice of sale scheduling the auction sale of said shares for September 8, 1961. However, by order of September 7, 1961, the respondent Judge suspended the

of her right." The writ of preliminary injunction having been lifted by the Court of First Instance of Rizal, and the urgent motion to lift the writ of execution having been denied by the court a quo, the respondent Sheriff on October 18, 1963 caused the publication for the fourth time of a notice of sale setting the execution sale of 220 shares of stock for October 29, 1963. On October 23, 1963, Mrs. Perez filed with the respondent Sheriff a third-party claim over the aforesaid 220 shares of stock, but the latter was determined to proceed with the scheduled auction sale as he was protected by an indemnity bond filed by the respondent Hermoso. On October 25, 1963 Mrs. Perez, assisted by her husband, commenced civil case 55292, denominated an action to vindicate third-party claim with petition for preliminary injunction, in Branch XXII of the Court of First Instance of Manila, presided by Judge Federico Alikpala. As a consequence of the new action, projected execution sale was suspended for the fourth time. On November 8, 1963 Judge Alikpala denied the preliminary injunction prayed for in the aforesaid civil case 55292, on the grounds that (1) he has no power to interfere by injunction with the judgment or decree of a court of concurrent or coordinate jurisdiction and (2) the remedy of plaintiff (Mrs. Perez) is to lodge the third party claim filed by her with the court which issued the execution, "as it has the inherent control of its ministerial officers and to do all things reasonably necessary for the administration of justice." The aforesaid civil case 55292 was dismissed on March 20, 1964, upon agreement of the parties after the institution of the petition at bar. On the same day (November 8, 1963), Damaso Perez filed in the basic civil case 39407 an "Urgent Motion for Reconsideration" of the order of October 19, 1963 which denied his wife's motion to recall the controverted writ of execution. In this latest motion, Perez adopted his wife's previous motion, and at the same time offered in lieu of the levied stocks his alleged cash dividends in the Republic Bank in the sum of P19,985. In the same motion he asked for the suspension of the fifth scheduled auction sale set for November 11, 1963, which was granted ex parte. On January 4, 1964, the motion for reconsideration was denied by the respondent Judge. After the respondent Sheriff had scheduled (for the sixth time) the execution sale of the levied 240 shares of stock, the herein petitioners on January 10, 1965 interposed the present petition, which was given due course on January 15, 1964; the writ of preliminary injunction prayed for was issued upon petitioners posting a bond of P10,000. The movants-petitioners' main contention is that the respondent judge committed grave abuse of discretion in refusing to recall the controverted writ of execution despite their avowal that the levied 240 shares of stock belong to their conjugal partnership and as such cannot be made to answer for a judgment debt which is a personal obligation only of Damaso Perez. After a thorough review of the record, we hold that the respondent Judge acted correctly in refusing to quash the writ in dispute. It is conceded that courts have jurisdiction to entertain motions to quash their writs of execution because every court has the inherent power, for the advancement of justice, to correct errors of its ministerial officers and to control its

own processes.1 However, the exercise of this power is well circumscribed. Thus, the proper court may quash the writ only in certain situations, as when it appears that (a) it has been improvidently issued, or (b) it is defective in substance, or (c) it has been issued against the wrong party, or (d) the judgement debt has been paid, or (e) the writ has been issued without authority, or (f) there has been a change in the situation of the parties which makes such execution inequitable, or (g) the controversy has never been submitted to the judgment of the court, and therefore no judgment at all has ever been rendered thereon.2 In the instant controversy, not one of these accepted grounds exists. Significantly, the spouses have not questioned the intrinsic validity or regularity of the writ of execution. They have alleged none of the circumstances earlier enumerated or other similar grounds which may warrant the quashal of the writ in dispute. In reality, what they attacked is not the writ of execution, the validity and regularity of which are unchallenged, but the levy made by the respondent Sheriff. In this regard, the remedy is not the recall of the writ, but an independent action to enjoin the Sheriff from proceeding with the projected sale, in which action the conjugal nature of the levied stocks should be established as a basis for the subsequent issuance of a permanent injunction, in the event of a successful claim. Incidentally, in the course of the protracted litigation, the petitioners had already availed of this remedy in civil cases 7532 and 55292, only to abandon it as they incessantly sought other, and often simultaneous, devices of thwarting satisfaction of the judgment debt. Considering the antecedent facts, particularly CA-G.R. 29962-R, even the remedy indicated above must fail, as Damaso Perez is now estopped from asserting that the levied shares are conjugal assets. All along he has nurtured the impression that the said shares are his exclusive property, which representation was enhanced by the fact that the same are registered in his name alone. It bears emphasis that in CA-G.R. 29962-R, Damaso Perez practically asserted exclusive ownership of the levied shares; although he challenged the legality and propriety of the levy with respect to its excessive coverage, he never raised the question of the conjugal nature of the levied shares. Having represented himself before the court a quo and in the Court of Appeals as the exclusive owner of the shares in dispute, he is now precluded from asserting that the levied shares are conjugal assets, an assertion that he should have advanced with expected alacrity when he first question the legality of the levy. Coming now to the other petitioner, Mrs. Perez, although she was not a party in CA-G.R. 29962-R, the judgment therein similarly binds her for she stands in privity with her husband. Moreover, she cannot feign utter ignorance of the affairs of her husband as to justify her delay in questioning the legality of the levy on the ground aforestated in civil case 7532, which case was commenced only on January 22, 1963, 17 months after the original levy was made on August 23, 1961. Even granting that the court a quo could properly take cognizance of the said motion to quash the writ of execution, the movants-petitioners failed to subtantiate their claim that the levied shares are conjugal assets and that the judgment debt is a personal obligation only of Damaso Perez. Anent their claim that the shares in question are conjugal assets, the spouses Perez adduced not a modicum of evidence, although they repeatedly invoked article 160 of the

10

New Civil Code which provides that "All property of the marriage is presumed to belong to the conjugal partnership, unless it be proved that it pertains exclusively to the husband or to the wife." As interpreted by this Court, the party who invokes this presumption must first prove that the property in controversy was acquired during the marriage. In other words, proof of acquisition during the coverture is a condition sine qua non for the operation of the presumption in favor of conjugal ownership. Thus in Camia de Reyes vs. Reyes de Ilano,3 it was held that "according to law and jurisprudence, it is sufficient to prove that the property was acquired during the marriage in order that the same may be deemed conjugal property." In the recent case of Maramba vs. Lozano et al.,4 this Court, thru Mr. Justice Makalintal, reiterated that "the presumption under Article 160 of the Civil Code refers to property acquired during the marriage," and then concluded that since "there is no showing as to when the property in question was acquired ... the fact that the title is in the wife's name alone is determinative." Similarly, in the case at bar, since there is no evidence as to when the shares of stock were acquired, the fact that they are registered in the name of the husband alone is an indication that the shares belong exclusively to said spouse. Conceding, however, that the shares in question are conjugal assets, they must still prove that their ganancial partnership is not liable for the payment of the aforesaid judgment debt. This, they were unable to do. Their contention that the judgment debt is a personal obligation of only one of them is devoid of evidentiary foundation. It is, to say the least, a futile attempt to rebut the presumption that the husband, as head of the family and administrator of the conjugal partnership, contracts obligations for the benefit of his family or the partnership.5 The aforesaid obligation was contracted in the purchase of leather used in the shoe manufacturing business of the petitioner husband. Said business is an ordinary commercial enterprise for gain, in the pursuit of which Damaso Perez had the right to embark the partnership.6 It is well-settled that the debts contracted by the husband for and in the exercise of the industry or profession by which he contributes to the support of the family, cannot be deemed to be his exclusive and private debts.7 We feel compelled to observe that during the protracted litigation below, the petitioners resorted to a series of actions and petitions, at some stages alternatingly, abetted by their counsel, for the sole purpose of thwarting the execution of a simple money judgment which has long become final and executory. Some of the actions were filed, only to be abandoned or withdrawn. The petitioners and their counsel, far from viewing courts as sanctuaries for those who seek justice, have tried to use them to subvert the very ends of justice. ACCORDINGLY, the instant petition is dismissed, and the writ of preliminary injunction heretofore issued is hereby dissolved. Treble costs are assessed against the petitioners, which shall be paid by their counsel. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez and Angeles, JJ., concur. Fernando, J., is on leave.

11

5 G.R. No. L-28546 July 30, 1975 1975)

(65 SCRA 505,

VENANCIO CASTANEDA and NICETAS HENSON, petitioners, vs. PASTOR D. AGO, LOURDES YU AGO and THE COURT OF APPEALS, respondents. Quijano and Arroyo for petitioners. Jose M. Luison for respondents.

situation thus arose where what the Manila court had ordered to be done, the Quezon City court countermanded. On November 1, 1965, however, the latter court lifted the preliminary injunction it had previously issued, and the Register of deeds of Quezon City cancelled the respondents' certificates of title and issued new ones in favor of the petitioners. But enforcement of the writ of possession was again thwarted as the Quezon City court again issued a temporary restraining order which it later lifted but then rerestored. On May 3, 1967 the court finally, and for the third time, lifted the restraining order. While the battle on the matter of the lifting and restoring of the restraining order was being fought in the Quezon City court, the Agos filed a petition for certiorari and prohibition with this Court under date of May 26, 1966, docketed as L26116, praying for a writ of preliminary injunction to enjoin the sheriff from enforcing the writ of possession. This Court found no merit in the petition and dismissed it in a minute resolution on June 3, 1966; reconsideration was denied on July 18, 1966. The respondents then filed on August 2, 1966 a similar petition for certiorari and prohibition with the Court of Appeals (CA-G.R. 37830-R), praying for the same preliminary injunction. The Court of Appeals also dismissed the petition. The respondents then appealed to this Court (L27140).1wph1.t We dismissed the petition in a minute resolution on February 8, 1967. The Ago spouses repaired once more to the Court of Appeals where they filed another petition for certiorari and prohibition with preliminary injunction (CA-G.R. 39438-R). The said court gave due course to the petition and granted preliminary injunction. After hearing, it rendered decision, the dispositive portion of which reads: WHEREFORE, writ of preliminary injunction from enforcement of the writ of possession on and ejectment from the one-half share in the properties involved belonging to Lourdes Yu Ago dated June 15, 1967 is made permanent pending decision on the merits in Civil Case No. Q-7986 and ordering respondent Court to proceed with the trial of Civil Case No. Q-7986 on the merits without unnecessary delay. No pronouncement as to costs. Failing to obtain reconsideration, the petitioners Castaeda and Henson filed the present petition for review of the aforesaid decision. 1. We do not see how the doctrine that a court may not interfere with the orders of a co-equal court can apply in the case at bar. The Court of First Instance of Manila, which issued the writ of possession, ultimately was not interfered with by its co-equal court, the Court of First Instance of Quezon City as the latter lifted the restraining order it had previously issued against the enforcement of the Manila court's writ of possession; it is the Court of Appeals that enjoined, in part, the enforcement of the writ. 2. Invoking Comilang vs. Buendia, et al., 1 where the wife was a party in one case and the husband was a party in another case and a levy on their conjugal properties was upheld, the petitioners would have Lourdes Yu Ago similarly bound by the replevin judgment against her husband for which their conjugal properties would be answerable. The case invoked is not at par with the present case. In Comilang the actions were admittedly instituted for the protection of the common interest of the spouses; in the present case, the Agos deny that their conjugal partnership benefited from the husband's business venture. 3. Relying upon Omnas vs. Rivera, 67 Phil. 419, the Court of

CASTRO, J.: The parties in this case, except Lourdes Yu Ago, have been commuting to this Court for more than a decade. In 1955 the petitioners Venancio Castaeda and Nicetas Henson filed a replevin suit against Pastor Ago in the Court of First Instance of Manila to recover certain machineries (civil case 27251). In 1957 judgment was rendered in favor of the plaintiffs, ordering Ago to return the machineries or pay definite sums of money. Ago appealed, and on June 30, 1961 this Court, in Ago vs. Castaeda, L-14066, affirmed the judgment. After remand, the trial court issued on August 25, 1961 a writ of execution for the sum of P172,923.87. Ago moved for a stay of execution but his motion was denied, and levy was made on Ago's house and lots located in Quezon City. The sheriff then advertised them for auction sale on October 25, 1961. Ago moved to stop the auction sale, failing in which he filed a petition for certiorari with the Court of Appeals. The appellate court dismissed the petition and Ago appealed. On January 31,1966 this Court, in Ago vs. Court of Appeals, et al., L-19718, affirmed the dismissal. Ago thrice attempted to obtain a writ of preliminary injunction to restrain the sheriff from enforcing the writ of execution "to save his family house and lot;" his motions were denied, and the sheriff sold the house and lots on March 9, 1963 to the highest bidders, the petitioners Castaeda and Henson. Ago failed to redeem, and on April 17, 1964 the sheriff executed the final deed of sale in favor of the vendees Castaeda and Henson. Upon their petition, the Court of First Instance of Manila issued a writ of possession to the properties. However, on May 2, 1964 Pastor Ago, now joined by his wife, Lourdes Yu Ago, as his co-plaintiff, filed a complaint in the Court of First Instance of Quezon City (civil case Q-7986) to annul the sheriff's sale on the ground that the obligation of Pastor Ago upon which judgment was rendered against him in the replevin suit was his personal obligation, and that Lourdes Yu Ago's one-half share in their conjugal residential house and lots which were levied upon and sold by the sheriff could not legally be reached for the satisfaction of the judgment. They alleged in their complaint that wife Lourdes was not a party in the replevin suit, that the judgment was rendered and the writ of execution was issued only against husband Pastor, and that wife Lourdes was not a party to her husband's venture in the logging business which failed and resulted in the replevin suit and which did not benefit the conjugal partnership. The Court of First Instance of Quezon City issued an ex parte writ of preliminary injunction restraining the petitioners, the Register of Deeds and the sheriff of Quezon City, from registering the latter's final deed of sale, from cancelling the respondents' certificates of title and issuing new ones to the petitioners and from carrying out any writ of possession. A

12

Appeals held that a writ of possession may not issue until the claim of a third person to half-interest in the property is adversely determined, the said appellate court assuming that Lourdes Yu Ago was a "stranger" or a "third-party" to her husband. The assumption is of course obviously wrong, for, besides living with her husband Pastor, she does not claim ignorance of his business that failed, of the relevant cases in which he got embroiled, and of the auction sale made by the sheriff of their conjugal properties. Even then, the ruling in Omnas is not that a writ of possession may not issue until the claim of a third person is adversely determined, but that the writ of possession being a complement of the writ of execution, a judge with jurisdiction to issue the latter also has jurisdiction to issue the former, unless in the interval between the judicial sale and the issuance of the writ of possession, the rights of third parties to the property sold have supervened. The ruling in Omnas is clearly inapplicable in the present case, for, here, there has been no change in the ownership of the properties or of any interest therein from the time the writ of execution was issued up to the time writ of possession was issued, and even up to the present. 4. We agree with the trial court (then presided by Judge Lourdes P. San Diego) that it is much too late in the day for the respondents Agos to raise the question that part of the property is unleviable because it belongs to Lourdes Yu Ago, considering that (1) a wife is normally privy to her husband's activities; (2) the levy was made and the properties advertised for auction sale in 1961; (3) she lives in the very properties in question; (4) her husband had moved to stop the auction sale; (5) the properties were sold at auction in 1963; (6) her husband had thrice attempted to obtain a preliminary injunction to restrain the sheriff from enforcing the writ of execution; (7) the sheriff executed the deed of final sale on April 17, 1964 when Pastor failed to redeem; (8) Pastor had impliedly admitted that the conjugal properties could be levied upon by his pleas "to save his family house and lot" in his efforts to prevent execution; and (9) it was only on May 2, 1964 when he and his wife filed the complaint for annulment of the sheriff's sale upon the issue that the wife's share in the properties cannot be levied upon on the ground that she was not a party to the logging business and not a party to the replevin suit. The spouses Ago had every opportunity to raise the issue in the various proceedings hereinbefore discussed but did not; laches now effectively bars them from raising it. Laches, in a general sense, is failure or neglect, for an unreasonable and unexplained length of time, to do that which, by exercising due diligence, could or should have been done earlier; it is negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it. 2 5. The decision of the appellate court under review suffers from two fatal infirmities. (a) It enjoined the enforcement of the writ of possession to and ejectment from the one-half share in the properties involved belonging to Lourdes Yu Ago. This half-share is not in esse, but is merely an inchoate interest, a mere expectancy, constituting neither legal nor equitable estate, and will ripen into title when only upon liquidation and settlement there appears to be assets of the community. 3 The decision sets at naught the well-settled rule that injunction does not issue to protect a right not in esse and which may never arise. 4 (b) The decision did not foresee the absurdity, or even the impossibility, of its enforcement. The Ago spouses admittedly

live together in the same house 5 which is conjugal property. By the Manila court's writ of possession Pastor could be ousted from the house, but the decision under review would prevent the ejectment of Lourdes. Now, which part of the house would be vacated by Pastor and which part would Lourdes continue to stay in? The absurdity does not stop here; the decision would actually separate husband and wife, prevent them from living together, and in effect divide their conjugal properties during coverture and before the dissolution of the conjugal union. 6. Despite the pendency in the trial court of the complaint for the annulment of the sheriff's sale (civil case Q-7986), elementary justice demands that the petitioners, long denied the fruits of their victory in the replevin suit, must now enjoy them, for, the respondents Agos, abetted by their lawyer Jose M. Luison, have misused legal remedies and prostituted the judicial process to thwart the satisfaction of the judgment, to the extended prejudice of the petitioners. The respondents, with the assistance of counsel, maneuvered for fourteen (14) years to doggedly resist execution of the judgment thru manifold tactics in and from one court to another (5 times in the Supreme Court). We condemn the attitude of the respondents and their counsel who, far from viewing courts as sanctuaries for those who seek justice, have tried to use them to subvert the very ends of justice. 6 Forgetting his sacred mission as a sworn public servant and his exalted position as an officer of the court, Atty. Luison has allowed himself to become an instigator of controversy and a predator of conflict instead of a mediator for concord and a conciliator for compromise, a virtuoso of technicality in the conduct of litigation instead of a true exponent of the primacy of truth and moral justice. A counsel's assertiveness in espousing with candour and honesty his client's cause must be encouraged and is to be commended; what we do not and cannot countenance is a lawyer's insistence despite the patent futility of his client's position, as in the case at bar. It is the duty of a counsel to advise his client, ordinarily a layman to the intricacies and vagaries of the law, on the merit or lack of merit of his case. If he finds that his client's cause is defenseless, then it is his bounden duty to advise the latter to acquiesce and submit, rather than traverse the incontrovertible. A lawyer must resist the whims and caprices of his client, and temper his clients propensity to litigate. A lawyer's oath to uphold the cause of justice is superior to his duty to his client; its primacy is indisputable. 7 7. In view of the private respondents' propensity to use the courts for purposes other than to seek justice, and in order to obviate further delay in the disposition of the case below which might again come up to the appellate courts but only to fail in the end, we have motu proprio examined the record of civil case Q-7986 (the mother case of the present case). We find that (a) the complaint was filed on May 2, 1964 (more than 11 years ago) but trial on the merits has not even started; (b) after the defendants Castaedas had filed their answer with a counterclaim, the plaintiffs Agos filed a supplemental complaint where they impleaded new parties-defendants; (c) after the admission of the supplemental complaint, the

13

Agos filed a motion to admit an amended supplemental complaint, which impleads an additional new party-defendant (no action has yet been taken on this motion); (d) the defendants have not filed an answer to the admitted supplemental complaint; and (e) the last order of the Court of First Instance, dated April 20, 1974, grants an extension to the suspension of time to file answer. (Expediente, p. 815) We also find that the alleged causes of action in the complaint, supplemental complaint and amended supplemental complaint are all untenable, for the reasons hereunder stated. The Complaint Upon the first cause of action, it is alleged that the sheriff levied upon conjugal properties of the spouses Ago despite the fact that the judgment to be satisfied was personal only to Pastor Ago, and the business venture that he entered into, which resulted in the replevin suit, did not redound to the benefit of the conjugal partnership. The issue here, which is whether or not the wife's inchoate share in the conjugal property is leviable, is the same issue that we have already resolved, as barred by laches, in striking down the decision of the Court of Appeals granting preliminary injunction, the dispositive portion of which was herein-before quoted. This ruling applies as well to the first cause of action of the complaint. Upon the second cause of action, the Agos allege that on January 5, 1959 the Castaedas and the sheriff, pursuant to an alias writ of seizure, seized and took possession of certain machineries, depriving the Agos of the use thereof, to their damage in the sum of P256,000 up to May 5, 1964. This second cause of action fails to state a valid cause of action for it fails to allege that the order of seizure is invalid or illegal. It is averred as a third cause of action that the sheriff's sale of the conjugal properties was irregular, illegal and unlawful because the sheriff did not require the Castaeda spouses to pay or liquidate the sum of P141,750 (the amount for which they bought the properties at the auction sale) despite the fact that there was annotated at the back of the certificates of title a mortgage of P75,000 in favor of the Philippine National Bank; moreover, the sheriff sold the properties for P141,750 despite the pendency of L-19718 where Pastor Ago contested the amount of P99,877.08 out of the judgment value of P172,923.37 in civil case 27251; and because of said acts, the Agos suffered P174,877.08 in damages. Anent this third cause of action, the sheriff was under no obligation to require payment of the purchase price in the auction sale because "when the purchaser is the judgment creditor, and no third-party claim has been filed, he need not pay the amount of the bid if it does not exceed the amount of his judgment." (Sec. 23, Rule 39, Rules of Court) The annotated mortgage in favor of the PNB is the concern of the vendees Castaedas but did not affect the sheriff's sale; the cancellation of the annotation is of no moment to the Agoo. Case L-19718 where Pastor Ago contested the sum of P99,877.08 out of the amount of the judgment was dismissed by this Court on January 31, 1966. This third cause of action, therefore, actually states no valid cause of action and is moreover barred by prior judgment.

The fourth cause of action pertains to moral damages allegedly suffered by the Agos on account of the acts complained of in the preceding causes of action. As the fourth cause of action derives its life from the preceding causes of action, which, as shown, are baseless, the said fourth cause of action must necessarily fail. The Counterclaim As a counterclaim against the Agos, the Castaedas aver that the action was unfounded and as a consequence of its filing they were compelled to retain the services of counsel for not less than P7,500; that because the Agos obtained a preliminary injunction enjoining the transfer of titles and possession of the properties to the Castaedas, they were unlawfully deprived of the use of the properties from April 17, 1964, the value of such deprived use being 20% annually of their actual value; and that the filing of the unfounded action besmirched their feelings, the pecuniary worth of which is for the court to assess. The Supplemental Complaint Upon the first cause of action, it is alleged that after the filing of the complaint, the defendants, taking advantage of the dissolution of the preliminary injunction, in conspiracy and with gross bad faith and evident intent to cause damage to the plaintiffs, caused the registration of the sheriff's final deed of sale; that, to cause more damage, the defendants sold to their lawyer and his wife two of the parcels of land in question; that the purchasers acquired the properties in bad faith; that the defendants mortgaged the two other parcels to the Rizal Commercial Banking Corporation while the defendants' lawyer and his wife also mortgaged the parcels bought by them to the Rizal Commercial Bank; and that the bank also acted in bad faith. The second cause of action consists of an allegation of additional damages caused by the defendants' bad faith in entering into the aforesaid agreements and transactions. The Amended Supplemental Complaint The amendment made pertains to the first cause of action of the supplemental complaint, which is, the inclusion of a paragraph averring that, still to cause damage and prejudice to the plaintiffs, Atty. & Mrs. Juan Quijano, in bad faith sold the two parcels of land they had previously bought to Eloy Ocampo who acquired them also in bad faith, while Venancio Castaeda and Nicetas Henson in bad faith sold the two other parcels to Juan Quijano (60%) and Eloy Ocampo (40%) who acquired them in bad faith and with knowledge that the properties are the subject of a pending litigation. Discussion on The Causes of Action of The Supplemental Complaint And The Amended Supplemental Complaint Assuming hypothetically as true the allegations in the first cause of action of the supplemental complaint and the amended supplemental complaint, the validity of the cause of action would depend upon the validity of the first cause of action of the original complaint, for, the Agos would suffer no transgression upon their rights of ownership and possession of the properties by reason of the agreements subsequently entered into by the Castaedas and their lawyer if the sheriff's levy and sale are valid. The reverse is also true: if the sheriff's levy and sale are invalid on the ground that the conjugal properties could not be levied upon, then the transactions would perhaps prejudice the Agos, but, we have already indicated that the issue in the first cause of action of

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the original complaint is barred by laches, and it must therefore follow that the first cause of action of the supplemental complaint and the amended supplemental complaint is also barred. For the same reason, the same holding applies to the remaining cause of action in the supplemental complaint and the amended supplemental complaint. ACCORDINGLY, the decision of the Court of Appeals under review is set aside. Civil case Q-7986 of the Court of First Instance of Rizal is ordered dismissed, without prejudice to the re-filing of the petitioners' counterclaim in a new and independent action. Treble costs are assessed against the spouses Pastor Ago and Lourdes Yu Ago, which shall be paid by their lawyer, Atty. Jose M. Luison. Let a copy of this decision be made a part of the personal file of Atty. Luison in the custody of the Clerk of Court. Makasiar, Esguerra, Muoz Palma and Martin, JJ., concur. Teehankee, J., is on leave.

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6 G.R. No. L-27072 January 9, 1970 (31 SCRA 1, 1970) SURIGAO MINERAL RESERVATION BOARD, ET AL., petitioners, vs. HON. GAUDENCIO CLORIBEL ETC., ET AL., respondents, In Re: Contempt Proceedings Against Attorneys Vicente L. Santiago, Jose Beltran Sotto, Graciano C. Regala and Associates, Erlito R. Uy, Juanito M. Caling; and Morton F. Meads. RESOLUTION SANCHEZ, J.: After the July 31, 1968 decision of this Court adverse to respondent MacArthur International Minerals Co., the Solicitor General brought to our attention statements of record purportedly made by Vicente L. Santiago, Erlito R. Uy, Graciano Regala, and Jose Beltran Sotto, members of the Bar, with the suggestion that disciplinary action be taken against them. On November 21, 1968, this Court issued a show-cause order. The following statements, so the Solicitor General avers, are set forth in the memoranda personally signed by Atty. Jose Beltran Sotto: a. They (petitioners, including the Executive Secretary) have made these false, ridiculous and wild statements in a desperate attempt to prejudice the courts against MacArthur International. Such efforts could be accurately called "scattershot desperation" (Memorandum for Respondents dated March 27, 1968, pp. 13-14, three lines from the bottom of page 13 and first line page 14). b. Such a proposition is corrupt on its face and it lays bare the immoral and arrogant attitude of the petitioners. (Respondents' Supplemental Memorandum and Reply to Petitioner's Memorandum Brief, dated April 13, 1968, p. 16, last two lines on bottom of the page). c. The herein petitioners ... opportunistically change their claims and stories not only from case to case but from pleading to pleading in the same case. (Respondents' Supplemental Memorandum, Ibid., p.17, sixth, seventh and eighth lines from bottom of the page). MacArthur's third motion for reconsideration signed by Atty. Vicente L. Santiago, on his behalf and purportedly for Attys. Erlito R. Uy, Graciano Regala and Associates, and Jose B. Sotto, the Solicitor General points out, contain the following statements: d. ... ; and [the Supreme Court] has overlooked the applicable law due to the misrepresentation and obfuscation of the petitioners' counsel. (Last sentence, par. 1, Third Motion for Reconsideration dated Sept. 10, 1968). e. ... Never has any civilized, democratic tribunal ruled that such a gimmick (referring to the "right to reject any and all bids") can be used by vulturous executives to cover up and excuse losses to the public, a government agency or just plain fraud ... and it is thus difficult, in the light of our upbringing and schooling, even under many of the incumbent justices, that the Honorable Supreme Court intends to create a decision that in effect does precisely that in a most absolute manner. (Second sentence, par. 7, Third Motion for Reconsideration dated Sept. 10, 1968).

The motion to inhibit filed on September 21, 1968 after judgment herein was rendered and signed by Vicente L. Santiago for himself and allegedly for Attys. Erlito R. Uy, and Graciano Regala and Associates, asked Mr. Chief Justice Roberto Concepcion and Mr. Justice Fred Ruiz Castro to inhibit themselves from considering, judging and resolving the case or any issue or aspect thereof retroactive to January 11, 1967. The motion charges "[t]hat the brother of the Honorable Associate Justice Castro is a vice-president of the favored party who is the chief beneficiary of the false, erroneous and illegal decision dated January 31, 1968" and the ex parte preliminary injunction rendered in the aboveentitled case, the latter in effect prejudging and predetermining this case even before the joining of an issue. As to the Chief Justice, the motion states "[t]hat the son of the Honorable Chief Justice Roberto Concepcion was given a significant appointment in the Philippine Government by the President a short time before the decision of July 31, 1968 was rendered in this case." The appointment referred to was as secretary of the newly-created Board of Investments. The motion presents a lengthy discourse on judicial ethics, and makes a number of side comments projecting what is claimed to be the patent wrongfulness of the July 31, 1968 decision. It enumerates "incidents" which, according to the motion, brought about respondent MacArthur's belief that "unjudicial prejudice" had been caused it and that there was "unjudicial favoritism" in favor of "petitioners, their appointing authority and a favored party directly benefited by the said decision." The "incidents" cited are as follows: (a) said decision is in violation of the law, which law has not been declared unconstitutional. (b) said decision ignores totally the applicable law in the above-entitled case. (c) said decision deprives respondent of due process of law and the right to adduce evidence as is the procedure in all previous cases of this nature. (d) due course was given to the unfounded certiorari in the first place when the appeal from a denial of a motion to dismiss was and is neither new nor novel nor capable of leading to a wholesome development of the law but only served to delay respondent for the benefit of the favored party. (e) the preliminary injunction issued herein did not maintain the status quo but destroyed it, and the conclusion cannot be avoided that it was destroyed for a reason, not for no reason at all. (f) there are misstatements and misrepresentations in the said decision which the Honorable Supreme Court has refused to correct. (g) the two main issues in the said decision were decided otherwise in previous decisions, and the main issue "right to reject any or all bids" is being treated on a double standard basis by the Honorable Supreme Court. (h) the fact that respondent believes that the Honorable Supreme Court knows better and has greater understanding than the said decision manifests. (i) the public losses (sic) one hundred and fifty to two hundred million dollars by said decision without an effort by the Honorable Supreme Court to learn all the facts through presentation through the trial court, which is

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elementary. On November 21, 1968, Atty. Vicente L. Santiago, again for himself and Attys. Erlito R. Uy and Graciano Regala and Associates, in writing pointed out to this Court that the statements specified by the Solicitor General were either quoted out of context, could be defended, or were comments legitimate and justifiable. Concern he expressed for the fullest defense of the interests of his clients. It was stressed that if MacArthur's attorney could not plead such thoughts, his client would be deprived of due process of law. However, counsel sought to change the words "Chief Justice" to "Supreme Court" appearing on line 7, paragraph 2 of the motion to inhibit. Atty. Santiago also voluntarily deleted paragraph 6 of the said motion, which in full reads: 6. Unfortunately for our people, it seems that many of our judicial authorities believe that they are the chosen messengers of God in all matters that come before them, and that no matter what the circumstances are, their judgment is truly ordained by the Almighty unto eternity. Some seem to be constitutionally incapable of considering that any emanation from their mind or pen could be the product of unjudicial prejudice or unjudicial sympathy or favoritism for a party or an issue. Witness the recent absurdity of Judge Alikpala daring to proceed to judge a motion to hold himself in contempt of court seemingly totally oblivious or uncomprehending of the violation of moral principle involved and also of Judge Geraldez who refuses to inhibit himself in judging a criminal case against an accused who is also his correspondent in two other cases. What is the explanation for such mentality? Is it outright dishonesty? Lack of intelligence? Serious deficiency in moral comprehension? Or is it that many of our government officials are just amoral? And, in addition, he attempted to explain subparagraphs (f) and (h) of paragraph 7 thereof. further

though, that those statements lifted out of context would indeed be sufficient basis for a finding that Section 20(f), Rule 138, had been violated. On January 8, 1969, additional arguments were filed by Atty. Jose Beltran Sotto. He there averred that the Supreme Court had no original jurisdiction over the charge against him because it is one of civil contempt against a party and the charge is originally cognizable by the Court of First Instance under Sections 4 and 10, Rule 71 of the Rules of Court. He also stressed that said charge was not signed by an "offended party or witness", as required by law; and that the Solicitor General and his assistants could not stand in the stead of an "offended Party or witness." We now come to Atty. Graciano C. Regala. In his explanation of December 2, 1968, as further clarified by a supplemental motion of December 27, 1968, he manifested that the use of or reference to his law firm in this case was neither authorized nor consented to by him or any of his associates; that on July 14, 1967, one Morton F. Meads, in MacArthur's behalf, offered to retain his services, which was accepted; that Meads inquired from him whether he could appear in this case; that he advised Meads that this case was outside his professional competence and referred Meads to another lawyer who later on likewise turned down the offer; that in view of the rejection, Meads and he agreed to terminate their previous retainer agreement; that he had not participated in any manner in the preparation or authorship of any pleading or any other document in connection with this case. On February 4, 1969, Atty. Erlito R. Uy explained his side of the case. In brief, he denied participation in any of the court papers subject of our November 21, 1968 order; claimed that he was on six months' leave of absence from July 1, 1968 to December 31, 1968 as one of the attorneys for MacArthur but that he gave his permission to have his name included as counsel in all of MacArthur's pleadings in this case (L27072), even while he was on leave of absence. Hearing on this contempt incident was had on March 3, 1969. A second contempt proceeding arose when, on July 14, 1969, respondent MacArthur, through new counsel, Atty. Juanito M. Caling who entered a special appearance for the purpose, lodged a fourth motion for reconsideration without express leave of court. Said motion reiterated previous grounds raised, and contained the following paragraphs: 4. The said decision is illegal because it was penned by the Honorable Chief Justice Roberto Concepcion when in fact he was outside the borders of the Republic of the Philippines at the time of the Oral Argument of the above-entitled case which condition is prohibited by the New Rules of Court Section 1, Rule 51, and we quote: "Justices; who may take part. ... . only those members present when any matter is submitted for oral argument will take part in its consideration and adjudication ..." This requirement is especially significant in the present instance because the member who penned the decision was the very member who was absent for approximately four months or more. This provision also applies to the Honorable Justices Claudio Teehankee and Antonio Barredo. xxx xxx xxx

It was on December 2, 1968 that Atty. Vicente L. Santiago filed his compliance with this Court's resolution of November 21, 1968. He there stated that the motion to inhibit and third motion for reconsideration were of his exclusive making and that he alone should be held responsible therefor. He further elaborated on his explanations made on November 21, 1968. On December 5, 1968, he supplemented his explanations by saying that he already deleted paragraph 6 of the Motion to Inhibit heretofore quoted from his rough draft but that it was still included through inadvertence. On March 1, 1969, Atty. Vicente L. Santiago, as counsel for MacArthur, registered an amended motion to inhibit. While it repeats the prayer that Mr. Chief Justice Concepcion and Mr. Justice Castro inhibit themselves, it left but three paragraphs of the original motion to inhibit, taking out the dissertation on judicial ethics and most of the comments attacking the decision of this Court of July 31, 1968. On the part of Atty. Jose Beltran Sotto, it must be stated that as early as October 7, 1968, he insisted in withdrawing his appearance in this case as one of the lawyers of MacArthur. His ground was that he did not agree with the filing of the motion to inhibit the two justices. According to him, "[t]he present steps (sic) now being taken is against counsel's upbringing and judicial conscience." In Atty. Jose Beltran Sotto's return of November 29, 1968, he took pains to say that the questioned statements he made were also taken out of context and were necessary for the defense of his client MacArthur. He made the admission,

6. That if the respondent MacArthur International Minerals Company abandons its quest for justice in the Judiciary of the Philippine Government, it will inevitably either raise the

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graft and corruption of Philippine Government officials in the bidding of May 12, 1965, required by the Nickel Law to determine the operator of the Surigao nickel deposits, to the World Court on grounds of deprivation of justice and confiscation of property and /or to the United States Government, either its executive or judicial branches or both, on the grounds of confiscation of respondent's proprietary vested rights by the Philippine Government without either compensation or due process of law and invoking the Hickenlooper Amendment requiring the cutting off of all aid and benefits to the Philippine Government, including the sugar price premium, amounting to more than fifty million dollars annually, until restitution or compensation is made. This elicited another resolution from this Court on July 18, 1969, requiring Atty. Juanito M. Caling "to show cause within five (5) days from receipt of notice hereof why he should not be dealt with for contempt of court." On July 30, 1969, Atty. Juanita M. Caling filed his return. He there alleged that the said fourth motion for reconsideration was already finalized when Atty. Vicente L. Santiago came to his office and requested him to accommodate MacArthur by signing the motion; that he turned down said request twice on the ground that he did not know anything about the case, much less the truth of the allegations stated in the motion; that "the allegations in said motion were subsequently explained to the undersigned counsel together with the background of the case involved by Atty. Vicente L. Santiago and by one Morton F. Meads"; that upon assurance that there was nothing wrong with the motion he was persuaded in good faith to sign the same; that he was misled in so signing and the true facts of the allegations were not revealed to him especially the oral argument allegedly made in the case. Because of the foregoing explanation by Atty. Caling, this Court, on August 4, 1969, resolved "to require Atty. Vicente L. Santiago and Morton Meads to file in writing their answer to the said return [of Atty. Caling] and at the same time to show cause why they, Atty. Vicente L. Santiago and Morton Meads, should not be dealt with for contempt of court, on or before August 16, 1969; and ... to direct that the three, Atty. Juanita M. Caling, Atty. Vicente L. Santiago, and Morton Meads, personally appear Before this Court on Thursday, August 27, 1969, at 9:30 a.m., on which date the contempt proceedings against all of them will be heard by this Court." On August 13, 1969, Atty. Vicente L. Santiago gave his explanation. He disavowed the truth of Atty. Caling's statement that he (Santiago) convinced Caling to sign the motion. The truth, according to Santiago, is that one day Morton Meads went to his office and asked him if he knew of a lawyer nearby who could help him file another motion for reconsideration, and he (Santiago) mentioned Atty. Caling; he there upon accompanied Meads to Caling, told Caling of Meads' desire and left Meads with Caling. Santiago insists that he never prepared the motion and that he never even read it. On August 15, 1969, Morton Meads answered. Meads' version is as follows: On July 14, 1969, he went to Atty. Santiago's office with the fourth motion for reconsideration which he himself prepared. Santiago started to read the motion and in fact began to make some changes in Pencil in the first or second paragraph when Meads told him that MacArthur wanted a new lawyer, not Santiago, to file the same. Meads asked Santiago if he could recommend one. They then went to Caling whose office was on the same floor. Santiago introduced Meads to Caling at the same time handing the fourth motion to Caling. While Caling was

reading the document, Santiago left. After reading the motion, Caling gave his go-signal. He signed the same after his name was typed therein. The motion was then filed. According to Meads, from the time he entered the office of Santiago to the time the motion was filed, the period that elapsed was approximately one hour and a half. Santiago was with Caling for about three minutes and Meads was with Caling for about fifteen minutes. In defending himself from the contempt charge, Meads asserts that the quotation from the Rules of Court set forth in the fourth motion for reconsideration has not been taken out of context because said quotation is precisely accurate; that the "xs" indicate that it is not a complete quotation and that it is a common practice in court pleadings to submit partial quotations. Meads further contends that the announced plan to bring the case to the World Court is not a threat. In fact, his answer also included a notice of appeal to the World Court. On August 27, 1969, this Court heard Attys. Vicente L. Santiago and Juanito Caling and Morton Meads in oral argument with respect to the second contempt incident. We shall now discuss the first and second contempt incidents seriatim. 1. We start with the case of Atty. Vicente L. Santiago. In his third motion for reconsideration, we, indeed, find language that is not to be expected of an officer of the courts. He pictures petitioners as "vulturous executives". He speaks of this Court as a "civilized, democratic tribunal", but by innuendo would suggest that it is not. In his motion to inhibit, his first paragraph categorizes our decision of July 31, 1968 as "false, erroneous and illegal" in a presumptuous manner. He there charges that the ex parte preliminary injunction we issued in this case prejudiced and predetermined the case even before the joining of an issue. He accuses in a reckless manner two justices of this Court for being interested in the decision of this case: Associate Justice Fred Ruiz Castro, because his brother is the vice president of the favored party who is the chief beneficiary of the decision, and Chief Justice Roberto Concepcion, whose son was appointed secretary of the newly-created Board of Investments, "a significant appointment in the Philippine Government by the President, a short time before the decision of July 31, 1968 was rendered." In this backdrop, he proceeds to state that "it would seem that the principles thus established [the moral and ethical guidelines for inhibition of any judicial authority by the Honorable Supreme Court should first apply to itself." He puts forth the claim that lesser and further removed conditions have been known to create favoritism, only to conclude that there is no reason for a belief that the conditions obtaining in the case of the Chief Justice and Justice Castro "would be less likely to engender favoritism or prejudice for or against a particular cause or party." Implicit in this at least is that the Chief Justice and Justice Castro are insensible to delicadeza, which could make their actuation suspect. He makes it plain in the motion that the Chief Justice and Justice Castro not only were not free from the appearance of impropriety but did arouse suspicion that their relationship did affect their judgment. He points out that courts must be above suspicion at all times like Caesar's wife, warns that loss of confidence for the Tribunal or a member thereof should not be allowed to happen in our country, "although the process has already begun." It is true that Santiago voluntarily deleted paragraph 6 which contained language that is as disrespectful. But we cannot erase the fact that it has been made. He explained that, he

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deleted this paragraph in his rough draft, which paragraph was included in the motion filed in this Court only because of mere inadvertence. This explanation does not make much of a distinguishing difference; it erects no shield. Not only because it was belatedly made but also because his signature appeared on the motion to inhibit which included paragraph 6. And this paragraph 6 describes with derision "many of our judicial authorities" who "believe that they are the chosen messengers of God in all matters that come before them, and that no matter what the circumstances are, their judgment is truly ordained by the Almighty unto eternity." It depicts them as seemingly "incapable of considering that any emanation from their mind or pen could be the product of unjudicial prejudice or unjudicial sympathy or favoritism for a party or an issue." After citing acts of two judges of first instance, he paused to ask: "What is the explanation for such mentality? Is it outright dishonesty? Lack of intelligence? Serious deficiency in moral comprehension? Or is it that many of our government officials are just amoral?" Paragraph 7 also of the motion to inhibit repeated mention of "unjudicial prejudice" against respondent MacArthur and spoke of "unjudicial favoritism" for petitioners, their appointing authority and a favored party directly benefited by the decision. Paragraph 8 is a lecture on judicial ethics. Paragraph 9 is a warning to this Court about loss of confidence, and paragraph 10 makes a sweeping statement that "any other justices who have received favors or benefits directly or indirectly from any of the petitioners or members of any board-petitioner, or their agents or principals, including the President", should also inhibit themselves. What is disconcerting is that Atty. Santiago's accusations have no basis in fact and in law. The slur made is not limited to the Chief Justice and Mr. Justice Castro. It sweepingly casts aspersion on the whole court. For, inhibition is also asked of, we repeat, "any other justices who have received favors or benefits directly or indirectly from any of the petitioners or any members of any board-petitioner or their agents or principals, including the president." The absurdity of this posture is at once apparent. For one thing, the justices of this Court are appointed by the President and in that sense may be considered to have each received a favor from the President. Should these justices inhibit themselves every time a case involving the Administration crops up? Such a thought may not certainly be entertained. The consequence thereof would be to paralyze the machinery of this Court. We would in fact, be wreaking havoc on the tripartite system of government operating in this country. Counsel is presumed to know this. But why the unfounded charge? There is the not-too-well concealed effort on the part of a losing litigant's attorney to downgrade this Court. The mischief that stems from all of the foregoing gross disrespect is easy to discern. Such disrespect detracts much from the dignity of a court of justice. Decidedly not an expression of faith, counsel's words are intended to create an atmosphere of distrust, of disbelief. We are thus called upon to repeat what we have said in Rheem of the Philippines vs. Ferrer (1967), 20 SCRA 441, 444, as follows: "By now, a lawyer's duties to the Court have become common place. Really, there could hardly be any valid excuse for lapses in the observance thereof. Section 20(b), Rule 138 of the Rules of Court, in categorical terms, spells out one such duty: 'To observe and maintain the respect due to the courts of justice and judicial officers.' As explicit is the first canon of legal ethics which pronounces that '[i]t is the duty of the lawyer to maintain towards the Courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its

supreme importance.' That same canon, as a corollary, makes it peculiarly incumbent upon lawyers to support the courts against 'unjust criticism and clamor.' And more. The attorney's oath solemnly binds him to a conduct that should be 'with all good fidelity ... to the courts.' Worth remembering is that the duty of an attorney to the courts can only be maintained by rendering no service involving any disrespect to the judicial office which he is bound to uphold.' " A lawyer is an officer of the courts; he is, "like the court itself, an instrument or agency to advance the ends of justice."1 His duty is to uphold the dignity and authority of the courts to which he owes fidelity, "not to promote distrust in the administration of justice."2 Faith in the courts a lawyer should seek to preserve. For, to undermine the judicial edifice "is disastrous to the continuity of government and to the attainment of the liberties of the people."3 Thus has it been said of a lawyer that "[a]s an officer of the court, it is his sworn and moral duty to help build and not destroy unnecessarily that high esteem and regard towards the courts so essential to the proper administration of justice."4 It ill behooves Santiago to justify his language with the statement that it was necessary for the defense of his client. A client's cause does not permit an attorney to cross the line between liberty and license. Lawyers must always keep in perspective the thought that "[s]ince lawyers are administrators of justice, oath-bound servants of society, their first duty is not to their clients, as many suppose, but to the administration of justice; to this, their clients' success is wholly subordinate; and their conduct ought to and must be scrupulously observant of law and ethics."5 As rightly observed by Mr. Justice Malcolm in his well-known treatise, a judge from the very nature of his position, lacks the power to defend himself and it is the attorney, and no other, who can better or more appropriately support the judiciary and the incumbent of the judicial position.6 From this, Mr. Justice Malcolm continued to say: "It will of course be a trying ordeal for attorneys under certain conditions to maintain respectful obedience to the court. It may happen that counsel possesses greater knowledge of the law than the justice of the peace or judge who presides over the court. It may also happen that since no court claims infallibility, judges may grossly err in their decisions. Nevertheless, discipline and self-restraint on the part of the bar even under adverse conditions are necessary for the orderly administration of justice."7 The precepts, the teachings, the injunctions just recited are not unfamiliar to lawyers. And yet, this Court finds in the language of Atty. Santiago a style that undermines and degrades the administration of justice. The stricture in Section 3 (d) of Rule 71 of the Rules against improper conduct tending to degrade the administration of justice8 is thus transgressed. Atty. Santiago is guilty of contempt of court. 2. We next take the case of Atty. Jose Beltran Sotto. We analyze the statements pointed out to us by the Solicitor General hereinbefore quoted. Sotto accuses petitioners of having made "false, ridiculous and wild statements in a desperate attempt to prejudice the courts against MacArthur." He brands such efforts as "scattershot desperation". He describes a proposition of petitioners as "corrupt on its face", laying bare "the immoral and arrogant attitude of the petitioners." He charges petitioners with opportunistically changing their claims and stories not only from case to case but from pleading to pleading in the same case. Such language is not arguably protected; it is the surfacing of a feeling of contempt towards a litigant; it offends the court before which it is made. It is no excuse to

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say that these statements were taken out of context. We have analyzed the lines surrounding said statements. They do not in any manner justify the inclusion of offensive language in the pleadings. It has been said that "[a] lawyer's language should be dignified in keeping with the dignity of the legal profession."9 It is Sotto's duty as a member of the Bar "[t]o abstain from all offensive personality and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged." 10 Not far from the case of Atty. Sotto is People vs. Young, 83 Phil. 702, 708, where counsel for the accused convicted of murder made use of the following raw language in his brief : "The accused since birth was a poor man and a son of a poor farmer, that since his boyhood he has never owned a thousand pesos in his own name. Now, here comes a chance for him. A cold fifty thousand bucks in exchange of a man's life. A simple job. Perhaps a question of seconds' work and that would transform him into a new man. Once in a small nipa shack, now in a palatial mansion! This poor ignorant man blinded by the promise of wealth, protection and stability was given to do the forbidden deed." We there held that "[s]uch a plea is a disgrace to the bar and an affront to the court." It will not avail Sotto any to say that the Solicitor General or his assistants may not be considered offended parties in this case. This Court may motu proprio start proceedings of this nature. There should be no doubt about the power of this Court to punish him for contempt under the circumstances. For, inherent in courts is the power "[t]o control, in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a case before it, in every manner appertaining thereto." 11 We, accordingly, hold that Atty. Jose Beltran Sotto has misbehaved, under Section 3 (a), Rule 71 of the Rules of Court, as an officer of the court in the performance of his official duties; and that he too has committed, under Section 3 (d) of the same rule, improper conduct tending to degrade the administration of justice. He is, therefore, guilty of contempt. 3. Not much need be said of the case of Atty. Graciano C. Regala. It was improper for Atty. Santiago to have included the name of the firm of Atty. Regala without the latter's knowledge and consent. Correctly did Regala insist and this is confirmed by the other lawyers of respondents that he had not participated in any way in the pleadings of the above-entitled case. Regala did not even know that his name was included as co-counsel in this case. He is exonerated. 4. Last to be considered with respect to the first contempt incident is the case of Atty. Erlito R. Uy. Borne out by the record is the fact that Atty. Uy was not also involved in the preparation of any of the pleadings subject of the contempt citation. He should be held exempt from contempt. 5. We now turn our attention to the second contempt incident. The fourth motion for reconsideration is, indeed, an act of contumacy. First. It was filed without express leave of court. No explanation has been made why this has been done. Second. It lifted Section 1. Rule 51, Rules of Court, out of context. Said Section 1 was quoted as follows: "Justices; who may take part. ... only those members present when any matter is submitted for oral argument will take part in its

consideration and adjudication ..." However, the provision in its entire thought should be read thus SECTION 1. Justices; who may take part. All matters submitted to the court for its consideration and adjudication will be deemed to be submitted for consideration and adjudication by any and all of the Justices who are members of the division of the court at the time when such matters are taken up for consideration and adjudication, whether such Justices were or were not present at the date of submission; however, only those members present when any matter is submitted for oral argument will take part in its consideration and adjudication, if the parties or either of them, express a desire to that effect in writing filed with the clerk at the date of submission. 12 Atty. Caling, who was admitted to the Bar in 1966, did not attempt to explain this point. Meads, however, for his part tried to reason out why such a distorted quotation came about the portion left out was anyway marked by "XS" which is a common practice among lawyers. Canon 22 of the Canons of Legal Ethics reminds the lawyer to characterize his conduct with candor and fairness, and specifically states that "it is not candid nor fair for the lawyer knowingly to misquote." While Morton Meads is admittedly not a lawyer, it does not take a lawyer to see the deliberate deception that is being foisted upon this Court. There was a qualification to the rule quoted and that qualification was intentionally omitted. Third. The motion contained an express threat to take the case to the World Court and/or the United States government. It must be remembered that respondent MacArthur at that time was still trying to overturn the decision of this Court of July 31, 1968. In doing so, unnecessary statements were injected. More specifically, the motion announced that MacArthur "will inevitably ... raise the graft and corruption of [the] Philippine government officials in the bidding of May 12, 1965 ... to the World Court" and would invoke "the Hickenlooper Amendment requiring the cutting off of all aid and benefits to the Philippine Government, including the sugar price premium, amounting to more than fifty million dollars annually ... ." This is a clear attempt to influence or bend the mind of this Court to decide the case in its favor. A notice of appeal to the World Court has even been embodied in Meads' return. There is a gross inconsistency between the appeal and the move to reconsider the decision. An appeal from a decision presupposes that a party has already abandoned any move to reconsider that decision. And yet, it would appear that the appeal to the World Court is being dangled as a threat to effect a change of the decision of this Court. Such act has no aboveboard explanation. 6. Atty. Caling has not shown to the satisfaction of this Court that he should be exempted from the contempt charge against him. He knows that he is an officer of this Court. He admits that he has read the fourth motion for reconsideration before he signed it. While he has been dragged in only at the last minute, still it was plainly his duty to have taken care that his name should not be attached to pleadings contemptuous in character. 7. As for Morton F. Meads, he had admitted having prepared the fourth motion for reconsideration. He cannot beg off from the contempt charge against him even though he is not a lawyer. He is guilty of contempt. 8. We go back to Atty. Vicente L. Santiago. His insistence

20

that he had nothing to do with the fourth motion for reconsideration and that he had not even read the same is too transparent to survive fair appraisal. It goes against the grain of circumstances. Caling represents before us that it was Santiago who convinced him to sign the motion, who with Meads explained to him the allegations thereof and the background of the case. Caling says that if not for his friendship with Santiago, he would not have signed the motion. On the other hand, Meads states that Santiago began to read the fourth motion for reconsideration and even started to make changes thereon in pencil. We must not forget, too, that according to Meads himself, he spent, on July 14, 1969, quite some time with Santiago before they proceeded to Caling. It is highly improbable that Santiago did not read the fourth motion for reconsideration during all that time. Furthermore, Santiago is a lawyer of record for respondent MacArthur in this case. He has not resigned from his position as such lawyer. He has control of the proceedings. Whatever steps his client takes should be within his knowledge and responsibility. Indeed, Canon 16 of the Canons of Legal Ethics should have reminded him that "[a] lawyer should use his best efforts to restrain and to prevent his clients from doing those things which the lawyer himself ought not to do, particularly with reference to their conduct towards courts, judicial officers, jurors, witnesses and suitors. If a client persists in such wrongdoing the lawyer should terminate their relation." The dignity of the Court, experience teaches, can never be protected where infraction of ethics meets with complacency rather than punishment. The people should not be given cause to break faith with the belief that a judge is the epitome of honor amongst men. To preserve its dignity, a court of justice should not yield to the assaults of disrespect. Punctilio of honor, we prefer to think, is a standard of behavior so desirable in a lawyer pleading a cause before a court of justice. 9. One last word. It would seem apropos to say again that, if only for one reason, this Court had really no alternative but to decide the main case against respondent MacArthur. As we held in our decision of July 31, 1968, MacArthur did not even adhere to the terms and conditions of the invitation to bid. For, this invitation to bid explicitly warned that "bids not accompanied by bid bonds will be rejected. And We repeat, "[a]dmittedly, the bid of the Company [MacArthur] had been submitted without the requisite bond." 13 It would not require the adroit mind of a lawyer to say that a bid unaccompanied by a bond., contrary to the instructions to bidders, is not entitled to any consideration. It should be emphasized, too, that because the decision herein was by a unanimous Court, even if the Chief Justice and Mr. Justice Fred Ruiz Castro had not taken part in the decision on the merits of this case, the result would have been the same: MacArthur's cause would just the same have failed. For the reasons given, this Court hereby finds: 1. On the first contempt charge, Atty. Vicente L. Santiago and Atty. Jose Beltran Sotto guilty of contempt of court, and fines Atty. Santiago in the sum of P1,000, and Atty. Sotto, P100; and holds Attys. Graciano C. Regala and Associates and Atty. Erlito R. Uy not guilty of contempt of court; and 2. On the second contempt charge, Atty. Vicente L. Santiago, Morton F. Meads and Atty. Juanita M. Caling guilty of contempt of court, and fines Atty. Vicente L. Santiago, an

additional P1,000, Morton F. Meads, P1,000, and Atty. Juanito M. Caling, P200. Let a copy of this resolution be forwarded to the Honorable, the Secretary of Justice, for whatever action he may deem proper to take in the premises against Morton F. Meads who is an alien. Let another copy of this resolution be forwarded to the Honorable, the Solicitor General, for such action as he may deem proper in relation to the disbarment or suspension of Attys. Vicente L. Santiago, Jose Beltran Sotto and Juanito M. Caling. The Clerk of this Court is hereby directed to append a copy of this decision to the personal records of Attorneys Vicente L. Santiago, Jose Beltran Sotto and Juanito M. Caling. So ordered. Reyes, J.B.L., Dizon, Makalintal, Zaldivar and Fernando, JJ., concur. Concepcion C.J., Castro, Teehankee and Barredo, JJ., took no part.

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G.R. No. L-25400 Phil 857, 1927)

7 January 14, 1927

(49

THE PHILIPPINE NATIONAL BANK, plaintiff-appellee, vs. THE PHILIPPINE VEGETABLE OIL CO., INC., defendantappellee. PHIL. C. WHITAKER, intevenor-appellant. Jose Abad Santos for plaintiff-appellee. No appearance for defendant-appellee. Ross, Lawrence & Selph, Thomas Cary Welch and Paredes, Buencamino & Yulo for appellant. MALCOLM, J.: This appeal involves the legal right of the Philippine National Bank to obtain a judgment against the Philippine Vegetable Oil Co., Inc., for P15,812,454, and to foreclose a mortgage on the property of the Philippine Vegetable Oil Co., Inc., for P17,000,000, and the legal right of Phil. C. Whitaker as intervenor to obtain a judgment declaring the mortgage which the Philippine National Bank seeks to foreclose to be without force and effect, requiring an accounting from the Philippine National Bank of the sales of the property and assets of the Philippine Vegetable Oil Co., Inc., and ordering the Philippine Vegetable Oil Co., Inc., and the Philippine National Bank to pay him the sum of P4,424,418.37. In 1920, the Philippine Vegetable Oil Co., Inc., which will hereafter be called the Vegetable Oil Company, found itself in financial straits. It was in debt to the extent of approximately P30,000,000. The Philippine National Bank was the largest creditor. The Vegetable Oil Company owed the bank P17,000,000. Over P13,000,000 were due the other creditors. The Philippine National Bank was secured principally by a real and chattel mortgage for P3,500,000. On January 10, 1921, the Vegetable Oil Company executed another chattel mortgage in favor of the bank on its vessels Tankerville and H. S. Everett to guarantee the payment of sums not to exceed P4,000,000. This was the precarious situation which in the latter part of 1920 and the early part of 1921 confronted the Vegetable Oil Company, its General Manager Phil. C. Whitaker, the Philippine National Bank, and the various creditors of the Vegetable Oil Company. Bankruptcy was imminent. On January 1, 1921, Mr. Whitaker made his first offer to pledge certain private properties to secure the creditors of the Oil Company (Intervenor's Exhibit 1). In February of the same year, a creditors' meeting was held. At the instance of Mr. Whitaker but inspired to such action by the bank, a receiver for the Vegetable Oil Company was appointed by the Court of First Instance of Manila on March 11, 1921. (Case No. 19644, Court of First Instance of Manila.) During the period when a receiver was in control of the property of the Vegetable Oil Company, a number of events occurred. The first was the agreement perfected by the Vegetable Oil Company, Mr. Whitaker, and some of the creditors of the Oil Company on June 27, 1921, the creditors transferred to Mr. Whitaker a part of their claims against the Vegetable Oil Company in consideration of the execution by Mr. Whitaker of a trust deed of his property. The Philippine National Bank was not a direct party to the agreement although the officials of the bank had full knowledge of its accomplishment and the general manager of the bank placed his O. K. at the end of the final draft. (Intervenor's Exhibit 10.) The next move of the bank was to obtain a new mortgage from the Vegetable Oil Company on February 20,

1922. Shortly thereafter, on February 28, 1922, the receivership for the Vegetable Oil Company was terminated. The bank suspended the operation of the Vegetable Oil Company in May, 1922, and definitely closed the Oil Company's plant on August 14, 1922. Out of the foregoing facts which are not in dispute and others which are in dispute, arose the action of the Philippine National Bank of May 7, 1924, to foreclose its mortgage on the property of the Vegetable Oil Company. The Vegetable Oil Company on its part countered with certain special defenses which need not be described and with the interposition of a counterclaim for P6,000,000. Phil. C. Whitaker presented a complaint in intervention. The judgment rendered was in favor of the plaintiff and against the defendant which was ordered to pay the sum of P15,787,454.54, representing the liquidation between the plaintiff and the defendant, with legal interest beginning with May 8, 1923, together with P25,000 attorney's fees, and costs, with the addition of the usual order to foreclose the mortgage. The counterclaim of the defendant and the complaint in intervention were dismissed. The trial judge in his decision announced and answered three questions, viz: (1) Whether the execution of the mortgage, Exhibit A of the plaintiff, was the free act of the defendant; (2) whether this mortgage was null and without force because at the time of its execution all the property of the defendant was under the control of a receiver appointed by the court and neither the approval of the receiver nor of the court had been obtained; and (3) whether the plaintiff had failed to comply with the contract, that it was alleged to have celebrated with the defendant and the intervenor, that it would furnish funds to the defendant so that it could continue operating its factory. Much the same analysis of the issues is made by the intervenor as appellant. The first error, in relation with the sixth error of the assignment of errors, concerns the holding that the mortgage, Exhibit A, has been legally and validly executed by the Philippine Vegetable Oil Co., Inc. The second, third, fourth, and fifth errors, in relation with the sixth error of the assignment of errors, concern the holding that the Philippine National Bank had not bound itself to finance the operation of the Philippine Vegetable Oil Co., Inc. In this later connection, the main point at issue between the Philippine National Bank and Phil. C. Whitaker as disclosed by the amended answer of the Philippine National Bank to the complaint in intervention, and the opening sentence of the memorandum for intervenor-appellant filed in this court, is whether the Philippine National Bank ever made any contract binding the bank to provide the necessary operating capital to the Philippine Vegetable Oil Co., Inc., and whether Mr. Whitaker has established his right to recover damages from the bank by reason of the latter's alleged refusal to finance the operation of the Philippine Vegetable Oil Co., Inc. It results, therefore, in the appeal dividing into two main subjects, the first, the validity of the Philippine National Bank-Philippine Vegetable Oil Co., Inc., mortgage of February 20, 1922, and second, the alleged agreement of the Philippine Vegetable Oil Co., Inc. These two topics we propose to discuss separately and in order. Parenthetically, it may be said that our mode of approach will be to sweep aside technicalities and to resolve in a broad and liberal manner the various perplexing questions which are before the court. I. Validity of the Philippine National Bank Philippine Vegetable Oil Co., Inc., mortgage of February 10, 1922. At the outset, the appellee challenges the right of Phil. C. Whitaker as intervenor to ask that the mortgage contract executed by the Vegetable Oil Company be declared null

22

and void. Appellee is right as to the premises. The Vegetable Oil Company is the defendant. The corporation has not appealed. At the same time, it is evident that Phil. C. Whitaker was one of the largest individual stockholders of the Vegetable Oil Company, and was until the inauguration of the receivership, exercising control over and dictating the policy of that company. Out of twenty-eight thousand shares of the Vegetable Oil Company, Mr. Whitaker was the owner of 5,893 fully paid shares of the par value of P100 each. He it was who asked for the appointment of the receiver. He it was who was the leading figure in the negotiations between the Vegetable Oil Company, the Philippine National Bank, and the other creditors. He it was who pledged his own property to the extent of over P4,000,000 in an endeavor to assist in the rehabilitation of the Vegetable Oil Company. He is in juriously affected by the mortgage. In truth, Mr. Whitaker is more vitally interested in the outcome of this case than is the Vegetable Oil Company. Conceivably if the mortgage had been the free act of the Vegetable Oil Company, it could not be heard to allege its own fraud, and only a creditor could take advantage of the fraud to intervene to avoid the conveyance. We find no merit in appellee's objection and pass on to consider the main question on its merits. The mortgage, Exhibit A, was executed on February 20, 1922, by "Philippine Vegetable Oil Co., Inc., By E. G. Abry, Secretary-Treasurer" "Philippine National Bank By E. W. Wilson, General Manager." E. G. Abry, according to his testimony, was employed as secretary-treasurer of the Vegetable Oil Company after a conference with Mr. Wilson and continued in this position during the period when the Vegetable Oil Company was under the control either of a receiver or of the bank. The other signature to the instrument was that of E. W. Wilson, General Manager of the Philippine National Bank. At this time, E. W. Wilson and Miguel Cuaderno, a Director of the Philippine National Bank, were serving as Directors of the Vegetable Oil Company. Messrs. Wilson had on July 26, 1921, in a letter to Mr. Whitaker relative to the reorganization of the Vegetable Oil Company, suggested the resignation of two members of the Board of Directors so that the bank might "have rather a close working relationship with the Philippine Vegetable Oil Co." (Intervenor's Exhibit 4). The resolution of the Board of Directors of September 2, 1921, naming Messrs. Wilson and Cuaderno "to represent the Philippine National Bank in the Board of Directors of the Philippine Vegetable Oil Co. as members thereof" did so with the understanding "that neither one of them has any interest other than that of the bank's in the Philippine Vegetable Oil Co., and that in accepting these directorships they are doing it solely for the bank." According to the testimony of Major Randall, Mr. Wilson became President of the Vegetable Oil Company on September 12, 1921. It has been said that the mortgage was executed on February 20, 1922. That is undeniable. The allegation of the plaintiff's complaint is "That the defendant, on the 20th day of February, 1922, duly executed to the plaintiff a mortgage." The mortgage in question recites: "This mortgage, executed at the City of Manila, Philippine Islands, this twentieth day of February, nineteen hundred and twenty-two." However, the mortgage was not ratified before a notary public until March 8, 1922, and was not recorded in the registry of property until March 21, 1922. To add one more date, it will be recalled that the receivership ended on February 28, 1922. In other words, as partially interpretative of the situation, the mortgage was executed by

the Philippine National Bank, through its General Manager, and another corporation before the termination of the receivership of the said corporation, but was not acknowledged or recorded until after the termination of the receivership. In the complaint of Phil. C. Whitaker filed in the Court of First Instance of Manila in which it was prayed that a receiver be appointed to take charge of the Philippine Vegetable Oil Co., Inc., it was alleged "that the largest individual creditor of said corporation is the Philippine National Bank, the indebtedness to which amounts to approximately P16,000,000, a portion of which indebtedness is secured by mortgage on the major part of the assets of the corporation." The order of the court appointing a receiver contained a similar recital. The Philippine National Bank held the mortgage mentioned, and possibly two others not mentioned, when the receivership proceedings were initiated. It must be evident to all that the Philippine National Bank could legally secure no new mortgage by the accomplishment of documents between its officials and the officials of the Vegetable Oil Company while the property of the latter company was in custodia legis. The Vegetable Oil Company was then inhibited absolutely from giving a mortgage on its property. The receiver was not a party to the mortgage. The court had not authorized the receiver to consent to the execution of a new mortgage. Whether the court could have done so is doubtful, but that it would have thus consented is hardly debatable, considering that it would desire to protect the rights of all the creditors and not the rights of one particular creditor. The legal conclusion is axiomatic. (Code of Civil Procedure, secs. 173 et seq., Compaia General de Tabaccos vs. Gauzon and Pomar [1911], 20 Phil., 261.) To all this the appellee as well as the trial court have answered that while it is true that the document was executed on February 20, 1922, at a time when the properties of the mortgagor were under receivership, the mortgage was not acknowledged before a notary public until March 8, 1922, after the court had determined that the necessity for a receiver no longer existed. But the additional fact remains that while the mortgage could not have been executed without the dissolution of the receivership, such dissolution was apparently secured through representations made to the court by counsel for the bank that the bank would continue to finance the operations of the Vegetable Oil Company (See testimony of Judge Simplicio del Rosario). Instead of so doing, the bank within less than two months after the mortgage was recorded, withdrew its support from the Vegetable Oil Company, and in effect closed its establishment. Also it must not be forgotten that the hands of other creditors were tied pursuant to the creditors' agreement of June 27, 1921. To place emphasis on the outstanding facts, it must be repeated that the mortgage was executed while a receiver was in charge of the Vegetable Oil Company. A mortgage accomplished at such a time by the corporation under receivership and a creditor would be a nullity. The mortgage was definitely perfected subsequent to the lifting of the receivership pursuant to implied promises that the bank would continue to operate the Vegetable Oil Company. It was then accomplished when the Philippine National Bank was a dominating influence in the affairs of the Vegetable Oil Company. On the one hand was the Philippine National Bank in person. On the other hand was the Philippine National Bank by proxy. Under such circumstances, it would be unconscionable to allow the bank, after the hands of the other creditors were tied, virtually to appropriate to itself all

23

the property of the Vegetable Oil Company. Whether we consider the action taken as not expressing the free will of the Vegetable Oil Company, or as disclosing undue influence on the part of the Philippine National Bank in procuring the mortgage, or as constituting deceit under the civil law, or whether we go still further and classify the facts as constructive fraud, the result is the same. The mortgage is clearly voidable. The setting aside of the mortgage of February 20, 1922, will not necessarily result in the Philippine National Bank being left without security. It is our understanding that before the receivership was thought of, the bank was the holder of three mortgages on the property of the Vegetable Oil Company, the first dated April 11, 1919, for an uncertain amount; the second, dated November 18, 1920, for P3,500,000; and the third, dated January 10, 1921, for P4,000,000. These mortgages remain in effect and may be foreclosed. Addressing ourselves directly to the first two questions discussed in the decision of the trial court and to the first and sixth errors assigned by the intervenor as appellant, we rule that the Philippine National Bank-Philippine Vegetable Co., Inc., mortgage of February 20, 1922, has not been legally executed by the Philippine Vegetable Oil Co., Inc. II. Alleged agreement of the Philippine National Bank to finance the Philippine Vegetable Oil Co., Inc. Before it need be decided if the intervenor has a right to recover damages from either the plaintiff or the defendant because of the plaintiff's refusal to finance the operations of the defendant, it must be determined if the Philippine National Bank ever entered into any valid agreement by which it bound itself to provide the necessary operating capital of the Philippine Vegetable Oil Co., Inc. The question presents both legal and factual aspects. The legal inquiry relates to the applicability or non-applicability of the Statute of Frauds as found in section 335 of our Code of Civil Procedure. The question of fact goes on the assumption that the oral evidence can be received without violating the Statute of Frauds and then, of course, comes down to the weighing of the evidence. The broad view is that the Statute of Frauds applies only to agreements not to be performed on either side within a year from the making thereof. Agreements to be fully performed on one side within the year are taken out of the operation of the statute. As intervenor's theory proceeds on the assumption that Mr. Whitaker has entirely performed his part of the agreement, equity would argue that all evidence be admitted to prove the alleged agreement. Surely since the Statute of Frauds was enacted for the purpose of preventing frauds, it should not be made the instrument to further them. As preliminary to a presentation of the evidence, it is well to have an understanding of the applicable law. The Charter of the Philippine National Bank, Act No. 2612, section 20, as amended by Act No. 2938, provides that "The General Manager of the Bank, shall, among others, have the following powers and duties: . . . (b) To make, with advice and consent of the board of directors, all contracts on beheld of the said bank and to enter into all necessary obligations by this Act required or permitted." Predicated on our general liberal point of view, we feel free to take into consideration the applicable law although no special defense to this effect was interposed by the Philippine National Bank to intervenor's complaint. Let us now look into the evidence in detail. We may properly

begin with the applicable resolutions of the Board of Directors of the Philippine National Bank. In the minutes of the Board of Directors of the Philippine National Bank of October 4, 1921, is found the following: Philippine Vegetable Oil Co. On motion of Director Westerhouse, duly seconded, the following resolution was adopted by the Board: Be it resolved, that the General Manager be, and he is, hereby authorized to finance the operation of the Philippine Vegetable Oil Co. under the Receivership to the extent of P500,000 to be secured by copra and oil and to be further secured by P500,000 pledged by Phil. C. Whitaker in his creditor's agreement. Under date of October 28, 1921, is found the following: The following additional loans with which to buy more copra were approved by the Board, at the recommendation of the Oil Factory Committee. Philippine Vegetable Oil Co. F. W. Carpenter, Receiver, P. V. O., P200,000. Under date of December 5, 1921, is found the following: After a long discussion and careful deliberation, and on motion of Director Westerhouse, duly seconded by Director Seaver, the following was unanimously approved by the Board: To protect the large investments of the Bank, it is the sense of the Board of Directors to continue financing the operation under receivership of the Philippine Vegetable Oil Co., the Philippine Manufacturing Co., the Cristobal Oil Co., and the Santa Ana Oil Mills, in as modest and economical way as is consistent with conditions, the General Manager to report and secure the approval of the Board for necessary credits from time to time, and that the Board also recommends that the Oil Committee continue studying the advisability of financing the operation of other oil mills indebted to the Bank. Other portions of the minutes of the Board of Directors disclose that the Board authorized advances to the Vegetable Oil Company to the extent of more than P1,000,000. Logically, our review of the evidence should stop here. No contract entered into by the General Manager of the Bank would be valid unless made with the advice and consent of its Board of Directors. What the Board of Directors had decreed was that the Vegetable Oil Company be financed under the receivership to the extent of P500,000, a sum which was later increased. The Board not alone specified the amounts of the loans but cautiously added that the General Manager "report and secure the approval of the Board for necessary credits from time to time." There was no indication in any action taken by the Board of Directors that it had ever consented to an agreement for practically unlimited backing of the Vegetable Oil Company, or that it had ratified any such promise made by its General Manager. Out of consideration for the parties, however, we will go further and will examine the remaining evidence. Passing in review intervenor's exhibits, we first notice Mr. Whitaker's letter to the Hongkong and Shanghai Banking Corporation of January 1, 1921. He there confirms his undertaking to assume an obligation to pledge and mortgage specified personal holdings. The offer is made "contingent upon its acceptance by the other unsecured creditors . . . . A further condition to the foregoing offer is that the banks parties to the proposed arrangement supply, subject to the approval of their representatives on the Board of Directors of

24

the P. V. O. Co., funds sufficient to enable the P. V. O. Co., to continue its operations during the full term for which my personal secured undertaking remains in effect." The condition named related to all the banks and not the Philippine National Bank. (Intervenor's Exhibit 1.) The trust deed by Mr. Whitaker in favor of H. C. Stanford makes the purposes and uses among others "To secure the Philippine National Bank against such losses as it may sustain, not exceeding a total of P500,000, on such sums as it shall, from time to time and within three years from July 1, 1921, advance to the Philippine Vegetable Oil Company to enable the latter to resume business and continue the manufacture of vegetable oil." This recital is specific as to P500,000 and is general as to further advances, and is made in a document to which the Philippine National Bank was not a party. (Intervenor's Exhibit 2.) The creditors' agreement is of similar tenor. (Intervenor's 3.) One of the paragraphs in the preamble of the power of attorney from the Roman Catholic Archbishop of Manila to Phil. C. Whitaker mentioned that Mr. Whitaker "has also arranged with the Philippine National Bank for the funds necessary to enable said Oil Company to resume its business and continue in the manufacture of vegetable oil." Although this proxy may have been procured at the instance of the Philippine National Bank, yet obviously it did not bind the officials of the bank. (Intervenor's Exhibit 5.) The letter of Mr. Wilson as General Manager of the Philippine National Bank of June 8, 1921, addressed to Mr. Whitaker stated: "I see no good reason why you should use your property to secure unsecured obligations, and not provide for the operation of the plant." Merely a friendly warning. (Intervenor's Exhibit 8.) Mr. Wilson's letter to Mr. Whitaker to enabled the Bank to put its securities in firstclass shape. In order to do this, however, it was necessary for it to furnish certain money for operating the plant, and an additional mortgage was executed. . . . It is my judgment that it was good business for the Philippine National Bank to operate the plant as long as it had the P500,000 guarantee. However, the bank put into the undertaking a great deal more money than it originally intended. Then, too, the guarantee was not as good as we thought, because the first lien on the property was not being paid off as rapidly as we thought it would be." Here was merely an expression of gratification regarding the additional mortgage and emphasis on the P500,000 guarantee. (Intervenor's Exhibit 7.) We discover nothing further of interest in the exhibits. The only oral testimony in point is that given by A. D. Gibbs and Phil. C. Whitaker. Mr. Gibbs, testifying as to a meeting of the creditors of the Vegetable Oil Company, said: "Mr. Wilson stated in substance that if the negotiations which were then pending between Mr. Whitaker and the other creditors, whereby the other creditors were to refrain from throwing the P. V. O. Co. into insolvency or from bringing action against it, could be carried out, that his bank would finance the P. V. O. Co., and keep it in operation." Mr. Whitaker, testifying as to the same meeting, said: Mr. Wilson stated that he had looked into the affairs of the P. V. O. as far as the short time he had permitted, and that the P. V. O. had evidently made good money in the past and if allowed to resume would make good again in the future, that the P. N. B., as the largest creditor, contemplated financing a resumption of the company's operations if the company could be kept out of insolvency." Giving to this testimony its broadest effect, we still discover no definite agreement binding on the bank but only a general intimation proffered by the General Manager of the Bank in conference that his bank contemplated financing the operations of the Vegetable Oil Company. That is all the evidence, documentary and oral, at all pertinent to the issue. We are clear that taking it entirely into

consideration it discloses no binding promise, tacit or express, made by the Philippine National Bank to continue indefinitely its backing of the Vegetable Oil Company. Mr. Whitaker was in no way personally responsible for any part of the obligations of the Vegetable Oil Company. Nevertheless, he signed the creditors' agreement. That was a praiseworthy act. We sympathize with him in the situation in which he finds himself. The various creditors have a large amount of his property. The Philippine National Bank has taken over the assets of the Vegetable Oil Company. The latter company has ceased operations. Mr. Whitaker has not made himself the successor in interest of the Vegetable Oil Company and so cannot recover from it in these proceedings. But sympathy cannot be transmuted into legal authoritativeness. If Mr. Whitaker has any other remedy, that is for him to determine. Here we cannot give him redress for he has not made out his case except insofar as he has been successful in overturning the last mortgage of the Philippine National Bank on the property of the Vegetable Oil Company. III. Result We announce the following conclusions: (1) Plaintiff is entitled to a money judgment against the defendant for P14,183,679.37 with legal interest thereon beginning with May 8, 1924. Exhibit C 1 shows that after May 6, 1924, when Exhibit B 1 was formulated, two further payments were made on the promissory note for P16,869,975.59, which further reduced the principal from P15,760,312.85 as totaled in Exhibit B 1 to P14,183,679.37 as evidenced by Exhibit C 1. As interest has already been charged up to May 7, 1924, legal interest should begin to run from that date instead of from May 8, 1923, as fixed by the trial court. (2) The Philippine National Bank-Philippine Vegetable Oil Co., mortgage of February 20, 1922, has not been legally executed by the Philippine Vegetable Oil Co., Inc., and consequently cannot be given effect. But the prior mortgages held by the Philippine National Bank of April 11, 1919, November 18, 1920, and January 10, 1921, remain in force and may be foreclosed. (3) The Philippine National Bank will obviously have a preferred claim when the three mortgages above mentioned shall be foreclosed. The remainder of the assets of the Philippine Vegetable Oil Co., Inc., if any, should then be applied to the payment pro rata of the unsecured claims, among them that of Mr. Whitaker and the unsecured part of the debt to the Philippine National Bank. Intervenor Whitaker is entitled to an accounting of the proceeds of the Vegetable Oil Company's properties caused to be sold by the Philippine National Bank and of the business operations of the Vegetable Oil Company since March 11, 1921. (4) Intervenor Whitaker has failed to establish an agreement binding the Philippine National Bank to provide the necessary operating capital to the Vegetable Oil Company, and so is not entitled to recover damages from the Philippine National Bank. Nor can intervenor Whitaker recover P4,424,418.37 from the Vegetable Oil Company since he is not the legatee of the assets of that company. The trial judge accordingly committed no error in dismissing intervenor's complaint. (5) No pronouncement is made with reference to intervenor Whitaker's possible rights in connection with the creditors' agreement since that agreement is not here in question and

25

the parties thereto are not before the court. The case will be remanded to the lower court for the entry of judgment and further proceedings as herein indicated. Judgment affirmed in part and reversed in part, without special finding as to costs in either instance. Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

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8 [A.C. No. 4646. April 6, 2000] 2000) (330 SCRA 1,

ROSITA S. TORRES, Complainant, v. ATTY. AMADO D. ORDEN, respondent. DECISION VITUG, J.: Complainant Rosita S. Torres engaged the services of respondent Atty. Amado D. Orden to represent her in Civil Case No. 1928-R for the recovery of possession of a market stall from spouses Prudencio and Victorina Gayo before the Regional Trial Court, Branch 6, of Baguio City. In time, a decision was rendered in favor of Torres. The Gayo spouses appealed the case to the Court of Appeals. Respondent lawyer failed to submit an appellee's brief before the appellate court; hence, the resolution, dated 05 July 1994, of the Court of Appeals"No appellee's brief having been filed per JRD Report of June 16, 1994, the Court resolved to submit the case for decision sans appellee's brief. Let the case be re-raffled for study and report."1 On 25 September 1995, the Court of Appeals issued a decision in favor of the spouses Prudencio and Victorina Gayo. On 12 October 1995, respondent lawyer filed with this Court a Notice of Petition for Review on Certiorari. On 15 January 1996, no Petition for Review on Certiorari having theretofore been filed, this Court issued a resolution declaring the case terminated and the judgment of the Court of Appeals final and executory. Thus"It appearing that petitioner failed to file the intended petition for review on certiorari within the reglementary period, the Court further resolved to DECLARE THIS CASE TERMINATED AND DIRECT the Clerk of Court to INFORM the parties that the judgment sought to be reviewed has become final and executory, no appeal therefrom having been timely perfected."2 Complainant thereupon filed the instant Administrative Complaint against respondent for the latter's failure to properly discharge his duty as such counsel despite his having allegedly received the amount of Twenty-Five Thousand Pesos (P25,000.00) for court expenses and attorney's fees.3 In a manifestation, dated 11 January 1997, to this Court, respondent explained that"x x x when undersigned filed his Notice for Review on Certiorari, he had then expected to receive a notice for the payment of fees and thereupon the number of days within which to file his brief"Sc "x x x "x x x had undersigned been given notice to pay the fees and file the brief for the complainant within such time as this Honorable Court may have directed, undersigned would have paid such fees and filed the said brief."4 In its resolution of 17 February 1997, the Court referred the case to the Integrated Bar of the Philippines ("IBP") for investigation, report and recommendation. The IBP

Investigating Commissioner, Attorney Renato G. Cunanan, submitted in due time the results of his investigation. The report dated 07 November 1998, adopted and approved by the IBP Board of Governors in its resolution of 19 June 1999, contained the salient findings of the Investigating Commissioner.5 "We note that inspite of Atty. Orden's repeated declarations which would create the unmistakable impression that he had in fact prepared and completed his client's brief, no such brief was ever submitted to the Supreme Court, either in connection with his Motion for Reconsideration dated March 22, 1996, or his Manifestation of January 11, 1997. "We are convinced that Atty. Amado Orden, despite his avowals has not prepared any such brief. Worse, we are just as convinced that Atty. Orden has displayed a glaring ignorance of procedures and a grossly negligent failure to keep abreast of the latest resolution and circulars of the Supreme Court and the Appellate Court in regard to appeals. To be sure as a practitioner, Atty. Orden ought to have kept himself attuned to the Rules of Court and the latest jurisprudence and rulings of the Supreme Court. Briefly stated, respondent Atty. Orden has not been honest with the Supreme Court. Worse, he has not been honest with his client and worst with himself. "We recommend that Atty. Amado D. Orden be suspended from the practice of law for at least one year."6 It does look apparent that Attorney Amado D. Orden has fallen far too short of the circumspection required of every member of the Bar. A counsel must constantly keep in mind that his actions or omissions, even malfeasance or nonfeasance, would be binding on his client.7 Verily, a lawyer owes to the client the exercise of utmost prudence and capability in that representation.8 Lawyers are expected to be acquainted with the rudiments of law and legal procedure, and anyone who deals with them has the right to expect not just a good amount of professional learning and competence but also a whole-hearted fealty to the client's cause.9 Upon appeal, the appellate court, not being in a position to hear firsthand the testimony of the parties, can only place great reliance on the briefs and memoranda of parties. The failure to submit these pleadings could very well be fatal to the cause of a client. Respondent's failure to submit the brief to the appellate court within the reglementary period entails disciplinary action.10 Not only is it a dereliction of duty to his client but also to the court as well.11 His shortcomings before the Court of Appeals is, in itself, already deplorable but to repeat that same infraction before this Court constitutes negligence of contumacious proportions. It is even worse that respondent has attempted to mitigate his liability by professing ignorance of appellate procedures, a matter that, too, is inexcusable. Regrettably, the Court is constrained to affirm the aptly considered recommendation of the IBP on the matter.12 WHEREFORE , this Court so finds respondent Atty. Amado Orden remiss in his sworn duty to his client, and to the Bar and the Bench as well, and imposes upon him the penalty of SUSPENSION from the practice of law for a period of one (1) year immediately effective upon his receipt of this judgment. Let a copy of this decision be entered in the personal records of respondent as an attorney and as a member of the Bar, and furnish the Bar Confidant, the Integrated Bar of the

27

Philippines, and the Court Administrator for circulation to all courts in the country. SO ORDERED. Melo, (Chairman), Panganiban, Purisima, and GonzagaReyes, JJ., concur.mis

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9 G.R. No. 91133. March 22, 1993.

(220 SCRA 274, 1993)

ROMINA M. SUAREZ, petitioner, vs. THE COURT OF APPEALS, PRESIDING JUDGE OF THE REGIONAL TRIAL COURT, BRANCH LXI, ANGELES CITY, respondents. Ranel L. Trinidad for petitioner. The Solicitor General for public respondents. SYLLABUS 1. LEGAL ETHICS; LAWYERS; OBLIGATIONS. The legal difficulty petitioner finds herself in is imputable to the negligence of her de parte counsel, Atty. Vicente San Luis, in abandoning the conduct of the case without formally withdrawing or at least informing petitioner that he would be permanently staying in the U.S.A. so that petitioner could appoint another counsel. A lawyer owes absolute fidelity to the cause of his client. He owes his client full devotion to his genuine interests, warm zeal in the maintenance and defense of his rights, and the exertion of his utmost learning and ability (Canon 17, Code of Professional Responsibility; Agpalo's Legal Ethics, p. 157). A lawyer is required to exercise ordinary diligence or that reasonable degree of care and skill having reference to the character of the business he undertakes to do (Agpalo's Legal Ethics, p. 174). Among his duties to his client is attending to the hearings of the case (People's Homesite and Housing Corp. vs. Tiongco, 12 SCRA 471 [1964]; Agpalo's Legal Ethics, p. 175). 2. ID.; ID.; RIGHT OF CLIENTS; NOT PROTECTED IN CASE AT BAR. A client may reasonably expect that his counsel will make good his representations (Agpalo's Legal Ethics, p. 169) and has the right to expect that his lawyer will protect his interests during the trial of his case. For the general employment of an attorney to prosecute or defend a cause or proceeding ordinarily vests in a plaintiff's attorney the implied authority to take all steps or do all acts necessary or incidental to the regular and orderly prosecution or management of the suit, and in a defendant's attorney the power to take such steps as he deems necessary to defend the suit and protect the interests of the defendant (7A C.J.S. 315). Petitioner, therefore, had the right to expect that her counsel de parte, Atty. San Luis, would protect her interests during the trial of the cases. However, as aforestated, Atty. San Luis failed to discharge his duties as counsel for petitioner. 3. ID.; ID.; CLIENT BOUND BY HIS COUNSEL'S NEGLIGENCE; EXCEPTION. As a general rule, a client is bound by his counsel's conduct, negligence, and mistakes in handling the case during the trial (Fernandez vs. Tan Ting Tic, 1 SCRA 1138 [1961]; Rivera vs. Vda. de Cruz, 26 SCRA 58 [1968]; Don Lino Gutierrez & Sons, Inc. vs. Court of Appeals, 61 SCRA 87 [1974]). However, the rule admits of exceptions. A new trial may be granted where the incompetency of counsel is so great that the defendant is prejudiced and prevented from fairly presenting his defense (People vs. Manzanilla, 43 Phil. 167 [1922]; 16 C.J. 1145; 24 C.J.S. 68). Where a case is not tried on the merits because of the negligence of counsel rather than the plaintiff, the case may be dismissed but, in the interest of justice, without prejudice to the filing of a new action (De Los Reyes vs. Capule, 102 Phil. 464 [1957]). 4. ID.; ID.; ID.; ID.; CASE AT BAR. Petitioner was deprived of her right to present and prove her defense due to the negligence of her counsel. The appearance of a certain Atty. Buen Zamar is of no moment as there was no client-

attorney relationship between him and petitioner who did not engage his services to represent her in said cases. The fact that notices of the promulgation of judgment were sent to petitioner at her address of record produced no legal consequence because notice to a party is not effective notice in law (Elli vs. Ditan, 5 SCRA 503 [1962]; Mata vs. Rita Legarda, Inc., 7 SCRA 227 [1963]). We rule, therefore, that under the facts of the case, petitioner was deprived of due process of law. It is the better part of judicial wisdom and prudence to accord to petitioner the opportunity to prove her defense. It is abhorrent to the judicial conscience to consign petitioner to the ordeals of imprisonment without affording her full opportunity to present her evidence including, of course, the assistance of competent counselling. DECISION MELO, J p: Before is a petition for review on certiorari seeking to set aside the decision of the Court of Appeals in CA-G.R. SP No. 17488 and to direct respondent trial court to reopen the joint trial of Criminal Cases No. 7284 to 7296, 7302-7303, and 7650. It appears from the record that on May 7, 1985 petitioner was charged in Criminal Cases No. 7284-7296, and No. 73027303 before the Regional Trial Court, Branch 61, Angeles City with violation of Batas Pambansa Blg. 22, the Bouncing Check Law. On August 21, 1985, petitioner was again charged in the same court with the same offense in Criminal Case No. 7650. All these cases were consolidated for trial and decision in Branch LXI of the Regional Trial Court of the Third Judicial Region in Angeles City, at that time presided over by the Honorable Ramon C. Tuazon who has since retired. At the arraignment, petitioner pleaded "not guilty" to all the informations against her. She then posted bail in all the cases and was granted provisional liberty. At the trial of the cases, petitioner did not appear in court despite notices sent to her residence as appearing on the record and to her bondsmen. Her counsel de parte, Atty. Vicente San Luis appeared in her behalf during the time the prosecution was presenting its evidence up to October 20, 1987 when it was the turn of the defense to present its evidence. However, the hearing on said date was postponed because of the absence of the private prosecutor and the continuation of the hearing was reset to November 19, 1987. On said date, Atty. Buen Zamar entered a special appearance for Atty. San Luis as counsel for the accused without, however, the consent of petitioner. From said date Atty. San Luis Did not appear in court as he had left for the United States of America and has not returned since then, without informing petitioner or withdrawing his appearance. Atty. Zamar, together with the prosecution, asked for deferment of the hearing that day as he was not conversant with the facts of the case, and the continuation of hearing was reset to January 6, 1988, on which date Atty. Zamar again asked for postponement and the hearing was reset to February 3, 1988. However, also on January 6, 1988, the trial court issued an order forfeiting in favor of the government the bonds posted by petitioner for her provisional liberty in view of the failure of her bondsmen to produce her at the scheduled hearing of the cases against her. It appears that sometime in June, 1987, petitioner got married and lived with her husband at their conjugal dwelling at the Villa Dolores Subdivision, Angeles City. On May 17, 1988, the trial court issued a notice in Criminal Case No. 7650 setting the promulgation of its decision on May 13, 1988 and said notice was sent by registered mail to

29

Atty. San Luis and the petitioner's bondsmen and served by personal service by the court's process server at her address of record upon her mother who informed the process server that petitioner had been out of the country for almost two years already. Her mother did not forward the notice to petitioner. On May 31, 1988, when Criminal Case No. 7650 was called for promulgation of judgment, the trial court appointed Atty. Augusto Panlilio as counsel de oficio to represent the absent petitioner. The judgment of conviction of petitioner was promulgated by the reading of the decision in open court by the Branch Clerk of Court and furnishing the parties through their respective counsel present in court with copies of the decision. Likewise, copies of the decision were sent by registered mail to petitioner's bondsmen, her attorney of record, and petitioner herself at her address of record, 1799 Burgos St., Angeles City. On June 14, 1988, the trial court issued notices to all the parties setting the promulgation of its joint decision in Criminal Cases No. 7284-7296 and 7302-7303 for June 29, 1988. Copies of the notices were sent by registered mail to petitioner's counsel of record, Atty. Vicente San Luis, and to her bondsmen. Copy of the notice was served upon petitioner by personal service at her given address, which notice was received by her mother who again informed the process server that petitioner was out of the country. On June 29, 1988, promulgation of the joint judgment of conviction of petitioner in the aforementioned was made by the Branch Clerk of Court who read the decision. Petitioner was represented by Atty. Buen Zamar at the reading of sentence. On December 31, 1988, petitioner was arrested and detained in the local jail of Angeles City. On February 6, 1989, petitioner, now represented by a new counsel de parte filed three motions, namely: (1) for temporary release as she was pregnant and allegedly suffering from a heart ailment; (2) to set aside promulgation of judgment (p. 44, Rollo); and (3) to re-open trial (p. 50 Rollo). The prosecution opposed the motions The trial court then denied the motions to set aside judgment and to reopen trial, but with regard to the motion for temporary release, directed that "should a medical examination or confinement in the hospital be necessary, the court may allow the accused under guard to consult a physician or enter a hospital for medical treatment." Thereupon, petitioner filed a petition for mandamus with this Court which was later docketed as G.R. No. 87564-79. The petition was, however, per our resolution dated April 24, 1989, referred to the Court of Appeals where the petition docketed as CA. G.R. SP No. 17488. On September 26 1989, the Court of Appeals promulgated its decision dismissing the petition. Hence, the instant petition where petitioner assigns the following alleged errors of the Court of Appeals: I. THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS CRIMINALLY LIABLE FOR THE CHECKS SUBJECT OF CRIMINAL CASES NOS. 7284, 7285 AND 7303 EVEN IF SHE WAS NEITHER THE DRAWER NOR MAKER OF THE SAME; II. THE APPELLATE COURT ERRED IN HOLDING THAT THERE WERE VALID PROMULGATIONS OF JUDGMENTS IN THE SAID CASES;

III. THE APPELLATE COURT ERRED IN HOLDING THAT PAYMENT OF THE OBLIGATIONS CONTAINED IN THE CHECKS SUBJECT OF THE CRIMINAL CASES WOULD (NOT) MERIT LESS SEVERE PENALTIES IF NOT THE EXTINGUISHMENT OF THE ENTIRE CRIMINAL LIABILITY; IV. THE APPELLATE COURT ERRED IN HOLDING THAT NO SUFFICIENT GROUNDS EXIST TO WARRANT THE REOPENING OF THE JOINT TRIAL OF THE CASES SUBJECT OF THE PETITION. (pp. 7-8, Rollo.) The resolution of this case hinges on the issue of whether or not petitioner was denied her day in court. The legal difficulty petitioner finds herself in is imputable to the negligence of her de parte counsel, Atty. Vicente San Luis, in abandoning the conduct of the case without formally withdrawing or at least informing petitioner that he would be permanently staying in the U.S.A. so that petitioner could appoint another counsel. A lawyer owes absolute fidelity to the cause of his client. He owes his client full devotion to his genuine interests, warm zeal in the maintenance and defense of his rights, and the exertion of his utmost learning and ability (Canon 17, Code of Professional Responsibility; Agpalo's Legal Ethics, p. 157). A lawyer is required to exercise ordinary diligence or that reasonable degree of care and skill having reference to the character of the business he undertakes to do (Agpalo's Legal Ethics, p. 174). Among his duties to his client is attending to the hearings of the case (People's Homesite and Housing Corp. vs. Tiongco, 12 SCRA 471 [1964]; Agpalo's Legal Ethics, p. 175). Atty. Vicente San Luis, petitioner's counsel de parte in the afore-stated cases, was unquestionably negligent in the performance of his duties to his client, herein petitioner. His negligence consisted in his failure to attend to the hearings of the case, his failure to advise petitioner that he was going to stay abroad so that the petitioner could have secured the services of another counsel, and his failure to withdraw properly as counsel for petitioner. This is a clear case where a party was totally abandoned by her counsel. A client may reasonably expect that his counsel will make good his representations (Agpalo's Legal Ethics, p. 169) and has the right to expect that his lawyer will protect his interests during the trial of his case. For the general employment of an attorney to prosecute or defend a cause or proceeding ordinarily vests in a plaintiffs attorney the implied authority to take all steps or do all acts necessary or incidental to the regular and orderly prosecution or management of the suit, and in a defendant's attorney the power to take such steps as he deems necessary to defend the suit and protect the interests of the defendant (74 C.J.S. 315). Petitioner, therefore, had the right to expect that her counsel de parte, Atty. San Luis, would protect her interests during the trial of the cases. However, as aforestated, Atty. San Luis failed to discharged his duties as counsel for petitioner. As a general rule, a client is bound by his counsel's conduct, negligence, and mistakes in handling the case during the trial (Fernandez vs. Tan Ting Tic, 1 SCRA 1138 [1961]; Rivera vs. Vda. de Cruz, 26 SCRA 58 [1968]; Don Lino Gutierrez & Sons, Inc. vs. Court of Appeals, 61 SCRA 87 [1974]. However the rule admits exceptions. A new trial may be granted where the incompetency of counsel is so great that the defendant is prejudiced and prevented from fairly presenting his defense (People vs. Manzanilla, 43 Phil. 167

30

[1922]; 16 C.J. 1145; 24 C.J.S. 68). Where a case is not tried on the merits because of the negligence of counsel rather than the plaintiff, the case may be dismissed but, in the interest of justice, without prejudice to the filing of a new action (De Los Reyes vs. Capule, 102 Phil. 464 [1957]. Clearly, petitioner was deprived of her right to present and prove her defense due to the negligence of her counsel. The appearance of a certain Atty. Buen Zamar is of no comment as there was no client-attorney relationship between him and petitioner who did not engage his services to represent her is said cases. The fact that notices of the promulgation of judgment were sent to petitioner at her address of record produced no legal consequence because notice to a party is not effective notice in law (Elli vs. Ditan, 5 SCRA 503 [1962]; Mata vs. Rita Legarda, Inc. 7 SCRA 227 [1963]). We rule, therefore, that under the facts of the case, petitioner was deprived of due process of law. It is the better part of judicial wisdom and prudence to accord the petitioner the opportunity to prove her defense. It is abhorrent to the judicial conscience to consign petitioner to the ordeals of imprisonment without affording her full opportunity to present her evidence including, of course, the assistance of competent counselling. WHEREFORE, the decision of the Court of Appeals in CA G.R. SP No. 17488, the decision of the trial court in the subject criminal cases, and the order of the trial court denying petitioner's motion to set aside the promulgation of judgment and to reopen the cases are hereby SET ASIDE. The trial court is hereby DIRECTED to reopen Criminal Cases No. 7284-7296, 7302-7303, and 7650 for the reception of evidence for the defense. SO ORDERED. Bidin, Davide, Jr. and Romero, JJ., concur.

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10 A.C. No. 3695 February 24, 1992

(206 SCRA 468, 1992)

issued by the lower court, she filed through counsel, Atty. Lim, a motion to declare complainant Gamalinda in contempt of court. Complainant interposed the defense that the area in dispute in Civil Case No. 3827 was different from the area occupied by him. To resolve the issue, the lower court with his agreement, ordered a resurvey of Lot No. 3217. The result of the resurvey showed that contrary to complainant's claim, the lot occupied by him was the very same land involved in Civil Case No. 3827. Accordingly, the lower court declared complainant in contempt in an order dated July 24, 1986 which was affirmed on appeal by the Court of Appeals in a decision rendered on March 21, 1998. 8 Considering that Tiburcio, Cabatino and Mateo are tenants of Salud Balot and complainant is the successor-in-interest of the heirs of Apolinario Gamalinda, the defendants in Civil Case No. 3827, it is clearly erroneous for complainant to claim that neither he nor Tiburcio, Cabatino and Mateo had anything to do with said civil case. Being privies to the parties, they are necessarily bound by the orders rendered in said case. On October 12, 1987, the Court of Appeals rendered a decision, affirming in toto the judgment of the lower court in Civil Case No. 3827. 9 After the appellate court's decision had become final, Atty. Lim moved for the execution of the affirmed judgment, 10 and when the writ of execution was returned unsatisfied, filed an "Urgent Motion to Require Domingo Gamalinda to Surrender TCT 186299 to the Clerk of Court and to Authorize the Latter to Execute Reconveyance of Lot 3217-A in Favor of Plaintiffs." 11 That motion was granted by the lower court, but complainant refused to surrender the Owner's Copy of TCT No. 186299, prompting Atty. Lim to file the questioned "Motion to Declare Owner's Copy of TCT 186299 Null and Void," 12 which the lower court granted on July 31, 1989. It is clear from the foregoing that the questioned acts of Atty. Lim were all done in line with his duty to prosecute his clients' cause in Civil Case No. 3827. The first motion was filed to protect his clients' possessory rights over the property in dispute while the second motion was made to procure execution of the decision in Civil Case No. 3827. A lawyer owes fidelity to the cause of his client and must be mindful of the trust and confidence reposed in him. 13 He shall serve his client with competence and diligence, 14 and his duty of entire devotion to his client's cause not only requires, but entitles him to employ every honorable means to secure for the client what is justly due him or to present every defense provided by law to enable the latter's cause to succeed. 15 An attorney's duty to safeguard the client's interests commences from his retainer until the effective release from the case 16 or the final disposition of the whole subject matter of the litigation. 17 During that period, he is expected to take such reasonable steps and such ordinary care as his client's interests may require. This is precisely what Atty. Lim was doing when he filed the motions complained of. He should be commended, not condemned, for diligently and competently performing his duties as an attorney; With respect to the complainant's contention that the Deed of Sale of Unregistered Land relied upon by the lower and appellate courts in Civil Case No. 3827 is a forged or fake instrument, suffice it to say that this is a matter that should have been litigated in said case instead of being raised for the first time in these proceedings. In any case, there being

DOMINGO C. GAMALINDA, complainant, vs. AYTYS. FERNANDO ALCANTARA and JOSELITO LIM, respondents. In his verified letter-complaint dated June 19, 1991, 1 complainant Domingo Gamalinda charges retired Judge Fernando Alcantara and Atty. Joselito Lim with grave abuse of their profession ("labis nilang pag-abuso sa kanilang propesyon"), deception, threats, dishonoring and injuring the reputation of said complainant and bringing about the loss of his land. The Court finds the charges to be without basis and accordingly dismisses them. The administrative complaint against retired Judge Fernando Alcantara is a futile attempt to resurrect the charges filed against him in Adm. Matter No. MTJ-90-494, which were dismissed by this Court in its resolution of September 8, 1988 for having become moot and academic. Adm. Matter No. MTJ-90-494 was filed only on July 22, 1987, or five (5) months after the respondent judge's retirement from the service on February 3, 1987. No motion for reconsideration having been seasonably filed by complainant, that resolution has become final and executory. It serves as a bar to a relitigation of the same charges against respondent judge. 2 That those charges are now being brought against respondent judge in his capacity as an attorney does not help the cause of complainant, for the change in the form of action or remedy pursued does not bar the application of the rule of res judicata. 3 On the other hand, the record establishes that Atty. Lim was merely performing his duty as counsel for the plaintiffs in Civil Case No. 3827 when he did what is now complained of. 4 In Civil Case No. 3827 of the Regional Trial Court of Tarlac, Branch LXIII, Salud Balot and Felicidad Balot had sued the heirs of Apolinario Gamalinda 5 for reconveyance, with damages, of the eastern half of Lot No. 3217 of the cadastral survey of Victoria, Tarlac, which was allegedly inadvertently included in the original certificate of title of Apolinario Gamalinda. In the course of the trial, plaintiffs were able to secure a writ of preliminary injunction against the "defendants, their agents, representatives or other persons acting in their behalf, ordering them to desist from threshing and carting away the palay harvest on Lot No. 3217 of the Cadastral Survey of Victoria, . . . until further order of this Court. . . ." 6 This injunction was made permanent in the decision of the lower court rendered on July 26, 1977 in favor of the plaintiffs. Pending appeal to the Court of Appeals, complainant herein entered a portion of the area in dispute, in the belief that the whole of Lot No. 3217 belonged to him by virtue of a Deed of Extrajudicial Settlement with Quitclaim 7 executed in his favor by the heirs of Apolinario Gamalinda on May 6, 1985. It must be noted that at that time title to Lot No. 3217 was still in the name of Apolinario Gamalinda. Thus, when Maximiano Tiburcio, Protacio Cabatino and Maximo Mateo, tenants of Salud Balot, entered the portion being cultivated by complainant, the latter reported the incident to the police. From Salud Balot's viewpoint, it was complainant who intruded into her land. Relying therefore on the injunction

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no showing that Atty. Lim was aware of any defect in that deed, the charge of deception against him will not lie. Absent, too, is any showing that Atty. Lim had anything to do with the preparation of the criminal information, and for the same reason he cannot be called to account for it. ACCORDINGLY, the administrative charges against retired Judge Fernando Alcantara and Atty. Joselito Lim are DISMISSED for lack of merit. SO ORDERED. Cruz, Grio-Aquino and Medialdea, JJ., concur.

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11 G.R. No. L-27654 February 18, 1970 1970)

(31 SCRA 562,

to its attention without discrimination, and will purge itself of those unconstitutional and obnoxious "lack of merit" or "denied resolutions. (Emphasis supplied) Atty. Almacen's statement that ... our own Supreme Court is composed of men who are calloused to our pleas of [sic] justice, who ignore their own applicable decisions and commit culpable violations of the Constitution with impunity was quoted by columnist Vicente Albano Pacis in the issue of the Manila Chronicle of September 28, 1967. In connection therewith, Pacis commented that Atty. Almacen had "accused the high tribunal of offenses so serious that the Court must clear itself," and that "his charge is one of the constitutional bases for impeachment." The genesis of this unfortunate incident was a civil case entitled Virginia Y. Yaptinchay vs. Antonio H. Calero,1 in which Atty. Almacen was counsel for the defendant. The trial court, after due hearing, rendered judgment against his client. On June 15, 1966 Atty. Almacen received a copy of the decision. Twenty days later, or on July 5, 1966, he moved for its reconsideration. He served on the adverse counsel a copy of the motion, but did not notify the latter of the time and place of hearing on said motion. Meanwhile, on July 18, 1966, the plaintiff moved for execution of the judgment. For "lack of proof of service," the trial court denied both motions. To prove that he did serve on the adverse party a copy of his first motion for reconsideration, Atty. Almacen filed on August 17, 1966 a second motion for reconsideration to which he attached the required registry return card. This second motion for reconsideration, however, was ordered withdrawn by the trial court on August 30, 1966, upon verbal motion of Atty. Almacen himself, who, earlier, that is, on August 22, 1966, had already perfected the appeal. Because the plaintiff interposed no objection to the record on appeal and appeal bond, the trial court elevated the case to the Court of Appeals. But the Court of Appeals, on the authority of this Court's decision in Manila Surety & Fidelity Co., Inc. vs. Batu Construction & Co., L-16636, June 24, 1965, dismissed the appeal, in the following words: Upon consideration of the motion dated March 27, 1967, filed by plaintiff-appellee praying that the appeal be dismissed, and of the opposition thereto filed by defendant-appellant; the Court RESOLVED TO DISMISS, as it hereby dismisses, the appeal, for the reason that the motion for reconsideration dated July 5, 1966 (pp. 90-113, printed record on appeal) does not contain a notice of time and place of hearing thereof and is, therefore, a useless piece of paper (Manila Surety & Fidelity Co., Inc. vs. Batu Construction & Co., G.R. No. L-16636, June 24, 1965), which did not interrupt the running of the period to appeal, and, consequently, the appeal was perfected out of time. Atty. Almacen moved to reconsider this resolution, urging that Manila Surety & Fidelity Co. is not decisive. At the same time he filed a pleading entitled "Latest decision of the Supreme Court in Support of Motion for Reconsideration," citing Republic of the Philippines vs. Gregorio A. Venturanza, L-20417, decided by this Court on May 30, 1966, as the applicable case. Again, the Court of Appeals denied the motion for reconsideration, thus: Before this Court for resolution are the motion dated May 9, 1967 and the supplement thereto of the same date filed by defendant- appellant, praying for reconsideration of the

IN THE MATTER OF PROCEEDINGS FOR DISCIPLINARY ACTION AGAINST ATTY. VICENTE RAUL ALMACEN In L27654, ANTONIO H. CALERO, vs. VIRGINIA Y. YAPTINCHAY. RESOLUTION CASTRO, J.: Before us is Atty. Vicente Raul Almacen's "Petition to Surrender Lawyer's Certificate of Title," filed on September 25, 1967, in protest against what he therein asserts is "a great injustice committed against his client by this Supreme Court." He indicts this Court, in his own phrase, as a tribunal "peopled by men who are calloused to our pleas for justice, who ignore without reasons their own applicable decisions and commit culpable violations of the Constitution with impunity." His client's he continues, who was deeply aggrieved by this Court's "unjust judgment," has become "one of the sacrificial victims before the altar of hypocrisy." In the same breath that he alludes to the classic symbol of justice, he ridicules the members of this Court, saying "that justice as administered by the present members of the Supreme Court is not only blind, but also deaf and dumb." He then vows to argue the cause of his client "in the people's forum," so that "the people may know of the silent injustice's committed by this Court," and that "whatever mistakes, wrongs and injustices that were committed must never be repeated." He ends his petition with a prayer that ... a resolution issue ordering the Clerk of Court to receive the certificate of the undersigned attorney and counsellor-atlaw IN TRUST with reservation that at any time in the future and in the event we regain our faith and confidence, we may retrieve our title to assume the practice of the noblest profession. He reiterated and disclosed to the press the contents of the aforementioned petition. Thus, on September 26, 1967, the Manila Times published statements attributed to him, as follows: Vicente Raul Almacen, in an unprecedented petition, said he did it to expose the tribunal's "unconstitutional and obnoxious" practice of arbitrarily denying petitions or appeals without any reason. Because of the tribunal's "short-cut justice," Almacen deplored, his client was condemned to pay P120,000, without knowing why he lost the case. xxx xxx xxx There is no use continuing his law practice, Almacen said in this petition, "where our Supreme Court is composed of men who are calloused to our pleas for justice, who ignore without reason their own applicable decisions and commit culpable violations of the Constitution with impunity. xxx xxx xxx He expressed the hope that by divesting himself of his title by which he earns his living, the present members of the Supreme Court "will become responsive to all cases brought

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resolution of May 8, 1967, dismissing the appeal. Appellant contends that there are some important distinctions between this case and that of Manila Surety and Fidelity Co., Inc. vs. Batu Construction & Co., G.R. No. L16636, June 24, 1965, relied upon by this Court in its resolution of May 8, 1967. Appellant further states that in the latest case, Republic vs. Venturanza, L-20417, May 30, 1966, decided by the Supreme Court concerning the question raised by appellant's motion, the ruling is contrary to the doctrine laid down in the Manila Surety & Fidelity Co., Inc. case. There is no substantial distinction between this case and that of Manila Surety & Fidelity Co. In the case of Republic vs. Venturanza, the resolution denying the motion to dismiss the appeal, based on grounds similar to those raised herein was issued on November 26, 1962, which was much earlier than the date of promulgation of the decision in the Manila Surety Case, which was June 24, 1965. Further, the resolution in the Venturanza case was interlocutory and the Supreme Court issued it "without prejudice to appellee's restoring the point in the brief." In the main decision in said case (Rep. vs. Venturanza the Supreme Court passed upon the issue sub silencio presumably because of its prior decisions contrary to the resolution of November 26, 1962, one of which is that in the Manila Surety and Fidelity case. Therefore Republic vs. Venturanza is no authority on the matter in issue. Atty. Almacen then appealed to this Court by certiorari. We refused to take the case, and by minute resolution denied the appeal. Denied shortly thereafter was his motion for reconsideration as well as his petition for leave to file a second motion for reconsideration and for extension of time. Entry of judgment was made on September 8, 1967. Hence, the second motion for reconsideration filed by him after the Said date was ordered expunged from the records. It was at this juncture that Atty. Almacen gave vent to his disappointment by filing his "Petition to Surrender Lawyer's Certificate of Title," already adverted to a pleading that is interspersed from beginning to end with the insolent contemptuous, grossly disrespectful and derogatory remarks hereinbefore reproduced, against this Court as well as its individual members, a behavior that is as unprecedented as it is unprofessional. Nonetheless we decided by resolution dated September 28, 1967 to withhold action on his petition until he shall have actually surrendered his certificate. Patiently, we waited for him to make good his proffer. No word came from him. So he was reminded to turn over his certificate, which he had earlier vociferously offered to surrender, so that this Court could act on his petition. To said reminder he manifested "that he has no pending petition in connection with Case G.R. No. L-27654, Calero vs. Yaptinchay, said case is now final and executory;" that this Court's September 28, 1967 resolution did not require him to do either a positive or negative act; and that since his offer was not accepted, he "chose to pursue the negative act." In the exercise of its inherent power to discipline a member of the bar for contumely and gross misconduct, this Court on November 17, 1967 resolved to require Atty. Almacen to show cause "why no disciplinary action should be taken against him." Denying the charges contained in the November 17 resolution, he asked for permission "to give reasons and cause why no disciplinary action should be taken against him ... in an open and public hearing." This

Court resolved (on December 7) "to require Atty. Almacen to state, within five days from notice hereof, his reasons for such request, otherwise, oral argument shall be deemed waived and incident submitted for decision." To this resolution he manifested that since this Court is "the complainant, prosecutor and Judge," he preferred to be heard and to answer questions "in person and in an open and public hearing" so that this Court could observe his sincerity and candor. He also asked for leave to file a written explanation "in the event this Court has no time to hear him in person." To give him the ampliest latitude for his defense, he was allowed to file a written explanation and thereafter was heard in oral argument. His written answer, as undignified and cynical as it is unchastened, offers -no apology. Far from being contrite Atty. Almacen unremittingly repeats his jeremiad of lamentations, this time embellishing it with abundant sarcasm and innuendo. Thus: At the start, let me quote passages from the Holy Bible, Chapter 7, St. Matthew: "Do not judge, that you may not be judged. For with what judgment you judge, you shall be judged, and with what measure you measure, it shall be measured to you. But why dost thou see the speck in thy brother's eye, and yet dost not consider the beam in thy own eye? Or how can thou say to thy brother, "Let me cast out the speck from thy eye"; and behold, there is a beam in thy own eye? Thou hypocrite, first cast out the beam from thy own eye, and then thou wilt see clearly to cast out the speck from thy brother's eyes." "Therefore all that you wish men to do to you, even to do you also to them: for this is the Law and the Prophets." xxx xxx xxx Your respondent has no intention of disavowing the statements mentioned in his petition. On the contrary, he refirms the truth of what he stated, compatible with his lawyer's oath that he will do no falsehood, nor consent to the doing of any in court. But he vigorously DENY under oath that the underscored statements contained in the CHARGE are insolent, contemptuous, grossly disrespectful and derogatory to the individual members of the Court; that they tend to bring the entire Court, without justification, into disrepute; and constitute conduct unbecoming of a member of the noble profession of law. xxx xxx xxx Respondent stands four-square that his statement is borne by TRUTH and has been asserted with NO MALICE BEFORE AND AFTER THOUGHT but mainly motivated with the highest interest of justice that in the particular case of our client, the members have shown callousness to our various pleas for JUSTICE, our pleadings will bear us on this matter, ... xxx xxx xxx To all these beggings, supplications, words of humility, appeals for charity, generosity, fairness, understanding, sympathy and above all in the highest interest of JUSTICE, what did we get from this COURT? One word, DENIED, with all its hardiness and insensibility. That was the unfeeling of the Court towards our pleas and prayers, in simple word, it is plain callousness towards our particular case. xxx xxx xxx

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Now that your respondent has the guts to tell the members of the Court that notwithstanding the violation of the Constitution, you remained unpunished, this Court in the reverse order of natural things, is now in the attempt to inflict punishment on your respondent for acts he said in good faith. Did His Honors care to listen to our pleadings and supplications for JUSTICE, CHARITY, GENEROSITY and FAIRNESS? Did His Honors attempt to justify their stubborn denial with any semblance of reason, NEVER. Now that your respondent is given the opportunity to face you, he reiterates the same statement with emphasis, DID YOU? Sir. Is this. the way of life in the Philippines today, that even our own President, said: "the story is current, though nebulous ,is to its truth, it is still being circulated that justice in the Philippines today is not what it is used to be before the war. There are those who have told me frankly and brutally that justice is a commodity, a marketable commodity in the Philippines." xxx xxx xxx We condemn the SIN, not the SINNER. We detest the ACTS, not the ACTOR. We attack the decision of this Court, not the members. ... We were provoked. We were compelled by force of necessity. We were angry but we waited for the finality of the decision. We waited until this Court has performed its duties. We never interfered nor obstruct in the performance of their duties. But in the end, after seeing that the Constitution has placed finality on your judgment against our client and sensing that you have not performed your duties with "circumspection, carefulness, confidence and wisdom", your Respondent rise to claim his God given right to speak the truth and his Constitutional right of free speech. xxx xxx xxx The INJUSTICES which we have attributed to this Court and the further violations we sought to be prevented is impliedly shared by our President. ... . xxx xxx xxx What has been abhored and condemned, are the very things that were applied to us. Recalling Madam Roland's famous apostrophe during the French revolution, "O Liberty, what crimes are committed in thy name", we may dare say, "O JUSTICE, what technicalities are committed in thy name' or more appropriately, 'O JUSTICE, what injustices are committed in thy name." xxx xxx xxx We must admit that this Court is not free from commission of any abuses, but who would correct such abuses considering that yours is a court of last resort. A strong public opinion must be generated so as to curtail these abuses. xxx xxx xxx The phrase, Justice is blind is symbolize in paintings that can be found in all courts and government offices. We have added only two more symbols, that it is also deaf and dumb. Deaf in the sense that no members of this Court has ever heard our cries for charity, generosity, fairness, understanding sympathy and for justice; dumb in the sense, that inspite of our beggings, supplications, and pleadings to give us reasons why our appeal has been DENIED, not one word was spoken or given ... We refer to no human defect or

ailment in the above statement. We only describe the. impersonal state of things and nothing more. xxx xxx xxx As we have stated, we have lost our faith and confidence in the members of this Court and for which reason we offered to surrender our lawyer's certificate, IN TRUST ONLY. Because what has been lost today may be regained tomorrow. As the offer was intended as our self-imposed sacrifice, then we alone may decide as to when we must end our self-sacrifice. If we have to choose between forcing ourselves to have faith and confidence in the members of the Court but disregard our Constitution and to uphold the Constitution and be condemned by the members of this Court, there is no choice, we must uphold the latter. But overlooking, for the nonce, the vituperative chaff which he claims is not intended as a studied disrespect to this Court, let us examine the grain of his grievances. He chafes at the minute resolution denial of his petition for review. We are quite aware of the criticisms2 expressed against this Court's practice of rejecting petitions by minute resolutions. We have been asked to do away with it, to state the facts and the law, and to spell out the reasons for denial. We have given this suggestion very careful thought. For we know the abject frustration of a lawyer who tediously collates the facts and for many weary hours meticulously marshalls his arguments, only to have his efforts rebuffed with a terse unadorned denial. Truth to tell, however, most petitions rejected by this Court are utterly frivolous and ought never to have been lodged at all.3 The rest do exhibit a firstimpression cogency, but fail to, withstand critical scrutiny. By and large, this Court has been generous in giving due course to petitions for certiorari. Be this as it may, were we to accept every case or write a full opinion for every petition we reject, we would be unable to carry out effectively the burden placed upon us by the Constitution. The proper role of the Supreme Court, as Mr. Chief Justice Vinson of the U.S. Supreme Court has defined it, is to decide "only those cases which present questions whose resolutions will have immediate importance beyond the particular facts and parties involved." Pertinent here is the observation of Mr. Justice Frankfurter in Maryland vs. Baltimore Radio Show, 94 L. ed 562, 566: A variety of considerations underlie denials of the writ, and as to the same petition different reasons may read different justices to the same result ... . Since there are these conflicting, and, to the uninformed, even confusing reasons for denying petitions for certiorari, it has been suggested from time to time that the Court indicate its reasons for denial. Practical considerations preclude. In order that the Court may be enabled to discharge its indispensable duties, Congress has placed the control of the Court's business, in effect, within the Court's discretion. During the last three terms the Court disposed of 260, 217, 224 cases, respectively, on their merits. For the same three terms the Court denied, respectively, 1,260, 1,105,1,189 petitions calling for discretionary review. If the Court is to do its work it would not be feasible to give reasons, however brief, for refusing to take these cases. The tune that would be required is prohibitive. Apart from the fact that as already indicated different reasons not infrequently move different members of the Court in concluding that a particular case at a particular time makes review undesirable. Six years ago, in Novino, et al., vs. Court of Appeals, et al.,

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1,21098, May 31, 1963 (60 O.G. 8099), this Court, through the then Chief Justice Cesar Bengzon, articulated its considered view on this matter. There, the petitioners counsel urged that a "lack of merit" resolution violates Section 12 of Article VIII of the Constitution. Said Chief Justice Bengzon: In connection with identical short resolutions, the same question has been raised before; and we held that these "resolutions" are not "decisions" within the above constitutional requirement. They merely hold that the petition for review should not be entertained in view of the provisions of Rule 46 of the Rules of Court; and even ordinary lawyers have all this time so understood it. It should be remembered that a petition to review the decision of the Court of Appeals is not a matter of right, but of sound judicial discretion; and so there is no need to fully explain the court's denial. For one thing, the facts and the law are already mentioned in the Court of Appeals' opinion. By the way, this mode of disposal has as intended helped the Court in alleviating its heavy docket; it was patterned after the practice of the U.S. Supreme Court, wherein petitions for review are often merely ordered "dismissed". We underscore the fact that cases taken to this Court on petitions for certiorari from the Court of Appeals have had the benefit of appellate review. Hence, the need for compelling reasons to buttress such petitions if this Court is to be moved into accepting them. For it is axiomatic that the supervisory jurisdiction vested upon this Court over the Court of Appeals is not intended to give every losing party another hearing. This axiom is implied in sec. 4 of Rule 45 of the Rules of Court which recites: Review of Court of Appeals' decision discretionary.A review is not a matter of right but of sound judicial discretion, and will be granted only when there are special and important reasons therefor. The following, while neither controlling nor fully measuring the court's discretion, indicate the character of reasons which will be considered: (a) When the Court of Appeals has decided a question of substance, not theretofore determined by the Supreme Court, nor has decided it in a way probably not in accord with law or with the applicable decisions of the Supreme Court; (b) When the Court of Appeals has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by the lower court, as to call for the exercise of the power of supervision. Recalling Atty. Almacen's petition for review, we found, upon a thoroughgoing examination of the pleadings. and records, that the Court of Appeals had fully and correctly considered the dismissal of his appeal in the light of the law and applicable decisions of this Court. Far from straying away from the "accepted and usual course of judicial proceedings," it traced the procedural lines etched by this Court in a number of decisions. There was, therefore, no need for this Court to exercise its supervisory power. As a law practitioner who was admitted to the Bar as far back as 1941, Atty. Almacen knew or ought to have known that for a motion for reconsideration to stay the running of the period of appeal, the movant must not only serve a copy of the motion upon the adverse party (which he did), but also notify the adverse party of the time and place of hearing (which admittedly he did not). This rule was unequivocally articulated in Manila Surety & Fidelity vs. Batu Construction

& Co., supra: The written notice referred to evidently is prescribed for motions in general by Rule 15, Sections 4 and 5 (formerly Rule 26), which provides that such notice shall state the time, and place of hearing and shall be served upon all the Parties concerned at least three days in advance. And according to Section 6 of the same Rule no motion shall be acted upon by the court without proof of such notice. Indeed it has been held that in such a case the motion is nothing but a useless piece of paper (Philippine National Bank v. Damasco, I,18638, Feb. 28, 1963; citing Manakil v. Revilla, 42 Phil. 81; Roman Catholic Bishop of Lipa v. Municipality of Unisan, 41 Phil. 866; and Director of Lands vs. Sanz, 45 Phil. 117). The reason is obvious: Unless the movant sets the time and place of hearing the Court would have no way to determine whether that party agrees to or objects to the motion, and if he objects, to hear him on his objection, since the Rules themselves do not fix any period within which he may file his reply or opposition. If Atty. Almacen failed to move the appellate court to review the lower court's judgment, he has only himself to blame. His own negligence caused the forfeiture of the remedy of appeal, which, incidentally, is not a matter of right. To shift away from himself the consequences of his carelessness, he looked for a "whipping boy." But he made sure that he assumed the posture of a martyr, and, in offering to surrender his professional certificate, he took the liberty of vilifying this Court and inflicting his exacerbating rancor on the members thereof. It would thus appear that there is no justification for his scurrilous and scandalous outbursts. Nonetheless we gave this unprecedented act of Atty. Almacen the most circumspect consideration. We know that it is natural for a lawyer to express his dissatisfaction each time he loses what he sanguinely believes to be a meritorious case. That is why lawyers are given 'wide latitude to differ with, and voice their disapproval of, not only the courts' rulings but, also the manner in which they are handed down. Moreover, every citizen has the right to comment upon and criticize the actuations of public officers. This right is not diminished by the fact that the criticism is aimed at a judicial authority,4 or that it is articulated by a lawyer.5 Such right is especially recognized where the criticism concerns a concluded litigation,6 because then the court's actuations are thrown open to public consumption.7 "Our decisions and all our official actions," said the Supreme Court of Nebraska,8 "are public property, and the press and the people have the undoubted right to comment on them, criticize and censure them as they see fit. Judicial officers, like other public servants, must answer for their official actions before the chancery of public opinion." The likely danger of confusing the fury of human reaction to an attack on one's integrity, competence and honesty, with "imminent danger to the administration of justice," is the reason why courts have been loath to inflict punishment on those who assail their actuations.9 This danger lurks especially in such a case as this where those who Sit as members of an entire Court are themselves collectively the aggrieved parties. Courts thus treat with forbearance and restraint a lawyer who vigorously assails their actuations. 10 For courageous and fearless advocates are the strands that weave durability into the tapestry of justice. Hence, as citizen and officer of the court, every lawyer is expected not only to exercise the right, but also to consider it his duty to expose the shortcomings

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and indiscretions of courts and judges. 11 Courts and judges are not sacrosanct. 12 They should and expect critical evaluation of their performance. 13 For like the executive and the legislative branches, the judiciary is rooted in the soil of democratic society, nourished by the periodic appraisal of the citizens whom it is expected to serve. Well-recognized therefore is the right of a lawyer, both as an officer of the court and as a citizen, to criticize in properly respectful terms and through legitimate channels the acts of courts and judges. The reason is that An attorney does not surrender, in assuming the important place accorded to him in the administration of justice, his right as a citizen to criticize the decisions of the courts in a fair and respectful manner, and the independence of the bar, as well as of the judiciary, has always been encouraged by the courts. (In re Ades, 6 F Supp. 487) . Criticism of the courts has, indeed, been an important part of the traditional work of the bar. In the prosecution of appeals, he points out the errors of lower courts. In written for law journals he dissects with detachment the doctrinal pronouncements of courts and fearlessly lays bare for -all to see that flaws and inconsistence" of the doctrines (Hill v. Lyman, 126 NYS 2d 286). As aptly stated by Chief Justice Sharswood in Ex Parte Steinman, 40 Am. Rep. 641: No class of the community ought to be allowed freer scope in the expansion or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities for observing and forming a correct judgment. They are in constant attendance on the courts. ... To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood, by the judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained. ... . Hence, as a citizen and as Officer of the court a lawyer is expected not only to exercise the right, but also to consider it his duty to avail of such right. No law may abridge this right. Nor is he "professionally answerable for a scrutiny into the official conduct of the judges, which would not expose him to legal animadversion as a citizen." (Case of Austin, 28 Am. Dee. 657, 665). Above all others, the members of the bar have the beat Opportunity to become conversant with the character and efficiency of our judges. No class is less likely to abuse the privilege, as no other class has as great an interest in the preservation of an able and upright bench. (State Board of Examiners in Law v. Hart, 116 N.W. 212, 216) To curtail the right of a lawyer to be critical of the foibles of courts and judges is to seal the lips of those in the best position to give advice and who might consider it their duty to speak disparagingly. "Under such a rule," so far as the bar is concerned, "the merits of a sitting judge may be rehearsed, but as to his demerits there must be profound silence." (State v. Circuit Court, 72 N.W. 196) But it is the cardinal condition of all such criticism that it shall be bona fide, and shall not spill over the walls of decency and propriety. A wide chasm exists between fair criticism, on the One hand, and abuse and slander of courts and the judges thereof, on the other. Intemperate and unfair criticism is a gross violation of the duty of respect to courts. It is Such a misconduct that subjects a lawyer to disciplinary action. For, membership in the Bar imposes upon a person obligations and duties which are not mere flux and ferment. His investiture into the legal profession places upon his shoulders no burden more basic, more exacting and more imperative than that of respectful behavior toward the courts. He vows solemnly to conduct himself "with all good fidelity ... to the courts; 14 and the Rules of Court constantly remind him "to observe and maintain the respect due to courts of justice and judicial officers." 15 The first canon of legal ethics enjoins him "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." As Mr. Justice Field puts it: ... the obligation which attorneys impliedly assume, if they do not by express declaration take upon themselves, when they are admitted to the Bar, is not merely to be obedient to the Constitution and laws, but to maintain at all times the respect due to courts of justice and judicial officers. This obligation is not discharged by merely observing the rules of courteous demeanor in open court, but includes abstaining out of court from all insulting language and offensive conduct toward judges personally for their judicial acts. (Bradley, v. Fisher, 20 Law. 4d. 647, 652) The lawyer's duty to render respectful subordination to the courts is essential to the orderly administration of justice. Hence, in the assertion of their clients' rights, lawyers even those gifted with superior intellect are enjoined to rein up their tempers. The counsel in any case may or may not be an abler or more learned lawyer than the judge, and it may tax his patience and temper to submit to rulings which he regards as incorrect, but discipline and self-respect are as necessary to the orderly administration of justice as they are to the effectiveness of an army. The decisions of the judge must be obeyed, because he is the tribunal appointed to decide, and the bar should at all times be the foremost in rendering respectful submission. (In Re Scouten, 40 Atl. 481) We concede that a lawyer may think highly of his intellectual endowment That is his privilege. And he may suffer frustration at what he feels is others' lack of it. That is his misfortune. Some such frame of mind, however, should not be allowed to harden into a belief that he may attack a court's decision in words calculated to jettison the timehonored aphorism that courts are the temples of right. (Per Justice Sanchez in Rheem of the Philippines vs. Ferrer, L22979. June 26, 1967) In his relations with the courts, a lawyer may not divide his personality so as to be an attorney at one time and a mere citizen at another. Thus, statements made by an attorney in private conversations or communications 16 or in the course of a political, campaign, 17 if couched in insulting language as to bring into scorn and disrepute the administration of justice, may subject the attorney to disciplinary action. Of fundamental pertinence at this juncture is an examination of relevant parallel precedents. 1. Admitting that a "judge as a public official is neither sacrosanct nor immune to public criticism of his conduct in office," the Supreme Court of Florida in State v. Calhoon, 102 So. 2d 604, 608, nevertheless declared that "any conduct of a lawyer which brings into scorn and disrepute the administration of justice demands condemnation and the

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application of appropriate penalties," adding that: It would be contrary to, every democratic theory to hold that a judge or a court is beyond bona fide comments and criticisms which do not exceed the bounds of decency and truth or which are not aimed at. the destruction of public confidence in the judicial system as such. However, when the likely impairment of the administration of justice the direct product of false and scandalous accusations then the rule is otherwise. 2. In In Re Glenn, 130 N.W. 2d 672, an attorney was suspended for putting out and circulating a leaflet entitled "JUSTICE??? IN OTUMWA," which accused a municipal judge of having committed judicial error, of being so prejudiced as to deny his clients a fair trial on appeal and of being subject to the control of a group of city officials. As a prefatory statement he wrote: "They say that Justice is BLIND, but it took Municipal Judge Willard to prove that it is also DEAF and DUMB!" The court did not hesitate to find that the leaflet went much further than the accused, as a lawyer, had a right to do. The entire publication evidences a desire on the part Of the accused to belittle and besmirch the court and to bring it into disrepute with the general public. 3. In In Re Humphrey, 163 Pac. 60, the Supreme Court of California affirmed the two-year suspension of an attorney who published a circular assailing a judge who at that time was a candidate for re-election to a judicial office. The circular which referred to two decisions of the judge concluded with a statement that the judge "used his judicial office to enable -said bank to keep that money." Said the court: We are aware that there is a line of authorities which place no limit to the criticism members of the bar may make regarding the capacity, impartiality, or integrity of the courts, even though it extends to the deliberate publication by the attorney capable of correct reasoning of baseless insinuations against the intelligence and integrity of the highest courts. See State Board, etc. v. Hart. 116 N.W. 212, 17 LRA (N.S.) 585, 15 Ann Cas 197 and note: Ex parte Steinman 95 Pac. 220, 40 Am. Rep. 637. In the first case mentioned it was observed, for instance: "It may be (although we do not so decide) that a libelous publication by an attorney, directed against a judicial officer, could be so vile and of such a nature as to justify the disbarment of its author." Yet the false charges made by an attorney in that case were of graver character than those made by the respondent here. But, in our view, the better rule is that which requires of those who are permitted to enjoy the privilege of practicing law the strictest observance at all times of the principles of truth, honesty and fairness, especially in their criticism of the courts, to the end that the public confidence in the due administration of justice be upheld, and the dignity and usefulness of the courts be maintained. In re Collins, 81 Pac. 220. 4. In People ex rel Chicago Bar Asso. v. Metzen, 123 N.E. 734, an attorney, representing a woman who had been granted a divorce, attacked the judge who set aside the decree on bill of review. He wrote the judge a threatening letter and gave the press the story of a proposed libel suit against the judge and others. The letter began: Unless the record in In re Petersen v. Petersen is cleared up

so that my name is protected from the libel, lies, and perjury committed in the cases involved, I shall be compelled to resort to such drastic action as the law allows and the case warrants. Further, he said: "However let me assure you I do not intend to allow such dastardly work to go unchallenged," and said that he was engaged in dealing with men and not irresponsible political manikins or appearances of men. Ordering the attorney's disbarment, the Supreme Court of Illinois declared: ... Judges are not exempt from just criticism, and whenever there is proper ground for serious complaint against a judge, it is the right and duty of a lawyer to submit his grievances to the proper authorities, but the public interest and the administration of the law demand that the courts should have the confidence and respect of the people. Unjust criticism, insulting language, and offensive conduct toward the judges personally by attorneys, who are officers of the court, which tend to bring the courts and the law into disrepute and to destroy public confidence in their integrity, cannot be permitted. The letter written to the judge was plainly an attempt to intimidate and influence him in the discharge of judicial functions, and the bringing of the unauthorized suit, together with the write-up in the Sunday papers, was intended and calculated to bring the court into disrepute with the public. 5. In a public speech, a Rhode Island lawyer accused the courts of the state of being influenced by corruption and greed, saying that the seats of the Supreme Court were bartered. It does not appear that the attorney had criticized any of the opinions or decisions of the Court. The lawyer was charged with unprofessional conduct, and was ordered suspended for a period of two years. The Court said: A calumny of that character, if believed, would tend to weaken the authority of the court against whose members it was made, bring its judgments into contempt, undermine its influence as an unbiased arbiter of the people's right, and interfere with the administration of justice. ... Because a man is a member of the bar the court will not, under the guise of disciplinary proceedings, deprive him of any part of that freedom of speech which he possesses as a citizen. The acts and decisions of the courts of this state, in cases that have reached final determination, are not exempt from fair and honest comment and criticism. It is only when an attorney transcends the limits of legitimate criticism that he will be held responsible for an abuse of his liberty of speech. We well understand that an independent bar, as well as independent court, is always a vigilant defender of civil rights. In Re Troy, 111 Atl. 723. 725. 6. In In Re Rockmore, 111 NYS 879, an attorney was suspended for six months for submitting to an appellate court an affidavit reflecting upon the judicial integrity of the court from which the appeal was taken. Such action, the Court said, constitutes unprofessional conduct justifying suspension from practice, notwithstanding that he fully retracted and withdrew the statements, and asserted that the affidavit was the result of an impulse caused by what he considered grave injustice. The Court said: We cannot shut our eyes to the fact that there is a growing habit in the profession of criticising the motives and integrity of judicial officers in the discharge of their duties, and thereby reflecting on the administration of justice and creating the impression that judicial action is influenced by corrupt or improper motives. Every attorney of this court, as

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well as every other citizen, has the right and it is his duty, to submit charges to the authorities in whom is vested the power to remove judicial officers for any conduct or act of a judicial officer that tends to show a violation of his duties, or would justify an inference that he is false to his trust, or has improperly administered the duties devolved upon him; and such charges to the tribunal, if based upon reasonable inferences, will be encouraged, and the person making them protected. ... While we recognize the inherent right of an attorney in a case decided against him, or the right of the Public generally, to criticise the decisions of the courts, or the reasons announced for them, the habit of criticising the motives of judicial officers in the performance of their official duties, when the proceeding is not against the officers whose acts or motives are criticised, tends to subvert the confidence of the community in the courts of justice and in the administration of justice; and when such charges are made by officers of the courts, who are bound by their duty to protect the administration of justice, the attorney making such charges is guilty of professional misconduct. 7. In In Re Mitchell, 71 So. 467, a lawyer published this statement: I accepted the decision in this case, however, with patience, barring possible temporary observations more or less vituperative and finally concluded, that, as my clients were foreigners, it might have been expecting too much to look for a decision in their favor against a widow residing here. The Supreme Court of Alabama declared that: ... the expressions above set out, not only transcend the bounds of propriety and privileged criticism, but are an unwarranted attack, direct, or by insinuation and innuendo, upon the motives and integrity of this court, and make out a prima facie case of improper conduct upon the part of a lawyer who holds a license from this court and who is under oath to demean himself with all good fidelity to the court as well as to his client. The charges, however, were dismissed after the attorney apologized to the Court. 8. In State ex rel. Dabney v. Breckenridge, 258 Pac. 747, an attorney published in a newspaper an article in which he impugned the motives of the court and its members to try a case, charging the court of having arbitrarily and for a sinister purpose undertaken to suspend the writ of habeas corpus. The Court suspended the respondent for 30 days, saying that: The privileges which the law gives to members of the bar is one most subversive of the public good, if the conduct of such members does not measure up to the requirements of the law itself, as well as to the ethics of the profession. ... The right of free speech and free discussion as to judicial determination is of prime importance under our system and ideals of government. No right thinking man would concede for a moment that the best interest to private citizens, as well as to public officials, whether he labors in a judicial capacity or otherwise, would be served by denying this right of free speech to any individual. But such right does not have as its corollary that members of the bar who are sworn to act honestly and honorably both with their client and with the courts where justice is administered, if administered at all, could ever properly serve their client or the public good by designedly misstating facts or carelessly asserting the law. Truth and honesty of purpose by members of the bar in such discussion is necessary. The health of a municipality is none

the less impaired by a polluted water supply than is the health of the thought of a community toward the judiciary by the filthy wanton, and malignant misuse of members of the bar of the confidence the public, through its duly established courts, has reposed in them to deal with the affairs of the private individual, the protection of whose rights he lends his strength and money to maintain the judiciary. For such conduct on the part of the members of the bar the law itself demands retribution not the court. 9. In Bar Ass'n of San Francisco v. Philbrook, 170 Pac. 440, the filing of an affidavit by an attorney in a pending action using in respect to the several judges the terms criminal corrupt, and wicked conspiracies,," "criminal confederates," "colossal and confident insolence," "criminal prosecution," "calculated brutality," "a corrupt deadfall," and similar phrases, was considered conduct unbecoming of a member of the bar, and the name of the erring lawyer was ordered stricken from the roll of attorneys. 10. In State Board of Examiners v. Hart, 116 N.W. 215, the erring attorney claimed that greater latitude should be allowed in case of criticism of cases finally adjudicated than in those pending. This lawyer wrote a personal letter to the Chief Justice of the Supreme Court of Minnesota impugning both the intelligence and the integrity of the said Chief Justice and his associates in the decisions of certain appeals in which he had been attorney for the defeated litigants. The letters were published in a newspaper. One of the letters contained this paragraph: You assigned it (the property involved) to one who has no better right to it than the burglar to his plunder. It seems like robbing a widow to reward a fraud, with the court acting as a fence, or umpire, watchful and vigilant that the widow got no undue advantage. ... The point is this: Is a proper motive for the decisions discoverable, short of assigning to the court emasculated intelligence, or a constipation of morals and faithlessness to duty? If the state bar association, or a committee chosen from its rank, or the faculty of the University Law School, aided by the researches of its hundreds of bright, active students, or if any member of the court, or any other person, can formulate a statement of a correct motive for the decision, which shall not require fumigation before it is stated, and quarantine after it is made, it will gratify every right-minded citizen of the state to read it. The Supreme Court of Minnesota, in ordering the suspension of the attorney for six months, delivered its opinion as follows: The question remains whether the accused was guilty of professional misconduct in sending to the Chief Justice the letter addressed to him. This was done, as we have found, for the very purpose of insulting him and the other justices of this court; and the insult was so directed to the Chief Justice personally because of acts done by him and his associates in their official capacity. Such a communication, so made, could never subserve any good purpose. Its only effect in any case would be to gratify the spite of an angry attorney and humiliate the officers so assailed. It would not and could not ever enlighten the public in regard to their judicial capacity or integrity. Nor was it an exercise by the accused of any constitutional right, or of any privilege which any reputable attorney, uninfluenced by passion, could ever have any occasion or desire to assert. No judicial officer, with due regard to his position, can resent such an insult otherwise than by methods sanctioned by law; and for any words, oral or written, however abusive, vile, or indecent, addressed secretly to the judge alone, he can have no redress in any

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action triable by a jury. "The sending of a libelous communication or libelous matter to the person defamed does not constitute an actionable publication." 18 Am. & Eng. Enc. Law (2d Ed.) p. 1017. In these respects the sending by the accused of this letter to the Chief Justice was wholly different from his other acts charged in the accusation, and, as we have said, wholly different principles are applicable thereto. The conduct of the accused was in every way discreditable; but so far as he exercised the rights of a citizen, guaranteed by the Constitution and sanctioned by considerations of public policy, to which reference has been made, he was immune, as we hold, from the penalty here sought to be enforced. To that extent his rights as a citizen were paramount to the obligation which he had assumed as an officer of this court. When, however he proceeded and thus assailed the Chief Justice personally, he exercised no right which the court can recognize, but, on the contrary, willfully violated his obligation to maintain the respect due to courts and judicial officers. "This obligation is not discharged by merely observing the rules of courteous demeanor in open court, but it includes abstaining out of court from all insulting language and offensive conduct toward the judges personally for their official acts." Bradley v. Fisher, 13 Wall. (U.S.) 355, 20 L. Ed. 646. And there appears to be no distinction, as regards the principle involved, between the indignity of an assault by an attorney upon a judge, induced by his official act, and a personal insult for like cause by written or spoken words addressed to the judge in his chambers or at his home or elsewhere. Either act constitutes misconduct wholly different from criticism of judicial acts addressed or spoken to others. The distinction made is, we think entirely logical and well sustained by authority. It was recognized in Ex parte McLeod supra. While the court in that case, as has been shown, fully sustained the right of a citizen to criticise rulings of the court in actions which are ended, it held that one might be summarily punished for assaulting a judicial officer, in that case a commissioner of the court, for his rulings in a cause wholly concluded. "Is it in the power of any person," said the court, "by insulting or assaulting the judge because of official acts, if only the assailant restrains his passion until the judge leaves the building, to compel the judge to forfeit either his own selfrespect to the regard of the people by tame submission to the indignity, or else set in his own person the evil example of punishing the insult by taking the law in his own hands? ... No high-minded, manly man would hold judicial office under such conditions." That a communication such as this, addressed to the Judge personally, constitutes professional delinquency for which a professional punishment may be imposed, has been directly decided. "An attorney who, after being defeated in a case, wrote a personal letter to the trial justice, complaining of his conduct and reflecting upon his integrity as a justice, is guilty of misconduct and will be disciplined by the court." Matter of Manheim 133 App. Div. 136, 99 N.Y. Supp. 87 The same is held in Re Griffin (City Ct.) 1 N.Y. 7 and in Re Wilkes (City Ct.) 3 N.Y. In the latter case it appeared that the accused attorney had addressed a sealed letter to a justice of the City Court of New York, in which it was stated, in reference to his decision: "It is not law; neither is it common sense. The result is I have been robbed of 80." And it was decided that, while such conduct was not a contempt under the state, the matter should be "called to the attention of the Supreme Court, which has power to discipline the attorney." "If," says the court, "counsel learned in the law are permitted by writings leveled at the heads of judges, to charge them with ignorance, with unjust rulings, and with robbery, either as principals or accessories, it will not be long before the

general public may feel that they may redress their fancied grievances in like manner, and thus the lot of a judge will be anything but a happy one, and the administration of justice will fall into bad repute." The recent case of Johnson v. State (Ala.) 44 South. 671, was in this respect much the same as the case at bar. The accused, an attorney at law, wrote and mailed a letter to the circuit judge, which the latter received by due course of mail, at his home, while not holding court, and which referred in insulting terms to the conduct of the judge in a cause wherein the accused had been one of the attorneys. For this it was held that the attorney was rightly disbarred in having "willfully failed to maintain respect due to him [the judge] as a judicial officer, and thereby breached his oath as an attorney." As recognizing the same principle, and in support of its application to the facts of this case, we cite the following: Ex parte Bradley, 7 Wall (U.S.) 364, 19 L. Ed. 214; Beene v. State, 22 Ark. 149; Commonwealth v. Dandridge, 2 Va. Cas. 408; People v. Green, 7 Colo 237, 244, 3 Pac. 65, 374, 49 Am. Rep. 351; Smith's Appeal, 179 Pa. 14, 36 Atl. 134; Scouten's Appeal, 186 Pa. 270, Atl. 481. Our conclusion is that the charges against the accused have been so far sustained as to make it our duty to impose such a penalty as may be sufficient lesson to him and a suitable warning to others. ... 11. In Cobb v. United States, 172 F. 641, the court affirmed a lawyer's suspension for 18 months for publishing a letter in a newspaper in which he accused a judge of being under the sinister influence of a gang that had paralyzed him for two years. 12. In In Re Graves, 221 Pac. 411, the court held that an attorney's unjustifiable attack against the official acts and decisions of a judge constitutes "moral turpitude." There, the attorney was disbarred for criticising not only the judge, but his decisions in general claiming that the judge was dishonest in reaching his decisions and unfair in his general conduct of a case. 13. In In Re Doss, 12 N.E. 2d 659, an attorney published newspaper articles after the trial of cases, criticising the court in intemperate language. The invariable effect of this sort of propaganda, said the court, is to breed disrespect for courts and bring the legal profession into disrepute with the public, for which reason the lawyer was disbarred. 14. In State v. Grimes, 354 Pac. 2d 108, an attorney, dissatisfied with the loss of a case, prepared over a period of years vicious attacks on jurists. The Oklahoma Supreme Court declared that his acts involved such gross moral turpitude as to make him unfit as a member of the bar. His disbarment was ordered, even though he expressed an intention to resign from the bar. The teaching derived from the above disquisition and impressive affluence of judicial pronouncements is indubitable: Post-litigation utterances or publications, made by lawyers, critical of the courts and their judicial actuations, whether amounting to a crime or not, which transcend the permissible bounds of fair comment and legitimate criticism and thereby tend to bring them into disrepute or to subvert public confidence in their integrity and in the orderly administration of justice, constitute grave professional misconduct which may be visited with disbarment or other lesser appropriate disciplinary sanctions by the Supreme Court in the exercise of the prerogatives inherent in it as the duly constituted guardian of the morals and ethics of the legal fraternity.

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Of course, rarely have we wielded our disciplinary powers in the face of unwarranted outbursts of counsel such as those catalogued in the above-cited jurisprudence. Cases of comparable nature have generally been disposed of under the power of courts to punish for contempt which, although resting on different bases and calculated to attain a different end, nevertheless illustrates that universal abhorrence of such condemnable practices. A perusal of the more representative of these instances may afford enlightenment. 1. In Salcedo vs. Hernandez, 61 Phil. 724, where counsel branded the denial of his motion for reconsideration as "absolutely erroneous and constituting an outrage to the rigths of the petitioner Felipe Salcedo and a mockery of the popular will expressed at the polls," this Court, although conceding that 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 requires. The reason for this is that respect for the courts guarantees the stability of their institution. Without such guaranty, said institution would be resting on a very shaky foundation, found counsel guilty of contempt inasmuch as, in its opinion, the statements made disclosed ... an inexcusable disrespect of the authority of the court and an intentional contempt of its dignity, because the court is thereby charged with no less than having proceeded in utter disregard of the laws, the rights to the parties, and 'of the untoward consequences, or with having abused its power and mocked and flouted the rights of Attorney Vicente J. Francisco's client ... . 2. In In re Sotto, 82 Phil. 595, counsel, a senator and the author of the Press Freedom Law, reaching to, the imprisonment for contempt of one Angel Parazo, who, invoking said law, refused to divulge the source of a news item carried in his paper, caused to be published in i local newspaper a statement expressing his regret "that our High Tribunal has not only erroneously interpreted said law, but it is once more putting in evidence the incompetency or narrow mindedness of the majority of its members," and his belief that "In the wake of so many blunders and injustices deliberately committed during these last years, ... the only remedy to put an end to go much evil, is to change the members of the Supreme Court," which tribunal he denounced as "a constant peril to liberty and democracy" and "a far cry from the impregnable bulwark of justice of those memorable times of Cayetano Arellano, Victorino Mapa, Manuel Araullo and other learned jurists who were the honor and glory of the Philippine Judiciary." He there also announced that one of the first measures he would introduce in then forthcoming session of Congress would have for its object the complete reorganization of the Supreme Court. Finding him in contempt, despite his avowals of good faith and his invocation of the guarantee of free speech, this Court declared: But in the above-quoted written statement which he caused to be published in the press, the respondent does not merely criticize or comment on the decision of the Parazo case, which was then and still is pending consideration by this Court upon petition of Angel Parazo. He not only intends to

intimidate the members of this Court with the presentation of a bill in the next Congress, of which he is one of the members, reorganizing the Supreme Court and reducing the number of Justices from eleven, so as to change the members of this Court which decided the Parazo case, who according to his statement, are incompetent and narrow minded, in order to influence the final decision of said case by this Court, and thus embarrass or obstruct the administration of justice. But the respondent also attacks the honesty and integrity of this Court for the apparent purpose of bringing the Justices of this Court into disrepute and degrading the administration. of justice ... . To hurl the false charge that this Court has been for the last years committing deliberately so many blunders and injustices, that is to say, that it has been deciding in favor of Que party knowing that the law and justice is on the part of the adverse party and not on the one in whose favor the decision was rendered, in many cases decided during the last years, would tend necessarily to undermine the confidence of the people in the honesty and integrity of the members of this Court, and consequently to lower ,or degrade the administration of justice by this Court. The Supreme Court of the Philippines is, under the Constitution, the last bulwark to which the Filipino people may repair to obtain relief for their grievances or protection of their rights when these are trampled upon, and if the people lose their confidence in the honesty and integrity of the members of this Court and believe that they cannot expect justice therefrom, they might be driven to take the law into their own hands, and disorder and perhaps chaos might be the result. As a member of the bar and an officer of the courts, Atty. Vicente Sotto, like any other, is in duty bound to uphold the dignity and authority of this Court, to which he owes fidelity according to the oath he has taken as such attorney, and not to promote distrust in the administration of justice. Respect to the courts guarantees the stability of other institutions, which without such guaranty would be resting on a very shaky foundation. Significantly, too, the Court therein hastened to emphasize that ... an attorney as an officer of the court is under special obligation to be respectful in his conduct and communication to the courts; he may be removed from office or stricken from the roll of attorneys as being guilty of flagrant misconduct (17 L.R.A. [N.S.], 586, 594.) 3. In Rheem of the Philippines vs. Ferrer: In re Proceedings against Alfonso Ponce Enrile, et al., supra, where counsel charged this Court with having "repeatedly fallen" into ,the pitfall of blindly adhering to its previous "erroneous" pronouncements, "in disregard of the law on jurisdiction" of the Court of Industrial Relations, our condemnation of counsel's misconduct was unequivocal. Articulating the sentiments of the Court, Mr. Justice Sanchez stressed: As we look back at the language (heretofore quoted) employed in the motion for reconsideration, implications there are which inescapably arrest attention. It speaks of one pitfall into which this Court has repeatedly fallen whenever the jurisdiction of the Court of Industrial Relations comes into question. That pitfall is the tendency of this Court to rely on its own pronouncements in disregard of the law on jurisdiction. It makes a sweeping charge that the decisions of this Court, blindly adhere to earlier rulings without as much as making any reference to and analysis of the pertinent statute governing the jurisdiction of the industrial court. The plain import of all these is that this Court is so patently inept that in determining the jurisdiction of the industrial court, it

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has committed error and continuously repeated that error to the point of perpetuation. It pictures this Court as one which refuses to hew to the line drawn by the law on jurisdictional boundaries. Implicit in the quoted statements is that the pronouncements of this Court on the jurisdiction of the industrial court are not entitled to respect. Those statements detract much from the dignity of and respect due this Court. They bring into question the capability of the members and some former members of this Court to render justice. The second paragraph quoted yields a tone of sarcasm which counsel labelled as "so called" the "rule against splitting of jurisdiction." Similar thoughts and sentiments have been expressed in other cases 18 which, in the interest of brevity, need not now be reviewed in detail. Of course, a common denominator underlies the aforecited cases all of them involved contumacious statements made in pleadings filed pending litigation. So that, in line with the doctrinal rule that the protective mantle of contempt may ordinarily be invoked only against scurrilous remarks or malicious innuendoes while a court mulls over a pending case and not after the conclusion thereof, 19 Atty. Almacen would now seek to sidestep the thrust of a contempt charge by his studied emphasis that the remarks for which he is now called upon to account were made only after this Court had written finis to his appeal. This is of no moment. The rule that bars contempt after a judicial proceeding has terminated, has lost much of its vitality. For sometime, this was the prevailing view in this jurisdiction. The first stir for a modification thereof, however, came when, in People vs. Alarcon, 20 the then Chief Justice Manuel V. Moran dissented with the holding of the majority, speaking thru Justice Jose P. Laurel, which upheld the rule above-adverted to. A complete disengagement from the settled rule was later to be made in In re Brillantes, 21 a contempt proceeding, where the editor of the Manila Guardian was adjudged in contempt for publishing an editorial which asserted that the 1944 Bar Examinations were conducted in a farcical manner after the question of the validity of the said examinations had been resolved and the case closed. Virtually, this was an adoption of the view expressed by Chief Justice Moran in his dissent in Alarcon to the effect that them may still be contempt by publication even after a case has been terminated. Said Chief Justice Moran in Alarcon: A publication which tends to impede, obstruct, embarrass or influence the courts in administering justice in a pending suit or proceeding, constitutes criminal contempt which is 'summarily punishable by courts. A publication which tends to degrade the courts and to destroy public confidence in them or that which tends to bring them in any way into disrepute, constitutes likewise criminal contempt, and is equally punishable by courts. What is sought, in the first kind of contempt, to be shielded against the influence of newspaper comments, is the all-important duty of the courts to administer justice in the decision of a pending case. In the second kind of contempt, the punitive hand of justice is extended to vindicate the courts from any act or conduct calculated to bring them into disfavor or to destroy public confidence in them. In the first there is no contempt where there is no action pending, as there is no decision which might in any way be influenced by the newspaper publication. In the second, the contempt exists, with or without a pending case, as what is sought to be protected is the court itself and its dignity. Courts would lose their utility if public confidence in them is destroyed. Accordingly, no comfort is afforded Atty. Almacen by the

circumstance that his statements and actuations now under consideration were made only after the judgment in his client's appeal had attained finality. He could as much be liable for contempt therefor as if it had been perpetrated during the pendency of the said appeal. More than this, however, consideration of whether or not he could be held liable for contempt for such post litigation utterances and actuations, is here immaterial. By the tenor of our Resolution of November 17, 1967, we have confronted the situation here presented solely in so far as it concerns Atty. Almacen's professional identity, his sworn duty as a lawyer and his fitness as an officer of this Court, in the exercise of the disciplinary power the morals inherent in our authority and duty to safeguard and ethics of the legal profession and to preserve its ranks from the intrusions of unprincipled and unworthy disciples of the noblest of callings. In this inquiry, the pendency or non-pendency of a case in court is altogether of no consequence. The sole objective of this proceeding is to preserve the purity of the legal profession, by removing or suspending a member whose misconduct has proved himself unfit to continue to be entrusted with the duties and responsibilities belonging to the office of an attorney. Undoubtedly, this is well within our authority to do. By constitutional mandate, 22 our is the solemn duty, amongst others, to determine the rules for admission to the practice of law. Inherent in this prerogative is the corresponding authority to discipline and exclude from the practice of law those who have proved themselves unworthy of continued membership in the Bar. Thus The power to discipline attorneys, who are officers of the court, is an inherent and incidental power in courts of record, and one which is essential to an orderly discharge of judicial functions. To deny its existence is equivalent to a declaration that the conduct of attorneys towards courts and clients is not subject to restraint. Such a view is without support in any respectable authority, and cannot be tolerated. Any court having the right to admit attorneys to practice and in this state that power is vested in this court-has the inherent right, in the exercise of a sound judicial discretion to exclude them from practice. 23 This, because the admission of a lawyer to the practice of law is a representation to all that he is worthy of their confidence and respect. So much so that ... whenever it is made to appear to the court that an attorney is no longer worthy of the trust and confidence of the public and of the courts, it becomes, not only the right, but the duty, of the court which made him one of its officers, and gave him the privilege of ministering within its bar, to withdraw the privilege. Therefore it is almost universally held that both the admission and disbarment of attorneys are judicial acts, and that one is admitted to the bar and exercises his functions as an attorney, not as a matter of right, but as a privilege conditioned on his own behavior and the exercise of a just and sound judicial discretion. 24 Indeed, in this jurisdiction, that power to remove or suspend has risen above being a mere inherent or incidental power. It has been elevated to an express mandate by the Rules of Court. 25 Our authority and duty in the premises being unmistakable, we now proceed to make an assessment of whether or not the utterances and actuations of Atty. Almacen here in question are properly the object of disciplinary sanctions.

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The proffered surrender of his lawyer's certificate is, of course, purely potestative on Atty. Almacen's part. Unorthodox though it may seem, no statute, no law stands in its way. Beyond making the mere offer, however, he went farther. In haughty and coarse language, he actually availed of the said move as a vehicle for his vicious tirade against this Court. The integrated entirety of his petition bristles with vile insults all calculated to drive home his contempt for and disrespect to the Court and its members. Picturing his client as "a sacrificial victim at the altar of hypocrisy," he categorically denounces the justice administered by this Court to be not only blind "but also deaf and dumb." With unmitigated acerbity, he virtually makes this Court and its members with verbal talons, imputing to the Court the perpetration of "silent injustices" and "short-cut justice" while at the same time branding its members as "calloused to pleas of justice." And, true to his announced threat to argue the cause of his client "in the people's forum," he caused the publication in the papers of an account of his actuations, in a calculated effort ;to startle the public, stir up public indignation and disrespect toward the Court. Called upon to make an explanation, he expressed no regret, offered no apology. Instead, with characteristic arrogance, he rehashed and reiterated his vituperative attacks and, alluding to the Scriptures, virtually tarred and feathered the Court and its members as inveterate hypocrites incapable of administering justice and unworthy to impose disciplinary sanctions upon him. The virulence so blatantly evident in Atty. Almacen's petition, answer and oral argumentation speaks for itself. The vicious language used and the scurrilous innuendoes they carried far transcend the permissible bounds of legitimate criticism. They could never serve any purpose but to gratify the spite of an irate attorney, attract public attention to himself and, more important of all, bring ;this Court and its members into disrepute and destroy public confidence in them to the detriment of the orderly administration of justice. Odium of this character and texture presents no redeeming feature, and completely negates any pretense of passionate commitment to the truth. It is not a whit less than a classic example of gross misconduct, gross violation of the lawyer's oath and gross transgression of the Canons of Legal Ethics. As such, it cannot be allowed to go unrebuked. The way for the exertion of our disciplinary powers is thus laid clear, and the need therefor is unavoidable. We must once more stress our explicit disclaimer of immunity from criticism. Like any other Government entity in a viable democracy, the Court is not, and should not be, above criticism. But a critique of the Court must be intelligent and discriminating, fitting to its high function as the court of last resort. And more than this, valid and healthy criticism is by no means synonymous to obloquy, and requires detachment and disinterestedness, real qualities approached only through constant striving to attain them. Any criticism of the Court must, possess the quality of judiciousness and must be informed -by perspective and infused by philosophy. 26 It is not accurate to say, nor is it an obstacle to the exercise of our authority in ;the premises, that, as Atty. Almacen would have appear, the members of the Court are the "complainants, prosecutors and judges" all rolled up into one in this instance. This is an utter misapprehension, if not a total distortion, not only of the nature of the proceeding at hand but also of our role therein. Accent should be laid on the fact that disciplinary proceedings like the present are sui generis. Neither purely civil nor purely criminal, this proceeding is not and does

not involve a trial of an action or a suit, but is rather an investigation by the Court into the conduct of its officers. 27 Not being intended to. inflict punishment, it is in no sense a criminal prosecution. Accordingly, there is neither a plaintiff nor a prosecutor therein It may be initiated by the Court motu proprio. 28 Public interest is its primary objective, and the real question for determination is whether or not the attorney is still a fit person to be allowed the privileges as such. Hence, in the exercise of its disciplinary powers, the Court merely calls upon a member of the Bar to account for his actuations as an officer of the Court with the end in view of preserving the purity of the legal profession and the proper and honest administration of justice by purging the profession of members who by their misconduct have proved themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an attorney. 29 In such posture, there can thus be no occasion to speak of a complainant or a prosecutor. Undeniably, the members of the Court are, to a certain degree, aggrieved parties. Any tirade against the Court as a body is necessarily and inextricably as much so against the individual members thereof. But in the exercise of its disciplinary powers, the Court acts as an entity separate and distinct from the individual personalities of its members. Consistently with the intrinsic nature of a collegiate court, the individual members act not as such individuals but. only as a duly constituted court. Their distinct individualities are lost in the majesty of their office. 30 So that, in a very real sense, if there be any complainant in the case at bar, it can only be the Court itself, not the individual members thereof as well as the people themselves whose rights, fortunes and properties, nay, even lives, would be placed at grave hazard should the administration of justice be threatened by the retention in the Bar of men unfit to discharge the solemn responsibilities of membership in the legal fraternity. Finally, the power to exclude persons from the practice of law is but a necessary incident of the power to admit persons to said practice. By constitutional precept, this power is vested exclusively in this Court. This duty it cannot abdicate just as much as it cannot unilaterally renounce jurisdiction legally invested upon it. 31 So that even if it be conceded that the members collectively are in a sense the aggrieved parties, that fact alone does not and cannot disqualify them from the exercise of that power because public policy demands that they., acting as a Court, exercise the power in all cases which call for disciplinary action. The present is such a case. In the end, the imagined anomaly of the merger in one entity of the personalities of complainant, prosecutor and judge is absolutely inexistent. Last to engage our attention is the nature and extent of the sanctions that may be visited upon Atty. Almacen for his transgressions. As marked out by the Rules of Court, these may range from mere suspension to total removal or disbarment. 32 The discretion to assess under the circumstances the imposable sanction is, of course, primarily addressed to the sound discretion of the Court which, being neither arbitrary and despotic nor motivated by personal animosity or prejudice, should ever be controlled by the imperative need that the purity and independence of the Bar be scrupulously guarded and the dignity of and respect due to the Court be zealously maintained. That the misconduct committed by Atty. Almacen is of considerable gravity cannot be overemphasized. However, heeding the stern injunction that disbarment should never be decreed where a lesser sanction would accomplish the end desired, and believing that it may not perhaps be futile to hope that in the sober light of some future day, Atty. Almacen

44

will realize that abrasive language never fails to do disservice to an advocate and that in every effervescence of candor there is ample room for the added glow of respect, it is our view that suspension will suffice under the circumstances. His demonstrated persistence in his misconduct by neither manifesting repentance nor offering apology therefor leave us no way of determining how long that suspension should last and, accordingly, we are impelled to decree that the same should be indefinite. This, we are empowered to do not alone because jurisprudence grants us discretion on the matter 33 but also because, even without the comforting support of precedent, it is obvious that if we have authority to completely exclude a person from the practice of law, there is no reason why indefinite suspension, which is lesser in degree and effect, can be regarded as falling outside of the compass of that authority. The merit of this choice is best shown by the fact that it will then be left to Atty. Almacen to determine for himself how long or how short that suspension shall last. For, at any time after the suspension becomes effective he may prove to this Court that he is once again fit to resume the practice of law. ACCORDINGLY, IT IS THE SENSE of the Court that Atty. Vicente Raul Almacen be, as he is hereby, suspended from the practice of law until further orders, the suspension to take effect immediately. Let copies of this resolution. be furnished the Secretary of Justice, the Solicitor General and the Court of Appeals for their information and guidance. Concepcion,. C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Teehankee, Barredo and Villamor JJ., concur. Fernando, J., took no part.

45

12 G.R. No. L-33672 September 28, 1973 SCRA 190, 1973)

(53

VICENTE MUOZ, petitioner, vs. PEOPLE OF THE PHILIPPINES and THE COURT OF APPEALS, respondents, DELIA T. SUTTON, respondent. RESOLUTION FERNANDO, J.: We have before us a task far from pleasant. Respondent, Delia T. Sutton, a member of the Philippine Bar, connected with the law firm of Salonga, Ordoez, Yap, Parlade, and Associates, must be held accountable for failure to live up to that exacting standard expected of counsel, more specifically with reference to a duty owing this Tribunal. She failed to meet the test of candor and honesty required of pleaders when, in a petition for certiorari prepared by her to review a Court of Appeals decision, she attributed to it a finding of facts in reckless disregard, to say the least, of what in truth was its version as to what transpired. When given an opportunity to make proper amends, both in her appearance before us and thereafter in her memorandum, there was lacking any showing of regret for a misconduct so obvious and so inexcusable. Such an attitude of intransigence hardly commends itself. Her liability is clear. Only her relative inexperience in the ways of the law did save her from a penalty graver than severe censure. So we rule. The background of the incident before us was set forth in our resolution of July 12, 1971. It reads as follows: "Acting upon the petition for review in G.R. No. L-33672, Vicente Muoz v. People of the Philippines and the Court of Appeals, and considering that the main issue therein is whether petitioner Muoz is guilty of homicide through reckless negligence, as charged in the information; that in the language of the decision of the Court of Appeals "the prosecution and the defense offered two conflicting versions of the incident that gave rise to the case"; that, upon examination of the evidence, the Court of Appeals found, as did the trial court, that the version of the prosecution is the true one and that of the defense is unbelievable; that this finding of the Court of Appeals is borne out by substantial evidence, whereas the version of the defense is inconsistent with some established facts, for: (a) petitioner's theory, to the effect that his boat had been rammed by that of the complainant, is refuted by the fact that after hitting the left frontal outrigger of the latter's boat, the prow and front outrigger of petitioner's motorboat hit also the left front portion of complainant's boat where the complainant was seated, thereby hitting him on the back and inflicting the injury that cause his death so that, immediately after the collision - part of petitioner's boat was on top of that of the complainant; (b) these circumstances, likewise, indicate the considerable speed at which petitioner's motorboat was cruising, (c) petitioner's motorboat had suffered very little damage, which would have been considerable had it been rammed by the offended party's boat, the latter being bigger than, as well as provided with an engine twice as powerful as, that of the petitioner; and (d) although appellant's boat carried several passengers, including children, and was, in fact, overloaded, appellant acted as pilot and, at the same time, as its machinist, thereby rendering it difficult for him to manuever it properly; the Court resolved to [deny] the petition upon the ground that it is mainly factual and for lack of merit. Considering further, that the petition quotes, on page 5 thereof a portion of the decision appealed from, summing up evidence for the defense, and makes reference thereto "findings" of the Court

of Appeals, which is not true; that, on page 6 of the petition, petitioner states, referring to a portion of the same quotation, that the same "are the established uncontroverted facts recognized by the Court of Appeals," which is, likewise, untrue; that, on page 8 of the petition, it is averred "It being conceded that the two versions recounted above are by themselves credible, although they are conflicting the same cannot be binding on, and is therefore, reviewable by the Honorable Supreme Court. Where the findings of fact of the Court of Appeals [are conflicting], the same [are not binding] on the Supreme Court. (Cesica v. Villaseca, G.R. L9590, April 30, 1957)" although, in fact, no conflicting findings of fact are made in the decision appealed from; and that, on page 9 of the petition, it is alleged that the Court of Appeals had"affirmed the minimum penalty of one (1) year and one (1) day imposed by the lower court," although, in fact, minimum penalty imposed by the trial court was "four(4) months of arresto mayor"; the Court resolved to require counsel for the petitioner to show cause, within ten (10) days from notice, why they should not be dealt with for contempt of court [or] otherwise subjected to disciplinary action for making aforementioned misrepresentations." " 1 A pleading entitled "Compliance with Resolution" by the aforesaid law firm was filed on August 14, 1971. There was no attempt at justification, because in law there is none, but it did offer what was hoped to be a satisfactory explanation. If so, such optimism was misplaced. It betrayed on its face more than just a hint of lack of candor, of minimizing the effects of grave inaccuracies in the attribution to the Court of Appeals certain alleged facts not so considered as such. It was then to say that the least a far from meticulous appraisal of the matter in issue. Much of what was therein contained did not ring true. Under the circumstances, we set the matter for hearing on September 14 of the same year, requiring all lawyerspartners in said firm to be present. At such a hearing, respondent Delia T. Sutton appeared. While her demeanor was respectful, it was obvious that she was far from contrite. On the contrary, the impression she gave the Court was that what was done by her was hardly deserving of any reproach. Even when subjected to intensive questioning by several members of the Court, she was not to be budged from such an untenable position. It was as if she was serenely unconcerned, oblivious of the unfavorable reaction to, which her evasive answers gave rise. There certainly was lack of awareness of the serious character of her misdeed. The act of unruffled assurance under the circumstances was hard to understand. Perhaps realizing that the Court was not disposed to look at the matter as a minor peccadillo, Attorney Sedfrey A. Ordoez of the law firm expressly acknowledged that what appeared in its petition for certiorari prepared by respondent Delia T. Sutton insofar as it did misrepresent what is set forth in the Court of Appeals decision sought to be reviewed was reprehensible, and did make with the proper spirit of humility the necessary expression of regret. What is more, the law firm in a pleading entitled "Joint Apology to the Supreme Court" filed on December 1, 1971, signed jointly by Sedfrey A. Ordoez and Delia Sutton, did seek to make amends thus: "1. That undersigned attorney, Delia T. Sutton, together with Messrs. Sedfrey A. Ordoez, Pedro L. Yap and Custodio O. Parlade, partners in the firm of Salonga, Ordoez, Yap, Parlade & Associates, appeared before this Honorable Court on November 22, 1971, pursuant to an order dated October 18, 1971; 2. That with all the sincerity and candor at the command of undersigned attorney, the circumstances surrounding her preparation of the pleading which gave rise to the instant citation to show cause why she should not be punished for contempt of court

46

were explained by her, with the assistance of Atty. Sedfrey A. Ordoez; 3. That the undersigned Delia T. Sutton had no intention to misrepresent any question of fact before this Honorable Court for her personal gain or benefit, and that it was her lack of adequate extensive experience in preparing petitions for certiorari which may have caused the inaccurate statements in the said petition which were enumerated in the order of this Honorable Court; 4. That undersigned Delia T. Sutton contritely realizes the errors which she committed in the preparation of the said petition for certiorari and that the same will not recur in the future as she will always abide by the provisions on candor and fairness in the Canons of Professional Ethics, which reads: "22. [Candor and Fairness]. The conduct of the lawyer before the court and with other lawyers should be characterized by candor and fairness. It is not candid or fair for the lawyer knowingly to misquote the contents of a paper, the testimony of a witness, the language or the argument of opposing counsel, or the language of a decision or a textbook or; with knowledge of its invalidity, to cite as authority a decision that has been overruled, or a statute that has been repealed; or in argument to assert as fact that which has not been proved, or in those jurisdictions where a side has the opening and closing arguments to mislead his opponent by concealing or withholding positions in his opening argument upon which his side then intends to rely. ..." 5. That undersigned Atty. Sedfrey A. Ordoez joins Atty. Delia T. Sutton in expressing his own apologies to the Honorable Court for not having thoroughly supervised the preparation by Atty. Delia T. Sutton of a type of pleading with which she was not thoroughly familiar." 2 The "Joint Apology" thus offered did mitigate to some extent the liability of respondent Sutton. Some members of the Court feel, however, that it does not go far enough. While expressing regret and offering apology, there was lacking that free admission that what was done by her should not characterized merely as "errors" consisting as they do of "inaccurate statements." If there were a greater sincerity on her part, the offense should have been acknowledged as the submission of deliberate misstatements. There ought to be, for the apology to gain significance, no further attempt at minimizing the enormity of the misdeed. It is then as if there was hardly any retreat from the untenable stand originally taken. The mood, even at this stage, seems to be that she could brazen it out as long as the words indicative of an apology were offered. This Court does not view matters thus. To purge herself of the contempt, she ought to have displayed the proper spirit of contrition and humility. The burden cast on the judiciary would be intolerable if it could not take at face value what is asserted by counsel. The time that will have to be devoted just to the task of verification of allegations submitted could easily be imagined. Even with due recognition then that counsel is expected to display the utmost zeal in defense of a client's cause, it must never be at the expense of deviation from the truth. As set forth in the applicable Canon of Legal Ethics: "Nothing operates more certainly to create or to foster popular prejudice against lawyers as a class, and to deprive the profession of that full measure of public esteem and confidence which belongs to the proper discharge of its duties than does the false claim, often set up by the unscrupulous in defense of questionable transactions, that it is the duty of the lawyer to do whatever may enable him to succeed in winning his client's cause." 3 What is more, the obligation to the bench, especially to this Court, for candor and honesty takes precedence. It is by virtue of such considerations that punishment that must fit the offense has to be meted out to respondent Delia T. Sutton. At the same time, the attitude displayed by one of the senior

partners, Attorney Sedfrey A. Ordoez, both in the appearances before the Court and in the pleadings submitted, must be commended. He has made manifest that his awareness of the role properly incumbent on counsel, especially in his relationship to this Court, is deep-seated. It must be stated, however, that in the future he, as well as the other senior partners, should exercise greater care in the supervision of the attorneys connected with their law firm, perhaps inexperienced as yet but nonetheless called upon to comply with the peremptory tenets of ethical conduct. WHEREFORE, respondent Delia T. Sutton is severely censured. Let a copy of this resolution be spread on her record. Makalintal, Actg. C.J., Zaldivar, Castro, Teehankee, Antonio and Esguerra, JJ., concur. Barredo, J., took no part. Makasiar, J., is on leave.

47

G.R. No. L-2807 1951)

13 April 23, 1951

(88

Phil

531,

MIGUEL AMANDO A. SIOJO, substituted by PEDRO SIOJO, plaintiff-appellee, vs. RUPERTA TECSON, ET AL., defendants-appellants. Lorenzo G. Valentin for appellee. Padilla, Carlos and Fernando for appellants. BENGZON, J.: This is an appeal from a decision of the court of first instance of Bulacan ordering the annulment of a deed of sale executed by Miguel Amando A. Siojo and Maria Remedios A. Siojo in favor of Ruperta Tecson. The decision was rendered after a hearing in which the plaintiff and his witnesses testified in the absence of the defendants and their counsel. After failing in a motion for new trial, the defendants appealed to the Court of Appeals, which in turn forwarded the record to us because only questions of law are involved. Plaintiff, in his complaint, alleged that the deed of sale had been signed by him without consideration. Defendants in their answer denied the allegation and asserted that the contract was valid. On January 17, 1947, an order was issued setting the case for hearing on March 5, 1947. Under date of February 26, 1947 Attorney Padilla, for defendants, filed a motion for postponement on the ground that he had another case for trial on the same date in the court of First Instance of Manila. He set the motion for hearing and resolution for March 5, 1947. On March 5, 1947 the litigation was called, and having probably been asked about the request for postponement the attorney for plaintiff objected for the reasons (a) that the attorney for defendants had other associates who could have appeared for his clients, (b) it was unfair to set the motion for postponement on the same date of trial and (c) his witnesses were in court ready to testify. The Court denied the motion to postpone and heard the case. Thereafter it granted the relief requested by the plaintiff, stating in its decision that, The evidence for the plaintiff shows that Miguel Amando A. Siojo and Maria Remedios Siojo who are legitimate brother and sister of the first marriage inherited from their father the land and the house in question together with Pedro Siojo, John Siojo and Emelda Siojo, who are brothers and sisters of the second marriage; that the brothers and sisters of the second marriage did not respect the first two as elder brother and sister for which reason in order to prevent them from inheriting their respective share in case they die they (Miguel Amando A. Siojo and Maria Remedios Siojo) Executed the deed of sale, Exhibit B, in favor of Ruperta Tecson without valuable consideration, because the amount of P3,000 was not paid therefor; that on account of the act that said contract of deed of sale was fictitious, the plaintiff destroyed the original copy, after the brothers and sisters of the second marriage and the plaintiff herein had made up their misunderstanding; that Ruperta Tecson presented in the office of the Register of Deeds of Bulacan the duplicate copy of the said contract of deed of sale, and it was entered in the Primary Entry Book, although its registration was not affected due to the non-payment of the registration fees; and that Ruperta Tecson has never been in possession of the property, neither has she claimed possession thereof before the destruction of the original copy.

In this appeal, the appellants insist that the trial judge erred or abused his discretion in refusing to continue the case, in permitting the plaintiff to introduce his evidence in their absence and in thus depriving them of their day in Court. The pertinent rulings in the matter of continuance are condensed in the Comments of former Chief Justice, Dr. M. V. Moran as follows: "The matter of adjournments and postponements of trials lies generally within the discretion of courts and such discretion will not be interfered with either by mandamus or by appeal, unless a grave abuse thereof is shown. . . ." 1 "Whether a trial may be continued because a party's attorney is engaged in another trial on the same date, is a question to be determined in the discretion of the court according to the peculiar circumstances of each case. Continuance may be granted if the attorney is without fault, or it causes no undue prejudice either to the adverse party or to the interest of a prompt administration of justice. A practitioner may have two cases in two different courts set for trial on the same date without his previous knowledge and consent, and under this circumstance it is but fair to grant him postponement of one of the trials if petition to that effect is presented at such time as is practicable to prevent the adverse party from coming to court with his witnesses on the day set for trial thus incurring unnecessary expenses otherwise, he may be made to pay for such expenses as a pre-requisite to continuance. But, an attorney retained ina case the trial of which is set for a date on which he knows he cannot appear because of his engagement in another trial set previously for the same date, has no right to presume that the court will necessarily grant him continuance. The most ethical thing for him to do in such situation is to inform the prospective client of all the facts so that the latter may retain another attorney. If the client, having full knowledge of all the facts, still retains the attorney, he assumes the risk himself and cannot complain of the consequences if postponement is denied and finds himself without attorney to represent him at the trial2 . . . ." ". . . And at a party moving for postponement should be in court on the day set for trial if the motion is not acted upon favorably before that day. He has no right to rely either on the liberality of the court,3 or on the generosity of the adverse party4." (Comments on the Rules of Court, Third Ed., pp. 577-580.) The last portion of the above quotation counts heavily against the appellants. They and their counsel should not have assumed that the trial would be postponed. Even if their counsel received no written opposition from plaintiff's advocate, as the date is not shown when the said advocate had received the motion for postponement the argument based on his silence lacks sufficient basis. Furthermore, no rule required him to file a written opposition; on the contrary, he had a right to believe that his objection could be orally interposed on March 5, 1947, the date set for the submission of the motion and the argument thereon. In this connection a general idea may be outlined for the benefits of practicing attorneys. If defendants' advocate received the trial notice of January 17, 1947, after he had gotten notice of hearing in the Manila court, he should have lost no time to seek postponement of the case in Bulacan. One month (January 17 February 26) was too long. If, on the other hand, the Manila case was set after the Bulacan case, counsel should have first asked continuance from the Manila court, and if that petition, was denied then he should have informed the Bulacan court of his inability to secure

48

postponement. this is on the principle that both courts are of the same category, and to undue preference should be shown for the work in one as against the other. We repeat that this rule applies under ordinary circumstances. Exceptional situations might develop requiring a different course of action. Looking at the equitable side of this litigation, we notice that although defendants repeatedly assert a valid consideration for the deed of conveyance they do not specify such consideration and have not dared to attach any affidavit of merit to their "motion for reconsideration and new trial," which pleading, whether filed under Rule 37 or under Rule 38 must needs be supported by sworn allegations of meritorious or substantial defense. Probably conscious of the above shortcoming, appellants' attorney adroitly attempted to divert our attention to the precepts of the Constitution that no one shall be deprived of his property without due process of law, without being afforded his day in court. This plea, impressive at first glance has heretofore been overruled by our holding that where a party is duly notified of the trial and fails to attend it without sufficient cause, he cannot thereafter claim that he was deprived of his day in court. (Sandejas vs. Robles, 81 Phil., 421; 46 Off. Gaz., [No. 1] 203.). The appealed judgment will be affirmed, with costs. Paras C.J., Feria, Pablo, Tuason, Montemayor, Jugo and Bautista Angelo, JJ., concur.

G.R. No. L-21115 1968)

14 October 29, 1968

(25 SCRA 801,

LINKOD JUANE, RUPERTO SUGA and FLORA ANTONIO, petitioners, vs. HON. GREGORIO N. GARCIA, as Presiding Judge of Branch I of the Municipal Court of Manila, HON. GAUDENCIO CLORIBEL, as Presiding Judge of Branch VI of the Court of First Instance of Manila, HON. JOSE N. LEUTERIO, as Presiding Judge of Branch II of the Court of First Instance of Manila, THE HONORABLE COURT OF APPEALS and THE SHERIFF OF THE CITY OF MANILA, respondents. Ruperto V. Suga for and in his own behalf as petitioner. Antonio Gonzales for respondents. SANCHEZ, J.: The present action for certiorari, prohibition and mandamus, challenging the legality of the proceeding in the courts below has its roots in two ejectment suits. On January 28, 1960, Manotok Realty, Incorporated (Manotok) sued petitioners Linkod Juane and Ruperto Suga for ejectment. Manotok's complaint avers a month to month lease, non-payment of rentals and refusal to vacate.1 A similar action was lodged by Manotok against petitioner Flora Antonio.2 After answers to the ejectment suits were filed but before hearing on the merits, the Republic started court proceedings for the expropriation of Manotok's land (including the portions herein involved) for resale to tenants under Republic Act 1162.3 By that law,4 "ejectment proceedings against any tenant or occupant of any landed estates or haciendas or lands herein authorized to be expropriated, shall be suspended for a period of two years, upon motion of the defendant, if he pays his current rentals, and such suspension shall continue upon the filing of expropriation proceedings until the final determination of the latter."5 Parenthetically, it may be stated that this Court, in a decision promulgated on July 31, 1964, has ruled that Manotok's said land may not be expropriated under Republic Act 1162, as amended by Republic Act 2342.6 Prior to our decision in the expropriation case, i.e., on July 11, 1960, after hearing the question of rents due and current, respondent City Court Judge Gregorio N. Garcia ordered the suspension of the ejectment proceedings against petitioners Linkod Juane and Ruperto Suga and directed them to pay back and current rentals. On July 23, 1960, a similar order was rendered in the other ejectment case against petitioner Flora Antonio. Respondent Judge Garcia disallowed the appeals lodged by Linkod Juane and Ruperto Suga against the order of July 11, 1960 and by Flora Antonio against that of July 23, 1960. It was at this point that petitioners joined hands and petitioned the Court of First Instance of Manila for mandamus, prohibition and certiorari with a prayer for prohibitory-mandatory injunction questioning the disallowance of their appeals.7 After hearing, Judge Gustavo Victoriano issued the preliminary injunction prayed for. But, on March 17, 1961,

49

Judge Victoriano dismissed the petition because the July 11 and July 23 orders of respondent City Judge Garcia are interlocutory. A last move to reconsider the judgment of Judge Victoriano was denied by respondent Judge Gaudencio Cloribel in his order of January 22, 1962. Meanwhile and with the injunction of the court of first instance out of the way on December 12 and 18, 1961, respondent Judge Garcia heard the two ejectment cases on the merits separately,8 upon notices of hearing dated November 27, 1961. These notices were sent to petitioners' counsel at his address Room 313 Cu Unjieng Building, Dasmarias Street, Manila. But said notices were returned to the court by respondent sheriff because Room 313 was found vacant, closed and locked. Defendants in said ejectment suits (petitioners herein) did not appear on the respective dates of trial. On the same dates, December 12 and 18, 1961, respondent Judge Garcia promulgated two separate judgments ordering petitioners to vacate their respective premises and to pay rentals due. Then, on March 21, 1962, Petitioners lodged with the court of first instance a second petition for certiorari, mandamus and relief from judgment with preliminary injunction contesting the jurisdiction of the City Court of Manila.9 But respondent Judge Jose N. Leuterio of the Court of First Instance of Manila, in his order of April 16, 1962, refused to grant the preliminary injunction prayed for. Two motions for reconsideration of this order failed of their purpose. This paved the way for the issuance of two demolition orders both dated July 30, 1962 by respondent city Judge Garcia in execution of the two judgments aforesaid. Petitioners came to this Court on September 3, 1962 on certiorari and mandamus with prohibitory-mandatory injunction.10 We dismissed said petition.11 Petitioners went to the Court of Appeals for the same purpose. They there prayed, inter alia, for a permanent injunction, declaration of nullity of the July 11 and 23, 1960 orders and the judgments of December 12 and 18, 1961 all of respondent Judge Garcia and for a writ of preliminary injunction to restrain execution of the judgments and the demolition orders. The Court of Appeals, on January 31, 1963, dismissed the petition. Ground: The Court of Appeals had no appellate jurisdiction over the orders and decrees of city courts; consequently, it had no jurisdiction to entertain the petition aforesaid. Motions to reconsider and to amend their petition by including the CFI judges (respondents herein) as respondents therein were summarily rejected by the Court of Appeals. We now come to the case before us. Petitioners seek to annul: (1) the city court orders of July 11 and 23, 1960, (2) the decision of the Court of First Instance of Manila in Civil Case 44339 refusing certiorari to nullify the foregoing orders, (3) the order of the Court of First Instance of Manila in Civil Case 49929 denying petitioners' petition for preliminary injunction to stave off demolition and its refusal to hear and try the merits of the petition for certiorari filed before it, and (4) the Court of Appeals' resolution dismissing their petition for certiorari, mandamus and prohibition. On April 22, 1963, we granted the writ injunction prayed for by petitioners. This Court, on November 19, 1963, allowed Manotok to intervene.

1. As we assess the merits of the petition before us, we find it convenient to first dispose of petitioners' argument that it was wrong both for the city court and the court of first instance to disallow appeal from the orders of July 11 and 23, 1960. Said courts below ruled that these orders were interlocutory and therefore not appealable. We agree. We first go to the nature of these two orders. Since the rate of monthly rentals is disputed, it became necessary for the city court to ascertain "the current rentals," payment of which is required as a condition precedent for the suspension of the ejectment proceedings upon the provisions of Section 5, Republic Act 1162 as amended, and our ruling in Samia vs. Reyes, L-14760, May 31, 1963. The city court's orders of July 11 and 23, 1960 besides ordering suspension of the proceedings also fixed the amount of rentals in arrears as well as the current rentals to be paid by petitioners to Manotok, their lessor. By no stretch of the imagination may the disputed orders be placed in the category of final and appealable. Precisely, those orders were issued in the course of the proceedings for the suspension of the ejectment suits. Suspension itself connotes the idea of work unfinished. Unfinished because the enactment suits at that time had yet to be decided on their merits. The questioned orders did not completely dispose of the controversy. Further court action a substantial one must take place. Said orders then are clearly interlocutory. No appeal lies therefrom.12 More to this. The ejectment litigations were only finally decided by the city court in its judgments on the merits of December 12 and 18, 1961. The orders of July 11 and 23, 1960 being interlocutory and therefore unappealable rejection of the appeal both by the city court and the court of first instance was proper. 2. Petitioners seek annulment of the city court judgments of December 12 and 18, 1961. They gripe that their counsel did not receive notices of trial in the two ejectment cases. We do not go along with petitioners. There is no question that the address of record of counsel for petitioners, Atty. Ruperto Suga, is Room 313 Cu Unjieng Building, Dasmarias Street, Manila. Respondent sheriff tried to serve said notices of trial at the address just mentioned. He found the room vacant, closed and locked. So, the notices were unserved. This is a situation brought about by the negligence of counsel. He did not inform the court of his change of address. It is a duty incumbent upon him to do so.13 The time has come, we believe, for this Court to remind the members of the Bar that it is their inescapable duty to make of record their correct address in all cases in which they are counsel for a suitor. For, instances there have been in the past when, because of failure to inform the court of the change of address, litigations were delayed. And this, not to speak of inconvenience caused the other parties and the court. Worse still, litigants have lost their cases in court because of such negligence on the part of their counsel. It is painful enough for a litigant to suffer a setback in a legal battle. It is doubly painful if defeat is occasioned by his attorney's failure to receive notice because the latter has changed the place of his law office without giving the proper notice therefor. It is only when some such situation comes about that the negligent lawyer comes to realize the grave responsibility that he has incurred both to his client and to the cause of justice. It is then that the lawyer is reminded that in his oath of office he solemnly declared that he "will

50

conduct" himself "as a lawyer according to the best of his knowledge and discretion." Too late. Experience indeed is a good teacher. To a lawyer, though, it could prove very expensive. 3. The considerations just adverted to deter us from nullifying the judgments of the city court of December 12 and 18, 1961 in the ejectment cases. Clearly, there was no abuse of discretion on the part of the city court. Of no importance is petitioners' charge that respondent city judge had personal knowledge of Suga's change of address. It has no basis in fact. His petition for certiorari in Civil Case 44339, CFI, Manila, does not reflect the new address, as Suga claims. Anyway, notices of hearing are ordinarily taken care of by clerks, who are naturally guided by addresses of record. To require the judge himself to look after the simple ministerial function of sending notices is to add another burden to an already heavily burdened position. Opportunity to be heard was given. Petitioners lost that opportunity because of their lawyer's negligence. There was due process. The city court had juristdiction to decide the case. Certiorari to annul said judgments filed with the Court of Appeals on behalf of said petitioners will not prosper. Neither will a plea for the other extraordinary writs. At any rate, certiorari or similar writs may not issue from the Court of Appeals. For, the Court of Appeals does not have jurisdiction. In Philippine Products Co. vs. The Court of Appeals,14 we ruled that by statute the Court of Appeals may only issue a writ of certiorari and similar writs in aid of its appellate jurisdiction. That is to say, if the main case is appealable to the Court of Appeals, a special civil action for certiorari on a matter incidental thereto may be brought to said court. The main cases here are for ejectment. The city court's judgments in said cases are appealable to the Court of First Instance, not to the Court of Appeals. Petitioners' belated attempt after dismissal of their case by the Court of Appeals to include as party respondents in the Court of Appeals the judges of the Court of First Instance of Manila here involved does not change the picture. It is enough to say once again that those judges committed no abuse of discretion. Accordingly, there is no infirmity in the Court of Appeals' decision dismissing petitioners' petition therein. The net result of all the foregoing is that no error exists in any of the proceedings taken by respondents which would call for the exercise of this Court's supervisory powers. ACCORDINGLY, the petition for certiorari, prohibition and mandamus herein is hereby dismissed; and, in consequence, the writ of preliminary injunction heretofore issued is dissolved. Costs against petitioners. So ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Castro, Angeles, Fernando and Capistrano, JJ., concur. Zaldivar, J., is on official leave.

G.R. No. L-34334 May 12, 1972 1972)

(45

SCRA

1,

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARIANO TIGULO and PACIFICO VELASQUEZ, defendants-appellants, CRISPULO S. ESGUERRA, respondent. RESOLUTION FERNANDO, J.:p Respondent Crispulo S. Esguerra, a member of the Philippine Bar and counsel de parte of one of the appellants, Pacifico Velasquez, was, by virtue of our resolution of March 10, 1972, required to explain within ten days from notice thereof his failure to file his brief for such appellant. His explanation came in a pleading filed on April 6, 1972, worded thus: "That he is the counsel for Pacifico Velasquez, who is bound to file his brief before the Honorable Court in view of the appeal of defendant-appellant from the decision of the Court of First Instance of Nueva Ecija dated June 23, 1971 and now forms part of the records of the case; That he failed to file the required brief on time in view of the fact that when he received the notice to file brief, he conferred with the family of the defendant-appellant Pacifico Velasquez, particularly his brother in law Paterno Caaveral who manifested that they are no longer interested in pursuing the appeal; That when informed of their decision, the undersigned counsel immediately prepared a 'Notice to Withdraw Appeal' [copy attached as Annex A], dated February 8, 1972 and requested Paterno Caaveral to have the same mailed to the Honorable Supreme Court and the Solicitor General; however, it was only on March 2, 1972 that I came to know that the same was not mailed because the parents of Pacifico Velasquez changed their mind and after conferring with Atty. Cesar Francisco decided to adopt the brief of defendant-appellant Mariano Tigulo as the same brief of Pacifica Velasquez in pursuing their appeal; That it was to my surprise to know that the Motion to Withdraw Appeal dated February 8, 1972 was not filed on time so, after knowing of their decision to continue their appeal, this representation immediately prepared a 'Manifestation' dated March 6, 1972 and mailed on March 7, 1972, a copy of which was sent to the Office of the Solicitor General, Manila [copy attached as Annex B], and copy of the brief of Mariano Tigulo adopted by Pacifico Velasquez [copy attached as Annex C]; That the undersigned counsel with all sincerity and candidness has no intention whatsoever to evade his sworn duty to his clients and to the Honorable Court, and if ever there was a delay in complying with the orders of the Honorable Court it was not of his own making but due to the inadvertence of members of the family of his client as hereto attested by an affidavit of Paterno Caaveral [copy attached as Annex D]." 1 Such an affidavit is worded thus: "That I am the brother in law of defendant-appellant, Pacifico Velasquez in G.R. No. L-34334 now pending appeal before the Honorable Supreme Court and that I am the one directly dealing with his counsel in connection with the instant case; That immediately upon receipt of notice to file brief, Atty. Crispulo S. Esguerra of San Jose City notified me about the necessity of filing the same, so I contacted the family of [Pacifico Velasquez] and after conferring with the defendant-appellant, we have decided not to continue with this appeal, so I relayed the information to Atty. Crispulo S. Esguerra, who prepared a Motion to Withdraw Appeal dated February 8, 1972 and requested me to mail the same, however, I failed to mail the

15

51

same in view of another development when I informed the parents of Pacifico Velasquez about the said motion and asked me to delay the mailing of the same until they have contacted Atty. Cesar Francisco, counsel for Mariano Tigulo; That it was only on March 2, 1972 that I informed Atty. Crispulo S. Esguerra that I have not mailed the motion to withdraw appeal and that the parents of P. Velasquez had finally decided to continue with the appeal and are adopting the brief for Mariano Tigulo as the brief for Pacifico Velasquez; That I am executing this affidavit to attest to the fact that Atty. Crispulo S. Esguerra has not slept on the rights of his client and neither is he negligent in the performance of his duty to the Honorable Court and that if ever there was a delay in complying with the orders of the Honorable Court, it was our own making and not that of the counsel of Pacifico Velasquez." 2 The above explanation is far from satisfactory. Respondent Esguerra cannot, by virtue thereof, be exculpated. The effort of respondent to escape from any disciplinary action as set forth in the aforesaid explanation, sought to be bolstered by an affidavit of a kinsman of appellant Velasquez, is far from persuasive. Even if full credence be paid to what was asserted by him, still indications of negligence on his part are not lacking. Considering the serious offense with which his client is charged and the notice to him to file the appellant's brief, he was expected to apprise this Court of any development that would discharge him from such an obligation. All the while through, he kept this Court in the dark as to the alleged decision reached by the family of appellant Velasquez not to pursue the appeal and of its apparent change of mind reflected in its acceptance of the brief for his co-appellant Tigulo as sufficing to set forth his side of the case and possibly to obtain a reversal of the judgment of conviction. It was not enough for him to assert that certain pleadings were prepared. It was incumbent upon him to take the necessary steps to file them. That he failed to do. All the while, this Court was kept in the dark as to such alleged later developments. That was clearly negligence on his part for which he should be held accountable. Nor is this all. What is worse is that respondent Esguerra in patent violation of the obligation a lawyer owes his client did not even bother to communicate with his client on such an important matter as the withdrawal of an appeal with all the adverse consequences it entails and the equally significant decision allegedly reached by the family that instead of not pursuing the appeal, the brief for a co-accused would be adopted to set forth his defense. Had respondent Esguerra done so, he would have been aware that as far back as February 21, 1972, appellant Velasquez wrote the Clerk of this Court imploring that a counsel de oficio be appointed for him as he was too poor to employ his own lawyer. This request he repeated in a hand-written note dated March 17, 1972. Such counsel de oficio, Attorney Bernabe C. Cabico, was designated to defend appellant Velasquez and given the usual notice of thirty days within which to file his brief. The above notwithstanding, respondent Esguerra in his explanation of March 28, 1972 would submit as annexes the motion of withdrawal of appeal as counsel for appellant Velasquez with a manifestation of later date to the effect that his client was willing to accept as his own, a brief for a coaccused. This is far, very far, from what is required of a lawyer called upon to defend with earnestness and zeal the rights of a client. As above mentioned, respondent Esguerra could have avoided such glaring misrepresentation of what was in his client's mind if he took the trouble to pay him a visit or at least write to him to find out how things stand. This

lack of fidelity to a client's cause was aggravated by his manifestations in the explanation, which could have misled this Court. That such an untoward result was avoided was certainly not due to respondent Esguerra. It would appear that he was completely oblivious of the often repeated pronouncement that the privilege to practice law is one burdened with conditions to assure that the administration of justice be attended to efficiently and well. WHEREFORE, respondent Crispulo S. Esguerra is hereby severely reprimanded and warned that a repetition of such misconduct would be penalized with more severity. Let a copy of this resolution be entered upon his record. Reyes, J.B.L., Makalintal, Zaldivar, Castro, Teehankee, Barredo, Makasiar and Antonio, JJ., concur. Concepcion, C.J., is on leave.

52

16 G.R. No. 131466 November 27, 1998 459, 1998)

(229

SCRA

Cristina Diman, Clarissa Diman, George Diman, Felipe Diman and Florina Diman, petitioners, vs. Hon. Florentino M. Alumbres, Presiding Judge, Regional Trial Court, Las Pias, Branch 255; Heirs of Veronica V. Moreno Lacalle, represented by Jose Moreno Lacalle, respondent. NARVASA, C.J.: The petition for review on certiorari in this case was initially dismissed by Resolution dated January 14, 1998; but after deliberating on petitioners motion for reconsideration dated February 23, 1998, the private respondent comment thereon, the reply to the comment, as well as the record of the case itself, the Court was convinced that the order of dismissal should be reconsidered and the petition reinstated. It accordingly promulgated a resolution to that effect on October 12, 1998, and required "respondent to file their Comment on the petition within ten (10) days from notice **." Notice of the Resolution was duly served on private respondent attorney on October 21, 1998. The latter filed a motion for extension of time of thirty (30) days to file comment, counted from October 31. The Court granted the extension sought, but only for fifteen (15) days. The comment was filed late, on November 20, 1998. Counsel's explanation is that he had sought an extension of 30 days "due to the other volume of legal works similarly situated and school work of the undersigned as professor of law and dean of the University of Manila," and had entertained "the honest belief" that it would be granted. However, he learned belatedly that only a 15-day extension had been conceded. He forthwith completed the comment and filed it, albeit five days late. The Court admits the late comment, but takes this occasion to reiterate the familiar doctrine that no party has a right to an extension of time to comply with an obligation within the period set therefor by law; motions for extension are not granted as a matter of course; their concession lies in the sound discretion of the Court exercised in accordance with the attendant circumstances; the movant is not justified in assuming that the extension sought will be granted, or that it will be granted for the lenght of time suggested by him. It is thus incumbent on any movant for extension to exercise due diligence to inform himself as soon as possible of the Court's action on his motion, by timely inquiry of the Clerk of Court. Should he neglect to do so, he runs the risk of time running out on him, for which he will have nobody but himself to blame. Now, the petition for review on certiorari appends practically all the material pleadings, motions, orders and judgements in the Regional Trial Court and the Court of Appeals. The respondents' comment on the petition has been filed, as just mentioned, and opposes its material averments. There is now no impediment to the adjudication of petitioners' appeal on the merits on the basis of the record as it stands at this time. This, the Court will now proceed to do. In 1991, more that fifty years after the effectivity of the Rules of Court 1 containing provisions relative inter alia to the modes of discovery 2 this Court had occasion to observe that "among far too many lawyers (and not a few judges), there is, if not a regrettable unfamiliarity and even outright

ignorance about the nature, purposes and operation of the modes of discovery, at least a strong yet unreasoned and unreasonable disinclination to resort to them which is a great pity for the intelligent and adequate use of the deposition-discovery procedure, could, as the experience of other jurisdictions convincing demonstrates, effectively shorten the period of ligation and speed up adjudication. 3 The case at bar deals with one of such modes of discovery a request for admission under Rule 26 of the Rules of 1964; more particularly, the legal consequences of the failure to respond thereto in the manner indicated by law. It also treats of other adjective devices to expedite litigation: a summary judgment under Rule 34, 4 and a judgment on demurrer to evidence under Rule 35. 5 Had the principles involved been better understood and more faithfully observed, the case might have been more quickly decided. Actually, there are several adjective tools incorporated in the Rules of Court explicitly designed, like those just mentioned, to abbreviate litigation or abort it at certain stages. Their obvious purpose is to unmask as quickly as may be feasible, and give short shrift to, untenable causes of action or defenses and thus avoid waste of time, effort and money. 5 For reasons yet to be fathomed, these devices seem to be of scant familiarity and of infrequent availment, as above observed, with the result that the salutary objective of the Rules of bringing about a simple, inexpensive and expeditious system of litigation has not been fully achieved. Now, to come to grips with the case. There is no disagreement about the antecedents. The case began in the Regional Trial Court of Las Pinas (Branch 255), where a complaint for "Quieting of Title and Damages" was filed by the Heirs of Veronica V. Moreno Lacalle (represented by Jose Moreno Lacalle) against Cristina Diman, Clarissa Diman, George Diman, Felipe Diman and Florina Diman. 7 In their complaint, the Lacalle heirs claimed that: a) their mother, the late Veronica V. Moreno Lacalle (who died in 1992), was the owner of a "parcel of land situated at Brgy. Pulang Lupa Uno, Las Pias, ** covered by Transfer Certificate of Title No. 273301 of the Registry of Deeds of the Province of Rizal;" b) Veronica Lacalle had acquired the land in 1959 by virtue of a deed of absolute sale, and retained as caretakers the persons she found in occupancy of the lot at the time of the sale, namely: Julian Nario and his wife, Adelaida Legaspi, "with arrangement to share the agricultural fruits" until the former would have need of the property: c) the caretakers of the lot were served with a notice for them to vacate the land (dated November 22, 1994) and an alias writ of demolition (dated June 7, 1994) issued by the Metropolitan Trial Court in Civil Case No. 2619 a case for "ejectment with damages" filed by the Dimans against the Narios, judgment in which, commanding the Narios' ouster, had supposedly been affirmed by the Makati Regional Trial Court (Branch 137); d) neither the deceased Veronica nor any of her heirs had been made parties to said ejectment action; e) the complaint for ejectment contains false assertions, and had caused them injury for which the Dimans should be made to pay damages. In their answer with counterclaim dated February 2, 1995, 8 the Dimans alleged that:

53

a) they are the registered and absolute owners of the land registered in their names under TCT Nos. 90628, 90629 and 58676 (Pasay City), and have no knowledge of the land claimed by the Lacalle Heirs; b) they are entitled to eject from their land the Nario Spouses, who were falsely claiming to be their lessees; c) if the Heirs' theory is that the land in their title, No 273301, is the same as that covered by the Dimans' titles, then said title No. 2733101 is spurious because : (1) no less than three official agencies (i) the Office of the Registrar of Deeds for Rizal and Regional Registrar for Region IV, (ii) the Register of Deeds of Pasay City, and (iii) the Pangasiwaan Pangtalaan ng Lupain (Land Registration Authority) have certified to the absence of any entry in their records concerning TCT No. 273301 covering land with an area of 22,379 square meters in the name of Veronica Vda. de Moreno Lacalle; (2) Decree No. N-11601 explicitly cited as basis by TCT No. 273301 refers to land in Mauban, Ouezon Province, according to the records of the Land Registration Authority: and GLRO Record No. 14978 also expressly mentioned as basis for TCT No. 273301, refers to a registration case heard in Pangasinan; and d) they are entitled to damages on their counterclaim. After joinder of the issues, the Dimans served on the Heirs on February 2, 1995 a REQUEST FOR ADMISSION (dated February 2, 1995) of the truth of the following specified matters of fact, to wit: 9 a) the Heirs' TCT 273301 (Rizal) is not recorded in the Registry of Rizal, or of Pasay City, or of Paraaque, or of Las Pinas; b) the Dimans' transfer certificates of title are all duly registered in their names in Pasay City, as alleged in their answer; c) in the Index Records of Registered Property Owners under Act No. 496 in the Office of the Land Registration Authority, there is no record of any property situated in Las Pias in the name of Veronica Lacalle, more particularly described in TCT 273301; 4) the Heirs cannot produce a certified true copy of TCT 273301: 5) neither Veronica Lacalle nor any of her heirs ever declared the property under TCT 273301 for taxation purposes since its alleged acquisition on February 24, 1959 or since the issuance of said title on August 7, 1959; 6) not a single centavo has been paid by the Heirs as real estate taxes; and 7) no steps have been taken by the Heirs to ascertain the genuineness and authenticity of the conflicting titles. The REQUEST FOR ADMISSION was received by Jose Lacalle himself through registered mail on February 6, 1995, and copy thereof, by the latter's lawyer (Atty. Cesar T. Ching) on February 4, 1995. However, no response whatever was made to the request by Lacalle, his lawyer, or anyone else, despite the lapse of the period therefor fixed by Section 2 of

Rule 26 (not less than ten days after service). The Dimans thereupon filed with the Court a "MANIFESTATION WITH MOTION TO REOUIRE PLAINTIFFS TO ANSWER REQUEST FOR ADMISSION," dated March 28, 1995, 10 giving the Heirs ten (10) more days to file their answer to the request for admission, a copy of which was personally delivered to the latter's lawyer; but again, no response whatever was made. The Dimans then submitted a "MOTION FOR SUMMARY JUDGMENT" dated April 17, 1995. 11 In that motion they drew attention to the Heirs' failure to file any Pre-Trial Brief, and the several instances when the Heirs failed to appear at scheduled hearings resulting in the dismissal of their complaint, which was however later reinstated. They argued that because the Heirs had failed to respond to their REQUEST FOR ADMISSION, each of the matters of which an admission was requested, was deemed admitted pursuant to Section 2, Rule 26. On this basis, and on the basis of the joint affidavit of Clarissa Diman de los Reyes and Florina Diman Tan attached to the motion and substantiating the facts recited in the request for admission the Dimans asserted that no genuine issue existed and prayed that "a summary judgment be entered dismissing the case for lack of merit." The Heirs counsel filed a two-page opposition dated May 15, 1995 12 in which, betraying an unfortunate unfamiliarity with the concept of summary judgments, he asserted inter alia that: In order for defendants (Dimans) to successfully pray for judgment on the pleadings, they have to clearly allege in their permissive counterclaim their cause of action and if the answer of the plaintiffs (Heirs) to such kind of counterclaim admit (sic) it or the answer to the counterclaim is a sham, that is the time for the defendants to move for a judgment summarily. ** ** (D)efendants have no cause of action for praying for summary judgment. It is the plaintiffs who will pray for that and not the defendants. Subsequently, the Dimans submitted a reply dated May 23, 1995; 13 the Heirs, a rejoinder dated June 1, 1995; 14 and the Dimans, a pleading entitled "Exceptions and Comment to Plaintiffs' Rejoinder" dated June 8, 1995. 15 The Trial Court denied the Dimans' motion for summary judgment. In its Order of June 14, 1995, 16 the Court declared that a "perusal of the Complaint and the Answer will clearly show that material issue is raised in that both plaintiffs and defendants claimed ownership over the land in dispute, presenting their respective titles thereto and accused each other of possessing false title to the land." It stressed, citing jurisprudence, that a summary judgment "is not proper where the defendant presented defenses tendering factual issues which call for the presentation of evidence.:" The case proceeded to trial in due course. At its start, the Heirs' counsel, Atty. Michael Moralde, responding to questions of the Court, admitted that his clients did not have the original copy of the title which was the basis for their cause of action, but asserted that they were "still searching" for it since "(i)n every municipality there are several Registry of Deeds." He theorized that the word "'title' ** is a relative term ** (and) does not only refer to a document but refers to ownership. 17 Only Jose Moreno Lacalle gave evidence for the plaintiff Heirs. Like Atty. Moralde, he admitted that he had no copy "of the document which says ** (his) mother is the registered owner;" that the deed of sale was not the only basis for his

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and his co-heirs' claim to the land, but also "a xerox copy of the ** title ** except that ** (he) cannot find the original;" that "maybe" the original was in possession of the person who was his mother's agent in all her transactions, a certain Mr. Lopez, whom he could no longer locate; that he had tried to verify the existence of the title "from the Register of Deeds of Pasig and Pasay" without success; that he had not, however, gone to the Register of Deeds of Paraaque or Las Pias. 18 The Heir's ducumentary evidence consisted of (1) Veronica Lacalle's death certificate, (2) the special power of attorney authorizing Jose Lacalle to act for his brothers and sisters; and (3) the deed of absolute sale purportedly executed by Eusebio Mojica, Clara Mojica, Maria Mojica, Antonia Mojica, Amanda Mojica and Teodora Aranda which deeded over to Veronica Lacalle the "land 'known as Lot 1 PSU-151453,'" but which made no reference to any Torrens title over it. Shortly after the Heirs rested their case, the Dimans filed a "Motion for Judgment on Demurrer to Evidence," dated June 25, 1996. 19 They summarized the Heirs' evidence focusing attention on the Heirs' failure to present "even an unauthenticated photocopy of the title," and the absence of any proof that any proceedings for registration of the land under the Torrens Act had been instituted and emphasized anew said Heirs' implied admissions resulting from their failure to answer their (the Dimans') request therefor as a mode of discovery. On these premises, the Dimans contended that a judgment on demurrer should be rendered, there being no genuine issue between the parties notwithstanding the ostensible conflict of averments in their basic pleadings. The Heirs presented a three-page opposition, dated July 7, 1996. 20 In it their counsel set out the startling contention that "(d)emurrer to evidence is violative to due process as the judgment be rendered without giving the plaintiff the opportunity to cross-examine the defendant," and petulantly inquired, "How could the truth come out without crossexamination of the defendants by the plaintiffs?" particularly, as regards "whether their (the Dimans') title is not fake." Said counsel also posited the amazing notion that "Demurrer to evidence may be correct only in criminal cases as it is the right of the accused to remain silent, and that includes his right to file demurrer for fear of cross-examination. But not in Civil Cases." Once more counsel regrettably exposed his ignorance of quite elementary legal principles. Again, the Dimans' efforts at expediting disposition of the litigation were unsuccessful. By Order dated December 2, 1996, 21 the Trial Court denied their motion to dismiss. Respecting the Heirs' omission to present in evidence any copy (even a photocopy) of TCT No. 273301, the Court remarked that "Not being able to prove the genuineness and authenticity of TCT No. 273301, it being only a mere xerox copy ** (the Heirs) did not formally offer the same in evidence." However, the Court said, the deed of sale of the land in Veronica Lacalle's favor that was submitted instead the "genuineness and authenticity ** (of which had) been fully established" by the certification of the Clerk of Court of the Manila RTC was adequate for the purpose. According to the Court, "(e)xecution of a deed of conveyance in a certain prescribed form gave effect to the transfer of a title to the land conveyed ** (and) without being controverted by any convincing evidence to the contrary can be a sufficient basis in granting the plaintiffs' relief for quieting of their title." The Order passed sub silentio on the quaint contentions in the Heirs' opposition. The Dimans moved for reconsideration under date of January 2, 1997, 22 inter alia (1) alleging that although the

photocopy of TCT 2773301 annexed to the Heirs' complaint states that the "certificate is a transfer from T.C.T. No. 259150" (and this, presumably, would be the vendors' [the Mojicas'] title), no effort whatever was made to submit proof thereof, and (2) reiterating the proposition that the Heirs were bound by their implied admissions under Rule 26. The Dimans also submitted a "SUPPLEMENT TO MOTION FOR RECONSIDERATION" dated January 7, 1997 23 in which they invited attention to the identity of the technical description of the land contained in the deed of sale to Veronica Lacalle and that set out in TCT No. 273301. It must therefore have been Veronica Lacalle, they reasoned, who had instituted the registration proceedings leading to the supposed issuance of said TCT No. 273301. Yet the Heirs failed to present evidence of the record of any such registration proceedings, just as they failed to present evidence of any authentic copy of the title itself. The Heirs filed a one-page "Vehement Opposition **" dated February 15, 1997. 24 Once again they reiterated the astounding argument that the Dimans' "insistence ** (on the demurrer to evidence) is tantamount to suppression of their evidence as they are afraid of cross-examination "! Again the Trial Court rebuffed the Dimans. In its Order of February 28, 1997, 25 the Court ruled that the issues raised in the motion for reconsideration and its supplement had already been passed upon in the Order of December 2, 1996. It then set the case "for the reception of defendants' evidence on April 22, 1997 **. What the Dimans did was to commence a special civil action of certiorari, mandamus and prohibition in the Court of Appeals praying (a) that it set aside the Orders of June 14, 1995 (denying summary judgment), of December 2, 1996 (denying demurrer to evidence), and February 28, 1997 (denying reconsideration); (b) that the Trial Judge be commanded to dismiss the case before it; and (c) that said judge be prohibited from conducting further proceedings in the case. But once again their efforts met with failure. The Appellate Tribunal (Seventh Division) promulgated judgment on September 9, 1997 decreeing that their petition, be "DENIED due course and DISMISSED." The Court of Appeals held that insofar as concerned the Order of June 14, 1995, the petition for its invalidation had not been filed within a reasonable time; and that as regards the Order of December 2, 1996, the remedy of certiorari was improper because: (1) said order was merely interlocutory, (2) any error therein constituted only an error of judgment correctible by appeal, and (3) there was no capriciousness or whimsicality attendant upon the order. The Dimans' motion for reconsideration was later denied by the Court of Appeals by Resolution dated November 5, 1997. 26 The Dimans thereupon filed with this Court a petition for review on certiorari of the Appellate Tribunal's Decision of September 9, 1997. But seemingly consistent with the pattern of judicial misfortune which they had theretofore been traversing, their petition for review was dismissed, by Resolution dated January 14, 1998. Their appeal was however subsequently reinstated, as earlier recounted. Now, what first strikes the Court about the case at bar is the regrettable absence of familiarity, therein laid bare, with the rules of discovery and with the underlying philosophy and principles of the cognate remedy of summary judgment. That resulted in the undue protaction of the present action despite ample demonstration of the absence of any genuine issue

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that is to say, that the issues ostensibly arising from the pleadings were sham or fictitious. A Trial Court has no discretion to determine what the consequences of a party's refusal to allow or make discovery should be; it is the law which makes that determination; and it is grave abuse of discretion for the Court to refuse to recognize and observe the effects of that refusal as mandated by law. Particularly as regards requests for admission under Rule 26 of the Rules of Court, the law ordains that when a party is served with a written request that he admit: (1) the genuineness of any material and relevant document described in and exhibited with the request, or (2) the truth of any material and relevant matter of fact set forth in the request, said party is bound within the period designated in the request, 27 to file and serve on the party requesting the admission a sworn statement either (1) denying specifically the matters of which an admission is requested or (2) setting forth in detail the reason why cannot truthfully either admit or deny those matters. If the party served does not respond with such a sworn statement, each of the matters of which an admission is requested shall be deemed admitted. 28 In this case, the Dimans' request for admission was duly served by registered mail on Jose Lacalle on February 6, 1995, and a copy thereof on his lawyer on February 4, 1995. Neither made any response whatever within the reglementary period. Nor did either of them do so even after receiving copy of the Dimans' "MANIFESTATION WITH MOTION TO REQUIRE PLAINTIFFS TO ANSWER REQUEST FOR ADMISSION," dated March 28, 1995. On account thereof, in legal contemplation, the Heirs impliedly admitted all the facts listed in the request for admission. These plain and simple legal propositions were disregarded by His Honor. It is also the law which determines when a summary judgment is proper. It declares that although the pleadings on their face appear to raise issues of fact e.g., there are denials of, or a conflict in, factual allegations if it is shown by admissions, depositions or affidavits, that those issues are sham, fictitious, or not genuine, or, in the language of the Rules, that "except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 29 the Court shall render a summary judgment for the plaintiff 30 or the defendant. 31 as the case may be. 32 Parenthetically, the existence or appearance of ostensible issues in the pleadings, on the one hand, and their sham or fictitious character, on the other, are what distinguish a proper case for a summary judgment 33 from one for a judgment on the pleadings under Rule 19 of the 1964 Rules. 34 In the latter case, there is no ostensible issue at all, but the absence of any because of the failure of the defendings party's answer to raise an issue. Rule 19 expresses the principle as follows: Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party's pleading, the court may, on motion of that party, direct judgment on such pleading **. 35 On the other hand, in the case of a summary judgment issues apparently exist i.e., facts are asserted in the complaint regarding which there is as yet no admission, disavowal or qualification; or specific denials or affirmative defenses are in truth set out in the answer but the issues thus arising from the pleadings are sham, fictitious, not genuine, as shown by admissions, depositions or

admissions. In other words, as a noted authority remarks, a judgment on the pleadings is a judgment on the facts as pleaded, while a summary judgment is a judgment on the facts as summarily proven by affidavits, depositions or admissions. 36 Another distinction is that while the remedy of a judgment on the pleadings may be sought only by a claimant (one seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief, supra), a summary judgment may be applied for by either a claimant or a defending party. These basic distinctions escaped His Honor. He denied the Dimans' motion for summary judgment in his Order of June 14, 1995, opining that a "perusal of the Complaint and the Answer will clearly show that material issue is raised in that both plaintiffs and defendants claimed ownership over the land in dispute, presenting their respective titles thereto and accused each other of possessing false title to the land." He added, citing cases, that a summary judgment "is not proper where the defendant presented defenses tendering factual issues which call for the presentation of evidence." Such a ratiocination is grossly erroneous. Clearly, the grounds relied on by the Judge are proper for the denial of a motion for judgment on the pleadings as to which the essential question, as already remarked, is: are there issues arising from or generated by the pleadings? but not as regards a motion for summary judgment as to which the crucial question is: issues having been raised by the pleadings, are those issues genuine, or sham or fictitious, as shown by affidavits, depositions or admissions accompanying the application therefor? Errors on principles so clear and fundamental as those herein involved cannot but be deemed so egregious as to constitute grave abuse of discretion, being tantamount to whimsical or capricious exercise of judicial prerogative. When the Heirs closed their evidence as party plaintiffs, and the Dimans moved to dismiss on ground of insufficiency of the Heirs' evidence, the Trial Judge was charged with the duty to assess the evidence to ascertain whether or not "upon the facts and the law the plaintiff(s) ** (have) shown no right to relief." It was in the first place incumbent on His Honor to hold the Heirs bound to their admissions appearing in the record, express and implied. In accordance with Section 2, Rule 26 of the 1964 Rules of Court, the Heirs were impliedly, but no less indubitably, deemed to have admitted the facts on which admissions had been duly requested by reason of their failure to reply thereto. Said Section 2 reads as follows: Sec. 2. Implied admission. Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, which shall not be less than ten (10) days after service thereof, or within such further time as the court may allow on motion and notice, the party to whom the request is directed serves upon the party requestring the admission a sworn statemant either denying specifically the matters on which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters. Objections on the ground of irrelevancy or impropriety of the matter requested shall be promptly submitted to the court for resolution. 37 In determining the chief issue in the case, the Trial Judge should have taken due account of the following circumstances on record and obvious legal propositions: 1) the Heirs' admissions of the following facts, viz.:

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a) the Heirs' TCT 273301 (Rizal) is not recorded in the Registry of Rizal, or of Pasay City, or of Paraaque, or of Las Pias; b) on the other hand, the Dimans' transfer certificates of title are all duly registered in their names in Pasay City; c) there is no record of any property situated in Las Pias in the name of Veronica Lacalle more particularly described in TCT 273301 in the Index Records of Registered Property Owners under Act No. 496 in the Office of the Land Registration Authority; d) the Heirs do not have and cannot produce even a certified true copy of TCT 273301; e) neither Veronica Lacalle nor any of her heirs ever declared the property under TCT 273301 for taxation purposes since its alleged acquisition on February 24, 1959 or since the issuance of said title on August 7, 1959; f) not a single centavo was ever paid by the Heirs as real estate taxes; and g) no steps were ever taken by the Heirs to ascertain the genuineness and authenticity of the conflicting titles. 2) the statement in open Court of the Heirs' own counsel that his clients did not have the original copy of the title, that they were in fact "still searching" for the titless; 38 3) the testimony of Jose Moreno Lacalle that he had no copy "of the document which says ** (his) mother is the registered owner" of the land in question; that he "cannot find the original" which "maybe" was in possession of his mother's agent, a certain Mr. Lopez, whom he could no longer locate: that he had tried to verify the existence of the title "from the Register of Deeds of Pasig and Pasay" without success; that he had not, however, gone to the Register of Deeds of Paraaque or Las Pias; 39 4) that the only document bearing on the issue submitted by the Heirs, the deed of absolute sale purportedly executed by Eusebio Mojica, Clara Mojica, Maria Mojica, Antonia Mojica, Amanda Mojica and Teodora Aranda which deeded over to Veronica Lacalle the "land 'known as Lot 1 PSU-151453,'" but which made no reference to any Torrens title over it was not accompanied by proof of the vendors' ownership of the land in question: 5) that the land subject of the Heirs' action for quieting of title being registered land (being in fact registered in the Dimans' favor), the unregistered deed of sale relied upon by the Heirs cannot and does not affect said land, or bind any third party (including the Dimans) for the reason that, as a matter of law: "** (N)o deed, mortgage, lease or other voluntary instrument, except a will purporting to convey or affect registered land, shall take effect as a conveyance or bind the land, but shall operate only as a contract between the parties and as evidence of authority to the Register of Deeds to make registration;" and it is the "act of registration (that) shall be the operative act to convey or affect the land in so far as third person are concerned," which "registration shall be made in the ** Register of Deeds for the province or city where the land lies. 40 and 6) that there is no proof whatever of the ownership or

character of the rights of the vendors (the Mojicas) over the property purportedly conveyed. In fine, the Heirs had proven nothing whatever to justify a judgment in their favor. They had not presented any copy whatever of the title they wished to be quieted. They had not adduced any proof worthy of the name to establish their precedessors' ownership of the land. On the contrary, their own evidence, from whatever aspect viewed, more than persuasively indicated their lack of title over the land, or the spuriousness of their claim of ownership thereof. The evidence on record could not be interpreted in any other way, and no other conclusion could be drawn therefrom except the unmeritoriousness of the complaint. The case at bar is a classic example of the eminent propriety of a summary judgment, or a judgment on demurrer to evidence. Considering these circumstances, including the outlandish grounds of opposition advanced by the Heirs against the Dimans' motions for summary judgment and for demurrer to evidence, no less than the obviously mistaken grounds cited by the Trial Court for denying said motions, this Court has no hesitation in declaring that it was indeed grave abuse of discretion on the part of the Trial Court to have refused to render a summary judgment or one on demurrer to evidence. In no sense may the Trial Court's errors be considered, as the Court of Appeals did in its judgment of September 9, 1997, as mere errors of judgment correctible by appeal, untarnished by any capriciousness or whimsicality. WHEREFORE, the challenged Decision of the Court of Appeals promulgated on September 9, 1997 is REVERSED and SET ASIDE: the Orders dated July 14, 1996 and December 2, 1996 rendered in the action for "Quieting of Title and Damages" docketed as Civil Case No. 94-3085 of the Regional Trial Court at Las Pias (Branch 255) and entitled "Heirs of Veronica V. Moreno Lacalle, represented by Jose Moreno Lacalle versus Cristina Diman, Clarissa Diman, George Diman, Felipe Diman and Florina Diman" are annulled; and said Civil Case No. 94-3085 is DISMISSED. Costs against private respondents. IT IS SO ORDERED. Romero, Kapunan, Purisima, and Pardo, JJ., concur.

17 A.C. No. 620 March 21, 1974 Mar 21, 1974) (AC No. 620,

JOSE ALCALA and AVELINA IMPERIAL, petitioners,

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vs. HONESTO DE VERA, respondent. MUOZ PALMA, J.:p On May 19, 1964, Jose Alcala (now deceased) and his wife, Avelina Imperial, filed this present petition for disbarment against respondent Honesto de Vera, a practicing attorney of Locsin, Albay, who was retained by them as their counsel in civil case 2478 of the Court of First Instance of Albay, entitled: "Ray Semenchuk vs. Jose Alcala". Complainants charge Atty. Honesto de Vera with gross negligence and malpractice: 1) for having maliciously and deliberately omitted to notify them of the decision in civil case 2478 resulting in the deprivation of their right to appeal from the adverse judgment rendered against them; and 2) for respondent's indifference, disloyalty and lack of interest in petitioners' cause resulting to their damage and prejudice. Respondent attorney, in his answer to these charges, asserted that he notified his clients of the decision in question and that he defended complainants' case to the best of his ability as demanded by the circumstances and that he never showed indifference, lack of interest or disloyalty to their cause. The Solicitor General, to whom this Court referred this case for investigation, report and recommendation, substantially found the following: Civil case 2478 was an action for annulment of a sale of two parcels of land (lots Nos. 1880 and 1883 covered by TCT Nos. T-12392 and 12393 respectively) filed by the vendee, Ray Semenchuk, against the vendors, spouses Alcala, on the ground that lot 1880 "could not be located or did not exist", and for the recovery of damages and attorney's fees. Respondent attorney, whose legal services were engaged by complainants, filed an answer denying the material allegations of the above-mentioned complaint and setting up a counterclaim for the balance of the purchase price of the lots sold, the expenses of notarials, internal revenue, registration, etc. plus damages and attorney's fees. On April 17, 1963, the trial court rendered judgment rescinding the contract of sale, on the ground that the vendee Semenchuk was not able to take material possession of lot 1880 it being in the possession of a certain Ruperto Ludovice and his brothers who have been occupying the land for a number of years. The dispositive portion of the judgment reads: WHEREFORE, judgment is hereby rendered: (a) Declaring the deed of sale (Exhibit A) rescinded; (b) Directing the plaintiff to deliver to the defendants the possession of lot No. 1883. (c) Ordering the defendants to return to the plaintiff the sum of P1,000.00 after deducting the amount of P250.00 which is the consideration in the deed of sale of Lot No. 185; and (d) Without pronouncement as to costs. (p. 11, rollo) On April 19, 1963, respondent Atty. de Vera received a copy of the decision but he failed to inform his clients of the judgment against them. On July 17, 1963, a sheriff came to complainants' house to serve a writ of execution issued in said case. Totally caught by surprise, Jose Alcala

immediately wrote to the trial court and inquired for the status of case 2478. The deputy Clerk of Court, in his reply dated July 22, 1963, informed Alcala that the case was decided on April 17, 1963, that a copy of the decision was received by respondent attorney on April 19, 1963, and that since no appeal was taken, a writ of execution was issued by the trial court on motion of the plaintiff Semenchuk. On September 12, 1963, spouses Alcala instituted civil case 2723 for damages against Atty. Honesto de Vera for having failed to inform them of the decision in case 2478 as a result of which they lost their right to appeal from said decision. The trial court that heard case 2723 found for a fact that respondent did not inform his clients of the decision rendered in case 2478; however, it denied damages for lack of proof that the spouses Alcala suffered any damage as a result of respondent's failure to notify them of the aforesaid decision. The judgment in case 2723 was appealed to the Court of Appeals 1 by respondent herein but the same was affirmed by said appellate court. Not content with having filed case 2723, complainants instituted this complaint for disbarment against their former counsel. 1. "Indifference, loyalty, and lack of interest" of respondent in the handling of complainants' defense in civil case 2478. The basis of this particular charge is the alleged failure of Atty. de Vera to present at the trial of case 2478 certain documents which according to the complainants could have proven that lot 1880 actually existed, to wit: a sketch of lot 1880 prepared by the vendee, Semenchuk, himself (Exh. LAdm. Case); technical description of lot 1880 taken from complainants' certificate of title (Exh. M-Adm. Case); sketch plan of lot 1880 in relation to the adjoining lots prepared by surveyor Miguel N. Romero (Exh. N-Adm Case); a receipt for P10.00 issued by surveyor Romero for the preparation of the sketch, Exh. N (Exh. O-Adm. Case) all of which documents were turned over by Jose Alcala to respondent before the trial of case 2478. We agree with the Solicitor General that there is no merit to this particular charge. The records of case 2478 show that upon agreement of the parties and their attorneys, the trial court appointed a commissioner to relocate lot 1880 and after conducting such relocation, the commissioner reported to the Court that the lot existed, but that the same was in the possession of other persons. Inasmuch as the existence of lot 1880 had already been verified by the commissioner, it was therefore unnecessary for respondent attorney to introduce in evidence Exhibits "L", "M", "N", and "O", the purpose of which was merely to prove the existence of said lot. If the complaint for rescission prospered it was because of complainant Alcala's failure to comply with his obligation of transferring the material or physical possession of lot 1880 to the vendee and for no other reason; hence, complainants had nobody to blame but themselves. The fact that the plaintiff, Semenchuk, was not awarded any damages, attorney's fees, and costs shows that respondent attorney exerted his utmost to resist plaintiff's complaint. 2. Gross negligence and malpractice committed by respondent for failure to inform his clients of the decision in case 2478: The matter in dispute with respect to this specific charge is whether or not respondent notified his clients, the complainants herein, about the decision in case 2478.

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Respondent claims that he did inform his clients of the decision; complainants insist the contrary. We agree with the Solicitor General that there is sufficient evidence on hand to prove that respondent neglected to acquaint his clients of the decision in case 2478. As stated in the Solicitor General's report, the reaction of complainant Jose Alcala when the writ of execution in said civil case was served upon him and his wife by a sheriff was such that it betrayed a total unawareness of the adverse decision. The evidence shows that when he was told about the sheriff's visit, Jose Alcala immediately inquired from the trial Court the reason for the writ of execution and it was only then that he was informed that a decision had been rendered, that his lawyer received a copy thereof since April 19, 1963, and because no appeal was taken the judgment became final and executory. Alcala then sought the help of his brother, Atty. Ernesto Alcala, in Manila and the latter wrote to respondent inquiring as to what steps were taken, if any, to prosecute an appeal from the decision in question but respondent chose not to answer the letter. Thereafter, Alcala instituted an action for damages and filed the instant complaint for disbarment. As aptly observed by the Solicitor General: Again, we do not think petitioner Alcala would have felt so aggrieved and embittered by the loss of his right to appeal the decision in Civil Case No. 2478 so as to take all these legal steps against respondent, with all the attendant trouble and expense in doing so, if it is not true, as he alleged, that the latter indeed did not notify him of said decision. We believe and so submit, therefore, that respondent really failed to inform petitioners of the decision in Civil Case No. 2478, and this was also the finding made by the Court of First Instance of Albay in its decision in Civil Case No. 2723 for damages filed by petitioners against respondent, and by the Court of Appeals in the appeal taken by respondent from said decision. (pp. 38-39, rollo) Is respondent's failure to notify his clients of the decision sufficient cause for his disbarment? Complainants answer the question in the affirmative, while on the other hand, respondent prays that he be exonerated because, according to him, granting arguendo that he failed to inform the complainants about the decision, the truth is that said decision was fair and just and no damage was caused to complainants by reason thereof. On this point, We agree with the following appraisal of the evidence by the Solicitor General: In this connection, it is indeed true that although both the Court of First Instance of Albay, in Civil Case No. 2723 for damages filed by petitioners against respondent Atty. De Vera (pp. 30-34, Exh. "D", id.), and the Court of Appeals, in C.A.-G.R. No. 35267-R (the appeal taken by respondent from the decision of the trial court in C.C. No. 2723), found that respondent actually did not inform petitioners of the decision in Civil Case No. 2478, still both courts also held that petitioners did not sustain any damages as a result of said decision, for which reason the trial court dismissed petitioners' action for damages against respondent, which dismissal was affirmed by the Court of Appeals. We quote the finding of the Court of First Instance of Albay in its decision in Civil Case No. 2723 in this regard: The second issue that has to be passed upon by the Court is neither the plaintiffs are entitled to damages. On this issue, the Court finds that the plaintiffs cannot recover damages

from defendant Atty. Honesto de Vera. No evidence has been presented that they sustained damages of the decision. Neither it has been shown that the decision is not supported by the facts and the law applicable to the case. Consequently, the plaintiffs are not entitled to damages because of the failure of Atty. Honesto de Vera to inform them of the decision. "An attorney is not bound to exercise extraordinary diligence, but only a reasonable degree of care and skill, having reference to the character of the business he undertakes to do. Fallible like any other human being, he is answerable to every error or mistake, and will be protected as long as he acts honestly and in good faith to the best of his skill and knowledge. Moreover, a party seeking damages resulting from a judgment adverse to him which became final by reason of the alleged fault or negligence of his lawyer must prove his loss due to the injustice of the decision. He cannot base his action on the unsubstantiated and arbitrary supposition of the injustice of the decision. (Tuzon vs. Donato, 58 O.G. 6480)." (Exh. "D", id.; pp. 33-34) Significantly, petitioners did not appeal from the above decision, which is an implied acceptance by them of the correctness of the findings therein. Instead, it was respondent Atty. De Vera who appealed said decision to the Court of Appeals (C.A.-G.R. No. 35267-R), and the latter Court, although agreeing with the finding of the trial court that respondent really did not inform petitioners of the decision in Civil Case No. 2478 (Exh. "T"), affirmed, however, the lower court's finding that petitioners were not entitled to the damages claimed by them by reason of respondent's failure to notify them of the decision in Civil Case No. 2478. ... While the rule of res judicata in civil or criminal cases is not, strictly speaking, applicable in disbarment proceedings, which is neither a civil or a criminal proceeding intended to punish a lawyer or afford redress to private grievances but is a proceeding sui generis intended to safeguard the administration of justice by removing from the legal profession a person who has proved himself unfit to exercise such trust (p. 207, Martin, Legal and Judicial Ethics; Re Keenan, 86 ALR 679; De Jesus-Paras vs. Vailoces, Adm. Case No. 439, April 12, 1961; In re Montague & Dominguez, 3 Phil. 577, 588), still we consider the findings of the trial court as well as of the Court of Appeals in the damage, suit filed by petitioners against respondent Atty. De Vera based on the same grounds now invoked in this disbarment case relevant and highly persuasive in this case, especially as petitioners themselves have, as already observed, accepted and admitted the correctness of said findings. And we may add that we ourselves agree with respondent that petitioners had not been prejudiced or damaged in any way by the decision in Civil Case No. 2478, but that said decision appears in fact to be more favorable to them than could have been the case if the trial court had applied the law strictly against them in said case, ... (pp. 17-19, Report. pp. 39-41, rollo; emphasis supplied). The Solicitor General's Report continues and says: True it is that petitioners do not appear to have suffered any material or pecuniary damage by the failure of respondent Atty. De Vera to notify them of the decision in Civil Case No. 2478. It is no less true, however, that in failing to inform his clients, the petitioners, of the decision in said civil case, respondent failed to exercise "such skill, care, and diligence as men of the legal profession commonly possess and exercise in such matters of professional employment" (7 C.J.S. 979). The relationship of lawyer-client being one of

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confidence, there is ever present the need for the client's being adequately and fully informed and should not be left in the dark as to the mode and manner in which his interests are being defended. It is only thus that their faith in counsel may remain unimpaired (Oparel, Sr. vs. Aberia Adm. Case No. 595, July 30, 1971). As it happened in this case, because of respondent's failure to notify petitioners of the decision in Civil Case No. 2478, the latter were entirely caught by surprise, resulting in shock and mental and emotional disturbance to them, when the sheriff suddenly showed up in their home with a writ of execution of a judgment that they never knew had been rendered in the case, since their lawyer, the respondent, had totally failed to inform them about the same. ... (pp. 23-24, Report, pp. 4546, rollo; emphasis supplied). We concur with the above-quoted observations and add that the correctness of the decision in case 2478 is no ground for exonerating respondent of the charge but at most will serve only to mitigate his liability. While there is no finding of malice, deceit, or deliberate intent to cause damage to his clients, there is, nonetheless, proof of negligence, inattention, and carelessness on the part of respondent in his failure to give timely notice of the decision in question. Fortunately for respondent, his negligence did not result in any material or pecuniary damage to the herein complainants and for this reason We are not disposed to impose upon him what may be considered in a lawyer's career as the extreme penalty of disbarment. As stated in the very early case of In Re Macdougall: The disbarment of an attorney is not intended as a punishment, but is rather intended to protect the administration of justice by requiring that those who exercise this important function shall be competent, honorable, and reliable; men in whom courts and clients may repose confidence. This purpose should be borne in mind in the exercise of disbarment, and the power should be exercised with that caution which the serious consequences of the action involves. The profession of an attorney is acquired after long and laborious study. It is a lifetime profession. By years of patience, zeal, and ability, the attorney may have acquired a fixed means of support for himself and family of great pecuniary value, and the deprivation of which would result in irreparable injury. (3 Phil. 70, 77-78) In the words of former Chief Justice Marshall of the United States Court: On one hand, the profession of an attorney is of great importance to an individual and the prosperity of his whole life may depend on its exercise. The right to exercise it ought not to be lightly or capriciously taken from him. On the other, it is extremely that the respectability of the bar should be maintained and that its harmony with the bench should be preserved. For these objects, some controlling power, some discretion, ought to reside in the Court. This discretion, ought to be exercised with great moderation and judgment; but it must be exercised. (Ex parte Burr. 9 Wheat 529; Martin, Legal & Judicial Ethics 1972 Ed. p. 213.) Although respondent's negligence does not warrant disbarment or suspension under the circumstances of the case, nonetheless it cannot escape a rebuke from Us as we hereby rebuke and censure him, considering that his failure to notify his clients of the decision in question manifests a lack of total dedication or devotion to their interest expected of him under his lawyer's oath and the Canons of Professional Ethics. Respondent's inaction merits a severe

censure from the Court. WHEREFORE, on the basis of the evidence, the report and recommendation of the Solicitor General, and the fact that this appears to be the first misconduct of respondent in the exercise of his legal profession, We hereby hold said respondent GUILTY only of simple negligence in the performance of his duties as a lawyer of complainants, and We hereby SEVERELY CENSURE him. Let this decision be noted in respondent's record as a member of the Bar in this Court. SO ORDERED. Makalintal, C.J., Zaldivar, Castro, Fernando, Teehankee, Barredo, Makasiar, Antonio, Esguerra, Fernandez and Aquino, JJ., concur.

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18 G.R. No. L-34369 September 30, 1974 SCRA 120, 1974)

(60

ANTONIO VILLASIS, MATERNIDAD V. VILLASIS and SANTIAGO ORENDAIN, petitioners, vs. HONORABLE COURT OF APPEALS, ELEUTERIO VILLASIS and LAURA S. VILLASIS, respondents. Augusto A. Kimpo for petitioners. Silvestre Untaran, Jr. for respondents. TEEHANKEE, J.:p The Court in dismissing the petition and affirming the appellate court's dismissal of petitioners-appellants' appeal for failure to file appellants' brief finds that petitioners have shown no valid and justifiable reason for their inexplicable failure to file their brief and have only themselves to blame for their counsel's utter inaction and gross indifference and neglect in not having filed their brief for a year since receipt of due notice to file the same. The case originated in the Antique court of first instance where after due trial judgment was rendered in favor of respondents-plaintiffs upholding their action for quieting of title with recovery of possession and damages. Petitioners-defendants appealed the adverse judgment to the Court of Appeals. On June 25, 1970, petitioners as appellants received notice through their counsel Benjamin M. Valente to submit the appellants' brief within the reglementary forty-five day period to expire on August 9, 1970. On August 10, 1970 (the last day of the reglementary period, August 9 being a Sunday), petitioners' counsel, Atty. Valente, filed a motion to withdraw as counsel due to his having been employed as technical assistant in the Supreme Court, with a prayer that appellants' newly engaged counsel be given sufficient time to file their brief. Said new counsel, Atty. Esdras F. Tayco, filed on August 18, 1970 his appearance with the appellate court. On August 27, 1970, the appellate court received respondents-appellees' motion to dismiss the appeal dated August 5, 1970 for appellants' failure to file their brief within the reglementary period. On September 12, 1970, the appellate court required both counsels of appellants, Atty. Valente (whose withdrawal it held in abeyance until he filed a proper motion in verified form with the signed conformity of the clients as per its resolution of August 18, 1970) and Atty. Tayco to comment on the dismissal motion. Withdrawing counsel Valente filed his manifestation dated September 28, 1970 alleging inter alia that he had not received a copy of the dismissal motion and could not therefore comment thereon and submitting therewith the signed conformity of his clients to his withdrawal and reiterating his prayer for the court to grant his withdrawal and to grant appellants sufficient time to file their brief. New counsel Tayco filed no comment whatsoever. The appellate court granted withdrawing counsel's motion to withdraw per its resolution of October 9, 1970 but meanwhile issued no resolution on the appellees' motion to dismiss the appeal.

On June 25, 1971 or after the lapse of more than eleven (11 months or to be more exact, 319 days) without appellants having filed their brief at all, the appellate court's special sixth division 1 issued its resolution granting the dismissal motion and dismissing the appeal on the ground stated by appellees in their motion that appellants had failed to file their brief within the reglementary 45-day period. It was only then that new counsel Tayco apparently stirred from almost a year of inaction and filed a motion dated July 13, 1971 for reconsideration of the dismissal of the appeal on the ground that he as new counsel had not received the notice to file brief. The appellate court per its resolution of August 17, 1971 denied the motion for reconsideration, pointing out that "Attorney Tayco's appearance was entered [on August 18, 1970] after the period for filing brief had already expired [on August 10, 1970]." 2 New counsel Tayco filed a second motion for reconsideration on September 10, 1971 still without having filed appellants, brief, which the appellate court 3 denied per its resolution of October 6, 1971. Hence, the present appeal by certiorari wherein petitioners are represented by their third counsel, Atty. Augusto A. Kimpo vice Atty. Tayco. The appeal is patently without merit. New counsel Tayco's claim in his motion for reconsideration that he had not received the notice to file brief borders on the frivolous. Such notice to file brief had been received by his predecessor-counsel Atty. Valente and is binding on him as the successor. A new counsel who accepts a case in midstream is presumed and obliged to acquaint himself with all the antecedent processes and proceedings that have transpired in the record prior to his takeover. It is noteworthy that Atty. Tayco makes no claim that he was unaware that notice to file brief had been duly served on Atty. Valente and that the period would expire on August 10, 1970 and that Atty. Valente had asked in his two withdrawal motions that he (Tayco) as new counsel be granted "sufficient time" to file the brief. Here the notice to file the brief had been received on June 25, 1970 to expire on August 10, 1970. The appellate court did not dismiss the appeal at appellees' instance for failure of appellants to file brief until one year later as per its resolution of June 25, 1971 or until almost eleven months after the expiration of the reglementary period on August 10, 1970. The appellate court gave appellants all the time and opportunity to duly prosecute their appeal by filing their brief in the interval to no avail. It asked both counsels per its resolution of September 12, 1970 (which in effect granted appellants the sufficient time asked by Atty. Valente in his withdrawal motion to file their brief) to comment on the dismissal motion but withdrawing counsel Valente claimed he could not file any comment as he had not received the motion while new counsel Tayco ignored the court's resolution and filed no comment and filed no brief! Even going by new counsel Tayco's mistaken notion that he was entitled to a new notice to file brief, the appellate court's resolution of September 12, 1970 requiring his comment on the motion to dismiss appeal for failure to file appellant's brief was tantamount to such notice and he should then have prepared and filed the brief within forty-five days thereafter. But as already pointed out, he never filed the appellants' brief during the interval of almost 11 months that the appellate

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court took before it finally dismissed the appeal per its resolution of June 25, 1971. During all this period and even during the three months that followed when he filed two motions for reconsideration, he presented no earnest of prosecuting the appeal by at least filing the brief even at that late date but contented himself with a perfunctory prayer in his motion that "appellants be allowed to file their brief."! The appellate court committed no error therefore in dismissing the appeal. Petitioners-appellants have shown no valid and justifiable reason for their inexplicable failure to file their brief and have only themselves to blame for their counsel's utter inaction and grow indifference and neglect in not having filed their brief for a year since receipt of due notice to file the same. They could not even claim ignorance of the appellate court's notice to file brief since it had required withdrawing counsel Valente to secure their written conformity before granting his withdrawal as counsel, and certainly they must have ascertained from him as well as new counsel the status of their appeal which accounts for Atty. Valente's repeated prayers in his two motions for withdrawal for the granting of sufficient time for new counsel to file the brief. They had almost a year thereafter to make sure that their new counsel did attend to their appeal and did file the brief. The case of Alonso vs. Rosario 4 cited by petitioners is clearly inapplicable. There, appellants had filed an opposition to the motion to dismiss their appeal (filed by appellee just five days after the notice to file brief was served) asking that they be allowed to file the brief after notice of denial of the motion, and when the appellate court denied both the dismissal and the extension, they moved for reconsideration and for at least 15 days to file their brief, but the court therein both denied reconsideration and dismissed the appeal as well for failure to file brief within the reglementary period. Within five (5) days of such dismissal, appellants nevertheless filed their brief. This Court in reinstating the appeal held that "the period consumed during the pendency of the motion to dismiss should be excluded from the period given to petitioners to submit their brief, and if this is done, the brief submitted by them on April 17, 1957 may be deemed presented in due time." It is manifest that there are two basic differences in this case: here, the motion to dismiss the appeal was filed precisely on the ground of failure to file the brief after the expiration of the 45-day reglementary period and no question of suspension of the period arises, whereas there, the appellee questioned appellants' right to appeal when only 5 days of their 45-day period had elapsed such that the rule 5 that a motion to dismiss "interrupts the time to plea" was applied by this Court by analogy; and here, petitioners-appellants never filed their brief while there appellants immediately filed their brief within 5 days of notice of dismissal of their appeal. It may parenthetically be noted that aside from petitioners' bare assertion of merit in their appeal, the Court has not been shown that to reinstate the appeal would serve any purpose and not just be a futile waste of time, since petitioners have never submitted their brief nor their proposed assignment of errors against the trial court's verdict. To cap it all, petitioners in praying for a reversal of the appellate court's dismissal of their appeal, pray that they be given an extension of fifteen (15) days from notice of the decision within which to file the appellants' brief (at last!). Such laches and lassitude on their part serve but to confirm the correctness of the appellate court's dismissal of their appeal. ACCORDINGLY, the petition at bar is dismissed with costs

against petitioners. Makalintal, C.J., Castro, Esguerra and Muoz Palma, JJ., concur. Makasiar, J., is on leave.

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G.R. Nos. 131384-87 SCRA 490, 2000)

19 February 2, 2000

(324

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ELEGIO NADERA, JR. Y SADSAD, accused-appellant. MENDOZA, J.: These cases are before us on automatic review of the decision of the Regional Trial Court, Branch 40, Calapan, Oriental Mindoro, finding accused-appellant Elegio Nadera, Jr. guilty of four counts of rape of his minor daughters, Oleby and Maricris Nadera, and sentencing him to suffer the penalty of reclusion perpetua for one count of rape and death for each of the remaining three counts. Accused-appellant was also ordered to indemnify complainants Oleby Nadera in the amount of P150,000.00 and Maricris Nadera in the amount of P50,000.00, without subsidiary imprisonment in case of insolvency. Reversal of the decision is sought on the sole ground that THE TRIAL COURT GRAVELY ERRED IN ACCEPTING ACCUSED-APPELLANT'S IMPROVIDENT PLEA OF GUILTY TO A CAPITAL OFFENSE AND IN FAILING TO CONDUCT A SEARCHING INQUIRY TO DETERMINE WHETHER THE ACCUSED FULLY UNDERSTOOD THE CONSEQUENCE OF HIS PLEA.1 The facts are as follows: Accused-appellant Elegio Nadera, Jr. has four children by his wife Daisy, namely: Oleby, born on October 2, 1982; Maricris, born on March 16, 1984; March Anthony, born on January 8, 1986; and Sherilyn, born on September 27, 1987.2 On September 22, 1991, Daisy left for a job in Bahrain, and came home to the Philippines for vacation only in July 1993. She then left again for Bahrain in September 1993 and did not return until September 12, 1995.3 On April 28, 1996, Oleby and Maricris, assisted by a neighbor, Lita Macalalad, told their mother that they had been raped by their father, herein accused-appellant. Thereupon, they went to the police authorities of Naujan and filed a complaint against accused-appellant.4 After preliminary examination, on June 6, 1996, four informations charging accused-appellant with rape on various dates were filed in the Regional Trial-Court, Calapan, Oriental Mindoro. In Criminal Case No. C-4982, the information5 alleged

Bayani, Municipality of Naujan, Province of Oriental Mindoro, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, motivated by lust and lewd design, and by means of force and intimidation, wilfully, and unlawfully and feloniously did lie and succeeded in having carnal knowledge with his daughter, OLEBY NADERA, twelve (12) years of age at that time against the latter's will and consent. In Criminal Case No. C-4984, the information7 stated That on or about the 24th day of April, 1995, sometime in the evening, at Barangay Bayani, Municipality of Naujan, Province of Oriental Mindoro, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, motivated by lust and lewd design, and by means of force and intimidation, wilfully, unlawfully and feloniously did lie and succeeded in having carnal knowledge with his daughter, OLEBY NADERA, twelve (12) years of age at that time against the latter's will and consent. In Criminal Case No. C-4985, the information8 recited That on or about the 3rd day of March 1996 at around 8:00 o'clock in the evening, at Barangay Bayani, Municipality of Naujan, Province of Oriental Mindoro, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, motivated by lust and lewd design, and by means of force and intimidation, wilfully, unlawfully and feloniously did lie and succeeded in having carnal knowledge with his daughter, MARICRIS NADERA, eleven (11) years of age against the latter's will and consent. The record shows that at his arraignment on July 23, 1996, accused-appellant, assisted by Atty. Manolo A. Brotonel of the Public Attorney's Office, pleaded not guilty to the charges filed against him.9 However, on August 5, 1997, after the prosecution had presented Dr. Cynthia S. Fesalbon, accused-appellant pleaded guilty to the crime charged in all the informations. The prosecution presented four witnesses, namely: Dr. Cynthia Fesalbon, Oleby Nadera, Maricris Nadera, and Daisy Nadera. Dr. Cynthia S. Fesalbon, Medical Officer IV of the Oriental Mindoro Provincial Hospital, who conducted the medical examination of both complainants, submitted a report on the result of Oleby Nadera's examination as follows:10 PHYSICAL EXAMINATION: No sign of external physical injuries as of time of examination. Breast developed Abdomen: flat, soft non-tender.

That on or about the 17th day of May, 1992, at around10:00 o'clock in the evening, at Barangay Bayani, Municipality of Naujan, Province of Oriental Mindoro, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, motivated by lust and lewd design, and by means of force and intimidation, wilfully, unlawfully and feloniously did lie and succeeded in having carnal knowledge with his daughter, OLEBY NADERA, nine (9) years of age at that time against the latter's will and consent. In Criminal Case No. C-4983, the information6 charged That on or about the 17th day of April, 1995 at Barangay

EXTERNAL GENITALIA. minimal pubic hair Healed incomplete hymenal lacerations at 5, 7, 12 o'clock positions. No bleeding. INTERNAL SPECULUM EXAMINATION Vagina admits 2 fingers with ease.

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 Cervix small, firm, close non-tender (-) bleeding. Uterus not enlarged. Adnexae negative. LABORATORY EXAMINATION: Smear for the presence of spermatozoa revealed positive result. She testified that the hymenal lacerations may have been caused by the insertion hard object, the patient's history of genitalic insertions, a straddle injury, or sitting on hard wood. She could not determine when these lacerations were sustained because they had healed over a period beyond seven days.11 Dr. Fesalbon likewise rendered a report12 on the medical examination of Maricris Nadera, the pertinent parts of which state: PHYSICAL EXAMINATION: No sign of external physical injuries as of time of examination. Abdomen, flat, soft. EXTERNAL GENITALIA: Absence of pubic hair healed hymenal lacerations, incomplete at 1, 5, 8, 11 o'clock positions. INTERNAL EXAMINATION: Vagina admits 1 finger with ease. Cervix small (-) bleeding Uterus not enlarged. Adnexae (-). LABORATORY EXAMINATION Smear for the presence of spermatozoa revealed Negative result. In the case of Maricris Nadera, Dr. Fesalbon explained that the hymenal lacerations could have been caused by penetration such as through instrumentation or insertion of an object inside the vagina. They could also have been caused by the penetration of the penis. Upon inquiry from the court, Dr. Fesalbon stated that the fact that Maricris had more hymenal lacerations than Oleby could be due to the difference in the impact of penetration. She added that the number of times each of the girls had sexual intercourse could not be ascertained merely from the hymenal lacerations, although it could be concluded that an object had been inserted in the vagina.13 Oleby Nadera testified about the rapes committed by her father against her as follows: On May 17, 1992, at around 10 o'clock in the evening, while Daisy was away working as a domestic helper in Bahrain, accused-appellant pulled Oleby, then nine years of age, towards a bed, removed her panties and shorts and ordered her to keep quiet. He then placed himself on top of her and

inserted his penis into her vagina. He proceeded to make an up and down motion while on top of his daughter. All the while, Oleby was crying, pleading with her father, "Huwag po!", Huwag po!" Accused-appellant again ordered Oleby to keep quiet lest her brother and sisters were awakened. Afterwards, accused-appellant told Oleby to put on her panties and shorts and to go to sleep. Oleby went to the bed where her brother and sisters were sleeping and cried.1wphi1.nt On another occasion, on April 17, 1995, accused-appellant sent Sherilyn and Maricris to the sari-sari store while he asked March Anthony to gather firewood. While Oleby was left alone inside their house in Barangay Bayani, Naujan, Oriental Mindoro, accused-appellant again raped her. Oleby was 12 years old at that time. Accused-appellant closed the door and windows, removed Oleby's panties and shorts and sat down. While sitting down, accused-appellant placed Oleby's legs on his thighs and inserted his penis into her vagina. Later on, he told Oleby to put on her panties and shorts and told her to fetch her brother and sisters. Oleby was raped by her father for the third time on April 24, 1995. That evening, she woke up to find her father on top of her, taking off her shorts and panties and inserting his penis into her vagina. As her father was taking off her clothes, Oleby cried and pleaded, "Huwag po! Huwag po!" Instead of desisting, accused-appellant told her to keep quiet so as not to awaken her brother and sisters, and threatened her with harm if she made any noise. Accused-appellant then made a pumping motion, consummating the sexual act with his daughter.14 After Oleby's direct examination had been finished, Atty. Brotonel, accused-appellant's counsel, did not conduct any cross examination on the ground that he was convinced Oleby was telling the truth.15 On that same day, Maricris also testified. She related how she was raped by her father on March 3, 1996, the year before, when she was 11 years old. At about eight o'clock in the evening of said date, while her brother and sisters were sleeping, she was pulled by her father towards his bed and told to lie down. Accused-appellant then placed himself on top of Maricris and inserted his penis into her vagina. Maricris pleaded "Papa, huwag po, maawa naman kayo sa amin." Ignoring his daughter's pleas, accused-appellant continued raping her by making a pumping motion and threatened to kill all of them if she cried. Accused-appellant afterwards asked Maricris to put on her shorts and panties and return to bed. He told Maricris not to cry so as not to awaken her siblings. She did not tell anyone what befell her because she was afraid. A neighbor, named Lita Macalalad, asked her if Oleby had been raped by their father. It turned out Oleby had told her ordeal, to Lita Macalalad while they were washing clothes and talking about Oleby's parents. Oleby also told Lita Macalalad that Maricris had been raped by their father as well, a fact related to Oleby by Maricris.16 Daisy Nadera, accused-appellant's wife, also testified for the prosecution. Her testimony focused on the dates of births of her children and the fact that she was out of the country when the alleged rapes occurred. She testified that she and her daughters filed a complaint for rape against accusedappellant after discovering his hideous acts. Thereafter, her children were subjected to a medical examination.17 On August 12, 1997, the prosecution formally offered its documentary evidence and rested its case thereafter. Accused-appellant did not present any evidence in his

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defense. On August 27, 1997, the trial court rendered judgment finding accused-appellant guilty of four counts of rape against his daughters. The dispositive portion of its decision18 reads: ACCORDINGLY, the Court finds accused Elegio Nadera, Jr., guilty beyond reasonable doubt, as principal, of the crime of Rape [4 counts] with the qualifying circumstance that the victims are under 18 years of age and the offender is a parent. He is hereby sentenced to suffer the penalty of Reclusion Perpetua ranging from 20 years and 1 day to 40 years for the rape committed on May 17, 1992 and three DEATH PENALTIES for the rape committed on April 17 and 24, 1995 and March 3, 1996, together with the accessory penalties provided by law. He is also ordered to indemnify victim Oleby Nadera the total amount of P150,000.00 in Criminal Case Nos. C-4982, C-4983 and C-4984 and Maricris Nadera, the amount of P50,000.00 in Criminal Case No. C-4985, without subsidiary imprisonment in case of insolvency, and to pay the costs. SO ORDERED. As already stated, accused-appellant's lone assignment of error is that the trial court accepted his plea of guilty to a capital offense without making a searching inquiry to determine whether he understood the consequences of his plea. In support of his contention, accused-appellant invokes the ruling in the case of People v. Dayot19 in which this Court ruled that, in criminal cases, the judge must be convinced that the accused, in pleading guilty, is truly guilty. This could be done by requiring him to narrate the events leading to the crime, making him reenact it, or asking him to supply missing details. The judge must satisfy himself that: (1) the accused is voluntarily pleading guilty, and (2) he is truly guilty and there is a rational basis for a finding of guilt based on his testimony. We find merit in accused-appellant's allegations. In addition, we find that there was inadequate representation of his case in court, thus necessitating the remand of this case for further proceedings. I. Rule 116 of the Rules on Criminal Procedure provides: Sec. 3. Plea of guilty to capital offense; reception of evidence. When the accused pleads guilty to a capital offense, the shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and require the prosecution to prove his guilt and the precise degree of culpability. The accused may also present evidence on his behalf. Under this Rule, three things are enjoined upon the trial court when a plea of guilty to a capital offense is entered: (1) the court must conduct a searching inquiry into the voluntariness of the plea and the accused's full comprehension of the consequences thereof; (2) the court must require the prosecution to present evidence to prove the guilt of the accused and the precise degree of his culpability; and, (3) the court must ask the accused if he desires to present evidence on his behalf and allow him to do so if he desires.20 What constitutes a searching inquiry, as explained in People v. Alicando,21 is that the plea of guilt must be based on a free and informed judgment. Hence, a searching inquiry must

focus on: (1) the voluntariness of the plea, and (2) the full comprehension of the consequences of the plea. In the case at bar, the record does not show what exactly transpired at the re-arraignment of accused-appellant, for what reason he changed his plea from "not guilty" to "guilty," and whether he fully understood the consequences of his guilty plea. The only indication in the record that accusedappellant changed his plea to guilty is the Certificates of ReArraignment, dated August 5, 1997, in Criminal Case Nos. C4982 to C-4985.22 On what exactly accused-appellant said in entering his plea of guilty and what exactly he had been told by the trial judge, the records' shed no light. There is thus no evidence to show that accused-appellant's guilty plea was voluntarily made or that he had fully understood the consequences of such plea. In its decision, the trial court described the manner in which the accused pleaded guilty, thus: Upon arraignment, accused, assisted by Atty. Manolo A. Brotonel of the Public Attorney's Office, pleaded not guilty to the crime charged. However, on August 5, 1997, when these cases were called for pre-trial and trial, counsel for the accused manifested that the accused, realizing the futility of entering into trial and considering that he actually committed the acts complained of, intimated his intention to enter a plea of guilty to the above-mentioned charges. The accused was then asked by this Court if he was aware of the consequences of a plea of guilty to a capital offense: that for the rape he committed on May 17, 1992 against his daughter, Oleby Nadera, who was 9 years old at the time, he would be sentenced to reclusion perpetua and for the three other counts of rape committed on April 17 and 24, 1995 [both against Oleby Nadera] and on March 3, 1996 [against Maricris Nadera, 11 years old at the time], he would be sentenced to death by lethal injection. After having been informed of this, he insisted that he is willing to enter a plea of guilty to the crimes charged and is ready to face the consequences thereof.23 The warnings given by the trial court in this case fall short of the requirement that it must make a searching inquiry to determine whether accused-appellant understood fully the import of his guilty plea. As has been said, a mere warning that the accused faces the supreme penalty of death is insufficient.24 For more often than not, an accused pleads guilty upon bad advice or because he hopes for a lenient treatment or a lighter penalty. The trial judge must erase such mistaken impressions.25 He must be completely convinced that the guilty plea made by the accused was not made under duress or promise of reward. The judge must ask the accused the manner the latter was arrested or detained, and whether he was assisted by counsel during the custodial and preliminary investigations. In addition, the defense counsel should also be asked whether he conferred with the accused and completely explained to him the meaning and the consequences of a plea of guilt. Furthermore, since the age, educational attainment and socio-economic status of the accused may reveal insights for a proper verdict in the case, the trial court must ask questions concerning them.26 In this case, absent any showing that these questions were put to accused-appellant, a searching inquiry cannot be said to have been undertaken by the trial court. What the trial court did in this case, as described in its decisions, is similar to what happened in People v. Sevillano.27 In that case, the accused was charged with the rape and homicide of a nine-year old girl. The accused pleaded guilty whereupon the judge asked him questions: (1)

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Do you understand your plea of guilt? and (2) Do you know that your plea of guilt could bring the death penalty? This Court held that these questions did not constitute a searching inquiry. . . . In every case where the accused enters a plea of guilty to a capital offense, especially where he is an ignorant person with a little or no education, the proper and prudent course to follow is to take such evidence as are available and necessary in support of the material allegations of the information, including the aggravating circumstances therein enumerated, not only to satisfy the trial judge himself but also to aid the Supreme Court in determining whether the accused really and truly understood and comprehended the meaning, full significance and consequences of his plea.28 Clearly, the plea of guilty of accused-appellant in this case was made improvidently. II. Convictions based on an improvident plea of guilt are set aside only if such plea is the sole basis of judgment. If the trial court relied on sufficient and credible evidence to convict the accused, the conviction must be sustained, because then it is predicated not merely on the guilty plea of the accused but on evidence proving his commission of the offense charged.29 As already stated, the prosecution evidence consisted of the testimonies of Oleby and Maricris Nadera, the results of their medical examinations, and the testimonies of their mother, Daisy, and the physician who conducted the medical examination of the two girls, Dr. Cynthia Fesalbon. Certain circumstances present in this case, however, persuade us that a remand of this case is necessary. First. A perusal of the decision of the court reveals that the trial judge failed to state the factual and legal reasons on which he based accused-appellant's conviction. Except for the narration of the prosecution's evidence and a bare recital of R.A. No. 7659, amending Art. 335 of the Revised Penal Code, there is nothing else to indicate the reason for the decision. There is no evaluation of the evidence and no reason given why the court found the testimonies of the witnesses credible. Rule 120 of the 1985 Rules on Criminal Procedure provides: Sec. 2. Form and contents of judgment. The judgment must be written in the official language, personally and directly prepared by the judge and signed by him and shall contain clearly and distinctly a statement of the facts proved or admitted by the accused and the law upon which the judgment is based. If it is of conviction, the judgment shall state (a) the legal qualification of the offense constituted by the acts committed by the accused, and the aggravating or mitigating circumstances attending the commission thereof, if there be any; (b) participation of the accused in the commission of the offense, whether as principal, accomplice, or accessory after the fact; (c) the penalty imposed upon the accused; and (d) the civil liability or damages caused by the wrongful act to be recovered from the accused by the offended party, if there be any, unless the enforcement of the civil liability by a separate action has been reserved or waived. In case of acquittal, unless there is a clear showing that the act from which the civil liability might arise did not exist, the judgment shall make a finding on the civil liability of the accused in favor of the offended party.

In People v. Bugarin,30 we stated: The requirement that the decisions of courts must be in writing and that they must set forth clearly and distinctly the facts and the law on which they are based serves many functions. It is intended, among other things, to inform the parties of the reason or reasons for the decision so that if any of them appeals, he can point out to the appellate court the finding of facts or the rulings on points of law with which he disagrees. More than that, the requirement is an assurance to the parties that, in reaching judgment, the judge did so through the processes of legal reasoning. It is, thus, a safeguard against the impetuosity of the judge, preventing him from deciding by ipse dixit. Vouchsafed neither the sword nor the purse by the Constitution but nonetheless vested with the sovereign prerogative of passing judgment on the life, liberty or property of his fellowmen, the judge must ultimately depend on the power of reason for sustained public confidence in the justness of his decision. The decision of the trial court in this case disrespects the judicial function. Second. The cavalier attitude of accused-appellant's counsel, Atty. Manolo A. Brotonel of the Public Attorney's Office, cannot go unnoticed. It is discernible in (a) his refusal to cross examine Oleby Nadera; (b) the manner in which he conducted Maricris Nadera's cross examination; and, (c) his failure not only to present evidence for the accused but also to inform the accused of his right to do so, if he desires. Only faithful performance by counsel of his duty towards his client can give meaning and substance to the accused's right to due process and to be presumed innocent until proven otherwise. Hence, a lawyer's duty, especially that of a defense counsel, must not be taken lightly. It must be performed with all the zeal and vigor at his command to protect and safeguard the accused's fundamental rights. In the case of People vs. Bermas,31 no less than three PAO lawyers were found by the Court to have failed in performing their duties to their client, an accused charged with raping his daughter. The first lawyer inexplicably waived the cross examination of the private complainant and later asked to be relieved of her duties as counsel de oficio. A second lawyer appointed by the court missed several hearings during the trial and could no longer be located. The third PAO lawyer appointed by the trial court accepted his duties reluctantly and later ceased to appear for the accused. This Court held that: The right to counsel must be more than just the presence of a lawyer in the courtroom or the mere propounding of standard questions and objections. The right to counsel means that the accused is amply accorded legal assistance extended by a counsel who commits himself to the cause for the defense and acts accordingly. The right assumes an active involvement by the lawyer in the proceedings, particularly at the trial of the case, his bearing constantly in mind of the basic rights of the accused, his being well-versed on the case and his knowing the fundamental procedures, essential laws and existing jurisprudence. The right of an accused to counsel finds substance in the performance by the lawyer of his sworn duty of fidelity to his client. Tersely put, it means an efficient and truly decisive legal assistance and not a simple perfunctory representation. Measured by this standard, the defense counsel's conduct in this case falls short of the quality of advocacy demanded of him, considering the gravity of the offense charged and the finality of the penalty. A glaring example of his manifest lack

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of enthusiasm for his client's cause is his decision not to cross examine Oleby Nadera, as revealed in the following portion of the records: COURT: Any cross? ATTY. BROTONEL: If Your Honor please, we are not conducting any crossexamination, because this representation, from the demeanor of the witness, I am convinced that she is telling the truth.32 It may be so that defense counsel personally found Oleby's testimony to be believable. Nonetheless, he had the bounded duty to scrutinize private complainant's testimony to ensure that the accused's constitutional right to confront and examine the witnesses against him was not rendered for naught. It bears pointing out that in rape cases, it is often the word of the complainant against that of the accused, the two being the only persons present during the commission of the offense. While the lone testimony of the victim is sufficient to convict the accused, such testimony must be clear, positive, convincing and consistent with human nature and the normal course of things. Complainant's testimony cannot be accepted with precipitate credulity without denying the accused's constitutional right to be presumed innocent.33 This is where cross examination becomes essential to test the credibility of the witnesses, expose falsehoods or halftruths, uncover the truth which rehearsed direct examination testimonies may successfully suppress, and demonstrate inconsistencies in substantial matters which create reasonable doubt as to the guilt of the accused and thus to give substance to the constitutional right of the accused to confront the witnesses against him. For unless proven otherwise to be guilty beyond all reasonable doubt, the accused is presumed to be innocent.34 Indeed, cross examining Oleby Nadera becomes indispensable if her testimony is viewed together with the results of her medical examination. Oleby Nadera claimed that she was last raped by her father on April 24, 1995.35 Yet, the medical examination conducted on her on April 30, 199636 revealed the presence of spermatozoa in the vaginal canal on that date. This was a year after the last rape allegedly committed by her father. This evident discrepancy leads to only one natural conclusion: Oleby engaged in sexual intercourse a few days before she was examined. This raises a number of questions that bear upon the credibility of Oleby as a witness and upon the guilt of accused-appellant. This may not necessarily mean that she was lying when she said that on April 24, 1995 she had been raped by accused-appellant, but it does indicate a necessity that of cross examining her in order to ferret out the truth. The same may be said of defense counsel's treatment of Maricris' testimony. While she was cross examined by defense counsel, the examination was at best a half-hearted attempt to comply with a lawyer's obligation, lacking the rigor and zeal required considering that a man's life is at stake. The cross examination centered on what Maricris did or did not do while she witnessed her sister being raped, and on her failure to report the allegedly incestuous rapes against them. Said cross examination did not even touch upon the specific details concerning the rape committed against her. Containing lurid details as it may be, it was nonetheless important to probe Maricris' testimony, especially since it was

substantially similar to the first incident of rape narrated by her sister, and thus raised the possibility that it was a rehearsed, if not concocted, story. Lastly, not only did defense counsel fail to object to the documentary evidence presented by the prosecution, according to the trial court's decision, he even expressed his conformity to the admission of the same. Neither did he present any evidence on behalf of accused-appellant.37 Worse, nowhere in the records is it shown that accusedappellant was informed, either by his counsel or by the court, of his right to present evidence, if he so desires. Atty. Brotonel, as counsel de oficio, had the duty to defend his client and protect his rights, no matter how guilty or evil he perceives accused-appellant to be. The performance of this duty was all the more imperative because the life of accused-appellant hangs in the balance. His duty was no less because he was counsel de oficio. In view of the foregoing, we find it necessary to remand the case for the proper arraignment and trial of the accused, considering not only the accused's improvident plea of guilt but also his lawyer's neglect in representing his cause. A new trial has been ordered in criminal cases on the ground of retraction of witnesses, negligence or incompetency of counsel, improvident plea of guilty, disqualification of an attorney de oficio to represent the accused in the trial court, and where a judgment rendered on a stipulation of facts entered into by both the prosecution and the defense.38 WHEREFORE, the decision, dated April 27, 1997, of the Regional Trial Court, Branch 40, Calapan, Oriental Mindoro, is hereby SET ASIDE and Criminal Case Nos. C-4982, C4983, C-4984 and C-4985 are REMANDED to it for further proceedings in accordance with this decision. The trial court is enjoined to conduct the proper trial of accused-appellant with all deliberate speed upon receipt of the records of the cases. SO ORDERED.1wphi1.nt Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.

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G.R. No. L-11262 Phil 74, 1916)

20 March 2, 1916

entered a plea of guilty there can be no doubt. (34 From the above mentioned provisions of General Orders No. 58 it will be seen that there is a clear distinction, with reference to leas, between misdemeanors and felonies. In the former the accused need not appear personally at all, but if the crime charged be the latter, "A plea of guilty can be put in only by the defendant himself in open court." Stronger and clearer language could not have been used. Only, as thus used, is clearly restrictive and excludes, as clearly as language can, the idea that someone else can enter the plea of guilty for an accused person charged with a felony. Only coupled with the words "the defendant himself," has the effect of absolutely prohibiting any other person from entering such a plea. If a plea of guilty be entered by another person, where the charge is that of a felony, although such person may be the counsel for the accused, it is a nullity and no conviction can rest thereon. Section 1018 of the Penal Code of California provides that: A plea of guilty can be put in by the defendant himself only in open court, unless upon indictment or information against a corporation, in which case it may be put in by counsel. In the note of section 1017, wherein section 1018 is cited, it is said: The requirement of the law that defendant must plead personally cannot be cured by the fact that he was brought into court and tried without objection. (People vs. Monaghan, 102 Cal., 229.) In all cases amounting to a felony the defendant must plead in person. (People vs. Corbett, 28 Cal., 328.) A plea by his attorney for him is a nullity. (McQuillen vs. State, 8 Smedes & M., 587; Younger vs. State, 2 W. Va., 579; 98 Am. Dec., 791.) In cases of misdemeanor the defendant may plead in person or by attorney. (People vs. Ebner, 23 Cal., 158.). We, therefore, conclude that the judgment appealed from must be set aside and a new trial awarded to the defendant, unless it is necessary under the law to discharge or acquit him, as claimed by his counsel, on the ground that he cannot be again put upon his trial for the same offense. At the time the plea of guilty was substituted for that of not guilty, legal jeopardy, within the meaning of that portion of the fifth section of the Philippine Bill providing that "no person for the same offense shall be twice put in jeopardy of punishment," had attached, if this provision covers the case under consideration wherein we have just annulled the judgment at the request of the accused. (U. S. vs. Ballentine, 4 Phil. Rep., 672, 673.) And the defendant can avail himself of the once-in-jeopardy clause as a bar to a new trial of the offense for which he was convicted, provided he did not waive his right to his plea in seeking and obtaining a reversal of the judgment. In determining whether legal jeopardy had attached and, if so, whether the defendant waived the rights and benefits resulting therefrom by reason of the reversal of the judgment upon his own appeal, it is necessary to note the appellate and jurisdiction of this court in hearing and determining criminal cases. Appeals in such cases are perfected by the defendant by filing with the clerk of the Court of First Instance, or with such court, a notice stating the appeal and by serving a copy thereof upon the adverse party. This operates as a supersedeas and requires the clerk or judge the transmit to the Clerk of the Supreme Court the complete record in the case, together with the notice of the appeal. When the case is regularly submitted to this Court on appeal, if it be one originating in the Court of First Instance, this court proceeds to review the record and in the event that for any

THE UNITED STATES, plaintiff -appellee, vs. GREGORIO T. GIMENEZ, defendant-appellant. M. Escueta for appellant. Attorney-General Avancea for appellee. TRENT, J.: This is an appeal from a judgment condemning the defendant, Gregorio T. Gimenez, to six years and one day of prision mayor, to the accessory penalties provided by law, and to the payment of the costs of the cause for the crime of bigamy (illegal marriage). Upon arraignment, the defendant entered a plead of "not guilty" and the case proceeded to trial. After presenting three witnesses for the prosecution, the trial was suspended until the following day, when, upon the reconvening of the court, counsel for the defendant made this statement: Liongson. Since conferring with the defendant he wishes to withdraw his plea to the complaint of 'not guilty' and to substitute therefor that of 'guilty.' The Court. Enter in the record that the attorney for the defense requests to withdraw the plea of `not guilty' entered by the defendant, and the substitution therefor of the plea of `guilty.'" Forthwith, the court rendered the following judgment: Gregorio Gimenez having pleaded guilty to the crime of illegal marriage, proved for the penalized by article 471 of the Penal Code, the court sentences him to six years and one day of prision mayor, with the accessories of article 61, and to the payment of the costs. Although the language used by counsel and the court, above quoted, may not definitely show that the plea of not guilty was actually withdrawn and the plea of guilty substituted therefor, yet all admit that this was, in fact, done by counsel, notwithstanding the charge is for a felony. The principal question raised on this appeal relates to the legality of the conviction of the defendant on a plea of guilty entered by his counsel. The statutory law touching the question under consideration may be briefly stated as follows: If the charge against the accused in a criminal case is for a felony, he must be personally present at the arraignment and pronouncement of judgment if convicted; but if for a misdemeanor, he may appear by counsel and the judgment may be pronounced in his absence. (General Orders No. 58, secs. 16 and 41.) The arraignment shall consist in reading the complaint or information of the defendant and asking him whether he pleads guilty as charged. (Id., sec. 18.) "A plea of guilty can be put in only by the defendant himself in open court." (Id., sec. 25.) It is well settled in this jurisdiction that a defendant in a criminal case, although the charge be a felony, has a right to withdraw his plea of guilty or not guilty and to interpose another even after the trial has commenced. (U.S. vs. Sakay, 8 Phil. Rep., 255.) That the defendant in the instant case could have personally withdrawn his plea of not guilty and

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reason it cannot affirm the judgment entered in the court below, it may then retry the case upon the record, determining both questions of law and fact, and on the findings of fact thus made, modify or reverse the judgment accordingly, thereby entering a new judgment convicting or acquitting the appellant as the case may be, or it may reopen the trial, as provided in section 42 of General Orders No. 58, and grant a new hearing. The new hearing shall take place in the court of original jurisdiction. This Court may also order a new trial in case the record or any material part of it has been lost or destroyed through no fault on the part of the officers of the Government. In the cases just mentioned, where new trials are thus granted, the defendant may be retired upon the same charge without violating the once-injeopardy clause above quoted. (U. S. vs. Sunga and Bautista, 11 Phil. Rep., 601; U. S. vs. Laguna, 17 Phil. Rep., 532.). The reviewing courts, both State and Federal, in the United States determine, as a general rule, only questions of law, where the appellant is convicted of a felony, and if a reversable error is committed, the case is returned for a new trial. Some of the appellate courts in that country will also grant new trials if the verdict of guilt has no evidence to support it or is flagrantly contrary to the evidence. The state courts, however, are not a harmony upon the question as to the limits of new trials thus granted or ordered. Some hold that where the accused has been acquitted in the first instance of the greater offense charged in the indictment, but convicted of the lesser offense included therein, he can be tried for the lesser offense only, while others hold that upon a new trial the whole case is open as if there had been no former trial at all. The courts which limit the new trial proceed upon the ground that the accused by appealing waives his constitutional protection as to double jeopardy, but such waiver goes no further than the accused himself extends it and as he asked for so much of the judgment as convicts him of guilt and does not ask for a reversal of so much of it as acquits him, he waives his privilege as to the one and keeps it as to the other. While on the other hand, the courts holding that a new trial is not so limited are of the opinion that in appealing from the judgment and accused necessarily appeals from the whole thereof, as well that which acquits as that which condemns; that the judgment is one entire thing; and that, as he brings up the whole record for review, he thereby waives the provisions of the once-in-jeopardy clause for the purpose of attempting to gain what he thinks is a greater benefit, viz., a review and reversal by the higher court of a judgment of conviction. Or in other words, when at his own request an accused has obtained a new trial, he must take the burden with the benefit and go back for a new trial of the whole case. The latter view, as to the extent of the waiver, is supported by the Supreme Court of the United States. (Trono vs. U. S., 11 Phil. Rep., 726; 199 U. S., 521.) In this jurisdiction we may, as we have said, retry the case upon the record and, if the record will permit, pronounce a final verdict of guilty or not guilty and render judgment accordingly, while in cases arising in the United States proper the case is returned to the lower court for final disposition, generally for a new trial. But, if the case be like the one under consideration, where a fatal error was committed during the progress of the trial and where the trial was not completed on account of such error, the record will not permit a retrial in this court upon the merits and a judgment of conviction or acquittal finally disposing of the case. Whether we take the view upon the limits of the waiver as to the once-in-jeopardy provision, as indicated in Trono

vs. U. S., supra, or whether we accept the view also expressed in that case by the Supreme Court of the United States to the effect that "the constitutional provision (as to double jeopardy) was really never intended to, and, properly construed, does not cover the case of a judgment under these circumstances, which has been annulled by the court at the request of the accused, and there is, therefore, no necessity of relying upon the waiver, because the correct construction of the provision does not make it applicable, "the result is the same. We must follow the holding of the Supreme Court of the United States upon these questions. For the foregoing reasons, the judgment appealed from is set aside and the record will be returned to the Court of First Instance, whence it came, for a new trial upon the same charge. So ordered. Arellano, C.J., Torres, Johnson, and Carson, JJ., concur. Moreland, J., concurs in the result.

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G.R. No. L-26376 SCRA 1119, 1966)

21 August 31, 1966

(17

THE PEOPLE OF THE PHILIPPINES, plaintiff and appellant, vs. AURELIO BALISACAN, defendant and appellee. Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General I. C. Borromeo and T. M. Dilig for plaintiff and appellant. Rolando de la Cuesta for defendant and appellee. BENGZON, J.P., J.: This is an appeal by the prosecution from a decision of acquittal. On February 1, 1965, Aurelio Balisacan was charged with homicide in the Court of First Instance of Ilocos Norte. The information alleged: That on or about December 3, 1964, in the Municipality of Nueva Era, province of Ilocos Norte, Philippines, and within the jurisdiction of this Honorable Court, the herein accused, with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and stab one, Leonicio Bulaoat, inflicting upon the latter wounds that immediately caused his death. CONTRARY TO LAW. To this charge the accused, upon being arraigned, entered a plea of guilty. In doing so, he was assisted by counsel. At his de oficio counsel's petition, however, he was allowed to present evidence to prove mitigating circumstances. Thereupon the accused testified to the effect that he stabbed the deceased in self-defense because the latter was strangling him. And he further stated that after the incident he surrendered himself voluntarily to the police authorities. Subsequently, on March 6, 1965, on the basis of the abovementioned testimony of the accused, the court a quo rendered a decision acquitting the accused. As stated, the prosecution appealed therefrom. This appeal was first taken to the Court of Appeals. Appellant filed its brief on September 9, 1965. No appellee's brief was filed. After being submitted for decision without appellee's brief, the appeal was certified to Us by the Court of Appeals on July 14, 1966, as involving questions purely of law (Sec. 17, Republic Act 296). And on August 5, 1966, We ordered it docketed herein.1wph1.t The sole assignment of error is: THE TRIAL COURT ERRED IN ACQUITTING THE ACCUSED OF THE OFFENSE CHARGED DESPITE THE LATTER'S PLEA OF GUILTY WHEN ARRAIGNED. Appellant's contention is meritorious. A plea of guilty is an unconditional admission of guilt with respect to the offense charged. It forecloses the right to defend oneself from said charge and leaves the court with no alternative but to impose the penalty fixed by law under the circumstances. (People v. Ng Pek, 81 Phil. 563). In this case, the defendant was only allowed to testify in order to establish mitigating circumstances, for the purposes of fixing the penalty. Said testimony, therefore, could not be taken as a trial on the merits, to determine the guilt or innocence of the accused.

In view of the assertion of self-defense in the testimony of the accused, the proper course should have been for the court a quo to take defendant's plea anew and then proceed with the trial of the case, in the order set forth in Section 3 of Rule 119 of the Rules of Court: SEC. 3. Order of trial. The plea of not guilty having been entered, the trial must proceed in the following order: (a) The fiscal, on behalf of the People of the Philippines, must offer evidence in support of the charges. (b) The defendant or his attorney may offer evidence in support of the defense. (c) The parties may then respectively offer rebutting evidence only, unless the court, in furtherance of justice, permit them to offer new additional evidence bearing upon the main issue in question. (d) When the introduction of evidence shall have been concluded, unless the case is submitted to the court without argument, the fiscal must open the argument, the attorney for the defense must follow, and the fiscal may conclude the same. The argument by either attorney may be oral or written, or partly written, but only the written arguments, or such portions of the same as may be in writing, shall be preserved in the record of the case. In deciding the case upon the merits without the requisite trial, the court a quo not only erred in procedure but deprived the prosecution of its day in court and right to be heard. This Court now turns to Section 2, Rule 122 of the Rules of Court, which provides that: "The People of the Philippines can not appeal if the defendant would be placed thereby in double jeopardy." The present state of jurisprudence in this regard is that the above provision applies even if the accused fails to file a brief and raise the question of double jeopardy (People v. Ferrer, L-9072, October 23, 1956; People v. Bao, L-12102, September 29, 1959; People v. De Golez, L-14160, June 30, 1960). The next issue, therefore, is whether this appeal placed the accused in double jeopardy. It is settled that the existence of a plea is an essential requisite to double jeopardy (People v. Ylagan, 58 Phil. 851; People v. Quimsing, L-19860, December 23, 1964). In the present case, it is true, the accused had first entered a plea of guilty. Subsequently, however, he testified, in the course of being allowed to prove mitigating circumstances, that he acted in complete selfdefense. Said testimony, therefore as the court a quo recognized in its decision had the effect of vacating his plea of guilty and the court a quo should have required him to plead a new on the charge, or at least direct that a new plea of not guilty be entered for him. This was not done. It follows that in effect there having been no standing plea at the time the court a quo rendered its judgment of acquittal, there can be no double jeopardy with respect to the appeal herein.1 Furthermore, as afore-stated, the court a quo decided the case upon the merits without giving the prosecution any opportunity to present its evidence or even to rebut the testimony of the defendant. In doing so, it clearly acted without due process of law. And for lack of this fundamental prerequisite, its action is perforce null and void. The acquittal, therefore, being a nullity for want of due process, is no acquittal at all, and thus can not constitute a proper basis for a claim of former jeopardy (People v. Cabero, 61 Phil. 121; 21 Am. Jur. 2d. 235; McCleary v. Hudspeth 124 Fed.

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2d. 445). It should be noted that in rendering the judgment of acquittal, the trial judge below already gave credence to the testimony of the accused. In fairness to the prosecution, without in any way doubting the integrity of said trial judge, We deem it proper to remand this case to the court a quo for further proceedings under another judge of the same court, in one of the two other branches of the Court of First Instance of Ilocos Norte sitting at Laoag. Wherefore, the judgment appealed from is hereby set aside and this case is remanded to the court a quo for further proceedings under another judge of said court, that is, for plea by the defendant, trial with presentation of evidence for the prosecution and the defense, and judgment thereafter, No costs. So ordered. Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Zaldivar, Sanchez and Castro, JJ., concur. Regala and Makalintal, JJ., took no part.

71