A.M. No. 3360 January 30, 1990PEOPLE OF THE PHILIPPINES, complainant vs.
We read the above statement as a claim by the respondent that, she had not violated
ATTY. FE T. TUANDA, respondent.
PER CURIAM:
In a Motion to Lift Order of Suspension dated 12 July 1989, respondent Fe T. Tuanda,
a member of the Philippine Bar, asks this Court to lift the suspension from the practice
of law imposed upon her by a decision of the Court of Appeals dated 17 October 1988
in C.A.-G.R. CR No. 05093.
On 17 December 1983, respondent received from one Herminia A. Marquez several
pieces of jewelry, with a total stated value of P36,000.00, for sale on a commission
basis, with the condition that the respondent would turn over the sales proceeds and
return the unsold items to Ms. Marquez on or before 14 February 1984. Sometime in
February 1984, respondent, instead of returning the unsold pieces of jewelry which
then amounted to approximately P26,250.00, issued three checks: (a) a check dated
16 February 1984 for the amount of P5,400.00; (b) a check dated 23 February 1984
also for the amount of P5,400.00; and (c) a check dated 25 February 1984 for the
amount of P15,450.00. Upon presentment for payment within ninety (90) days after
their issuance, all three (3) checks were dishonored by the drawee bank, Traders
Royal Bank, for insufficiency of funds. Notwithstanding receipt of the notice of
dishonor, respondent made no arrangements with the bank concerning the honoring of
checks which had bounced and made no effort to settle her obligations to Ms.
Marquez.
Consequently, four (4) informations were filed against respondent with the Regional
Trial Court of Manila: (a) one for estafa, docketed as Criminal Case No. 85-38358; and
(b) three (3) for violation of B.P. Blg. 22, docketed respectively as Criminal Cases Nos.
85-38359, 85-38360 and 85-38361. In due time, after trial, the trial court rendered a
decision dated 25 August 1987 which:
(a) acquitted respondent of the charge of estafa; and
(b) convicted respondent of violation of B.P. Blg. 22 in all three (3) cases,
and sentenced respondent to pay a fine of P6,000.00, with subsidiary
imprisonment in case of insolvency and to indemnify the complainant in
the amount of P5,400.00 in Criminal Case No. 8538359;
to pay a fine of P 6,000.00, with subsidiary imprisonment in case of insolvency and to
indemnify the complainant in the amount of P5,400.00, in Criminal Case No. 85-38360;
and to pay a fine of P16,000.00, with subsidiary imprisonment in case of insolvency,
and to indemnify the complainant in the amount of P15,450.00, in Criminal Case No.
85-38361, and to pay the costs in all three (3) cases.
On appeal, the Court of Appeals in C.A.-G.R. CR No. 05093 affirmed in toto the
decision of the trial court but, in addition, suspended respondent Tuanda from the
practice of law. The pertinent portion of the decision read as follows:
For reasons above stated and finding the evidence sufficient to sustain the
conviction, the judgment is hereby AFFIRMED subject to this modification.
It appearing from the records that the accused Fe Tuanda is a member of
the Bar, and the offense for (sic) which she is found guilty involved moral
turpitude, she is hereby ordered suspended from the practice of law and
shall not practice her profession until further action from the Supreme
Court, in accordance with Sections 27 and 28 of Rule 138 of the Rules of
Court. A copy of this decision must be forwarded to the Supreme Court as
required by Section 29 of the same Rule.
SO ORDERED. 1
On 16 December 1988, respondent filed a Notice of Appeal with the Court of Appeals.
The Court of Appeals, in a Resolution dated 9 January 1989, noted respondent's
Notice of Appeal and advised her "to address her Notice of Appeal to the Honorable
Supreme Court, the proper forum." On 1 February 1989, respondent filed with this
Court a Notice of Appeal.
In a Resolution dated 31 May 1989, the Supreme Court noted without action
respondent's Notice of Appeal and declared that the Court of Appeals' decision of 17
October 1988 had become final and executory upon expiration of the period for filing a
petition for review on certiorari on 16 December 1988. In that Resolution, the Court
found that respondent had lost her right to appeal by certiorari when she posted with
this Court a Notice of Appeal instead of filing a petition for review on certiorari under
Section 1, Rule 45 of the Revised Rules of Court within the reglementary period.
In the instant Motion to Lift Order of Suspension, respondent states:
that suspension from the practice of law is indeed a harsh if not a not
painful penalty aggravating the lower court's penalty of fine considering
that accused-appellant's action on the case during the trial on the merits at
the lower court has always been motivated purely by sincere belief that
she is innocent of the offense charged nor of the intention to cause
damage to the herein plaintiff-appellee.
her oath as a member of the Philippine Bar upon the ground that when she issued the
checks which bounced, she did not intend to cause damage to complainant Ms.
Marquez.
The Court affirms the suspension from the practice of law imposed by the Court of
Appeals upon respondent Tuanda. The Court of Appeals correctly ruled that "the
offense [of] which she is found guilty involved moral turpitude." We should add that
violation of B.P. Blg. 22 is a serious criminal offense which deleteriously affects public
interest and public order. In Lozano v. Martinez,2 the Court explained the nature of the
offense of violation of B.P. Blg. 22 in the following terms:
xxx xxx xxx
The gravamen of the offense punished by B.P. Blg. 22 is the act of making
and issuing a worthless check or a check that is dishonored upon its
presentation for payment. . . . The thrust of the law is to prohibit under
pain of penal sanctions, the making of worthless checks and putting them
in circulation. Because of its deleterious effects on the public interest, the
practice is prescribed by the law. The law punishes the act not as an
offense against property but an offense against public order.
xxx xxx xxx
The effects of the issuance of a worthless check transcends the private
interests of the parties directly involved in the transaction and touches the
interests of the community at large. The mischief it creates is not only a
wrong to the payee or holder, but also an injury to the public. The harmful
practice of putting valueless commercial papers in circulation, multiplied a
thousandfold, can very well pollute the channels of trade and commerce,
injure the banking system and eventually hurt the welfare of society and
the public interest. 3(Italics supplied)
Respondent was thus correctly suspended from the practice of law because she had
been convicted of crimes involving moral turpitude. Sections 27 and 28 of Rule 138 of
the Revised Rules of Court provide as follows:
Sec. 27. Attorneys renewed or suspended by Supreme Court on what
grounds. A member of the bar may be removed or suspended from his
office as attorney by the Supreme Court of any deceit, malpractice, or
other gross misconduct in such office, grossly immoral conduct, or by
reason of his conviction of a crime involving moral turpitude, or for any
violation of the oath which he is required to take before admission to
practice, or for a wilful disobedience of any lawful order of a superior court,
or for corruptly or wilfully appearing as an attorney for a party to a case
without authority so to do. The practice of soliciting cases at law for the
purpose of gain, either personally or through paid agents or brokers,
constitutes malpractice. (Italics supplied)
Sec. 28. Suspension of attorney by the Court of Appeals or a Court of First
Instance. — The Court of Appeals or a Court of First Instance may
suspend an attorney from practice for any of the causes named in the last
preceding section, and after such suspension such attorney shall not
practice his profession until further action of the Supreme Court in the
premises. (Italics supplied)
We should add that the crimes of which respondent was convicted also import deceit
and violation of her attorney's oath and the Code of Professional Responsibility under
both of which she was bound to "obey the laws of the land." Conviction of a crime
involving moral turpitude might not (as in the instant case, violation of B.P. Blg. 22
does not) relate to the exercise of the profession of a lawyer; however, it certainly
relates to and affects the good moral character of a person convicted of such offense.
In Melendrez v. Decena, 4 this Court stressed that:
the nature of the office of an attorney at law requires that she shall be a
person of good moral character. This qualification is not only a condition
precedent to an admission to the practice of law; its continued possession
is also essential for remaining in the practice of law. 5
ACCORDINGLY, the Court Resolved to DENY the Motion to Lift Order of Suspension.
Respondent shall remain suspended from the practice of law until further orders from
this Court. A copy of this Resolution shall be forwarded to the Bar Confidant and to the
Integrated Bar of the Philippines and spread on the record of respondent.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla,
Bidin, Sarmiento, Cortes and Griño-Aquino, JJ., concur.
Gutierrez, Jr., Medialdea and Regalado, JJ., in the result.
A.C. No. 376 April 30, 1963 xxx xxx xxx

JOSEFINA ROYONG, complainant, vs. FINDINGS AND COMMENT

ATTY. ARISTON OBLENA, respondent.
There is no controversy that the respondent had carnal knowledge of the
BARRERA, J.: complainant. The complainant claims she surrendered to him under
circumstances of violence and intimidation, but the undersigned are
convinced that the sexual intercourse was performed not once but
In a verified complaint filed with this Court on January 14, 1959, complainant Josefina
repeatedly and with her consent. From her behaviour before and after the
Royong charged the respondent Ariston J. Oblena, a member of the Philippine Bar,
alleged rape, she appears to have been more a sweetheart than of the
with rape allegedly committed on her person in the manner described therein. Upon
victim of an outrage involving her honor ....
requirement of this Court, the respondent filed his answer denying all the allegations in
the complaint and praying that he be not disbarred. On February 3, 1959, this Court
referred the case to the Solicitor General for investigation, report and recommendation. But the foregoing observations notwithstanding, the undersigned cannot in
conscience recommend respondent's exoneration. The respondent
tempted Briccia Angeles to live maritally with him not long after she and
On July 10, 1961, the Solicitor General submitted his report on the case with the
her husband parted, and it is not improbable that the spouses never
recommendation that the respondent "be permanently removed from his office lawyer
reconciled because of him. His own evidence shows that, tiring of her after
and his name be stricken from the roll of attorneys". The pertinent part of the report
more than fifteen years of adulterous relationship with her and on the
reads as follows:
convenient excuse that she, Briccia Angeles, could not bear a child, he
seduced Josefina Andalis, then 17 or 18 years of age, resulting in her
The complainant testified that after lunch on August 5, 1958, Cecilia pregnancy and the birth of a child, on June 2, 1959. The seduction was
Angeles, her foster mother, left her alone in their house and went down to accomplished with grave abuse of confidence and by means of promises
the pig sty to feed the pigs. At about 1:00 p.m., while she" (complainant) of marriage which he knew he could not fulfill without grievous injury to the
was ironing clothes on the second floor of the house the respondent woman who forsook her husband so that he, respondent, could have all of
entered and read a newspaper at her back. Suddenly he covered her her. He also took advantage of his moral influence over her. From
mouth with one hand and with the other hand dragged her to one of the childhood, Josefina Andalis, treated him as an uncle and called him 'tata'
bedrooms of the house and forced her to lie down on the floor. She did not (uncle), undoubtedly because he is the paramour of a sister of her mother.
shout for help because he threatened her and her family with death. He Considering her age (she was 17 or 18 years old then), it is not difficult to
next undressed as she lay on the floor, then had sexual intercourse with see why she could not resist him.
her after he removed her panties and gave her hard blows on the thigh
with his fist to subdue her resistance. After the sexual intercourse, he
The evidence further shows that on July 22, 1954, the respondent filed a
warned her not to report him to her foster parents, otherwise, he would kill
sworn petition dated May 22, 1954 alleging "that he is a person of good
her and all the members of her family. She resumed ironing clothes after
moral character" (Par. 3) and praying that the Supreme Court permit him
he left until 5:00 o'clock that afternoon when she joined her foster mother
"to take the bar examinations to be given on the first Saturday of August,
on the first floor of the house. As a result of the sexual intercourse she
1954, or at any time as the Court may fix.."
became pregnant and gave birth to a baby on June 2, 1959 (pp. 4-8, 21,
23, 26, 27, t.s.n., hearing of Aug. 5, 1959).
But he was not then the person of good moral character he represented
himself to be. From 1942 to the present, he has continuously lived an
She admitted that had she shouted for help she would have been heard
adulterous life with Briccia Angeles whose husband is still alive, knowing
by the neighbors that she did not report the outrage to anyone because of
that his concubine is a married woman and that her marriage still subsists.
the threat made by the respondent; that she still frequented the
This fact permanently disqualified him from taking the bar examinations,
respondent's house after August 5, 1959, sometimes when he was alone,
and had it been known to the Supreme Court in 1954, he would not have
ran errands for him, cooked his coffee, and received his mail for him.
been permitted to take the bar examinations that year or thereafter, or to
Once, on November 14, 1958, when respondent was sick of influenza, she
take his oath of office as a lawyer. As he was then permanently
was left alone with him in his house while her aunt Briccia Angeles left for
disqualified from admission to the Philippine Bar by reason of his
Manila to buy medicine (pp. 11, 14-18, 24, t.s.n., hearing of August 5,
adulterous relations with a married woman, it is submitted that the same
1959).
misconduct should be sufficient ground for his permanent disbarment,
unless we recognize a double standard of morality, one for membership to
The respondent on the witness stand denied that he raped the the Philippine Bar and another for disbarment from the office of a lawyer.
complainant (p. 3, t.s.n., hearing of March 25 1960). He testified that after
lunch on August 5, 1958, he went to the Commission Of Civil Service to
xxx xxx xxx
follow up his appointment as technical assistant in the office of the mayor
of Makati, Rizal, and read the record of the administrative case against
Buenaventura Perez (pp. 23, 24, 34, t.s.n., hearing of March 25, 1960, RECOMMENDATION
Exhs. 1 and 2).
Wherefore, the undersigned respectfully recommend that after due
The respondent, however, admitted that he had illicit relations with the hearing, respondent Ariston J. Oblena be permanently removed from his
complainant from January, 1957 to December, 1958, when their office as a lawyer and his name be stricken from the roll of attorneys.
clandestine affair was discovered by the complainant's foster parents, but
to avoid criminal liability for seduction, according to him, he limited himself
In view of his own findings as a result of his investigation, that even if respondent did
to kissing and embracing her and sucking her tongue before she
not commit the alleged rape nevertheless he was guilty of other misconduct, the
completed her eighteenth birthday. They had their first sexual intercourse
Solicitor General formulated another complaint which he appended to his report,
on May 11, 1958, after she had reached eighteen, and the second one
charging the respondent of falsely and deliberately alleging in his application for
week later, on May 18. The last intercourse took place before Christmas in
admission to the bar that he is a person of good moral character; of living adulterously
December, 1958. In all, they had sexual intercourse about fifty times,
with Briccia Angeles at the same time maintaining illicit relations with the complainant
mostly in her house and sometimes in his house whenever they had the
Josefina Royong, niece of Briccia, thus rendering him unworthy of public confidence
opportunity. He intended to marry her when she could legally contract
and unfit and unsafe to manage the legal business of others, and praying that this
marriage without her foster parents' intervention, 'in case occasion will
Court render judgment ordering "the permanent removal of the respondent ... from his
permit ... because we cannot ask permission to marry, for her foster
office as a lawyer and the cancellation of his name from the roll of attorneys."
parents will object and even my common-law wife, will object.' After the
discovery of their relationship by the complainant's foster parents, he
confessed the affair to Briccia, explaining that he wanted to have a child, In his answer to this formal complaint, respondent alleged the special defense that "the
something she (Briccia) could not give him. (pp. 14-16, 19-25, t.s.n., complaint does not merit action", since the causes of action in the said complaint are
hearing of March 25, 1960). different and foreign from the original cause of action for rape and that "the complaint
lacks the necessary formalities called for in Sec. 1, Rule 128 of the Rules of Court."
Respondent prayed that after due notice and hearing for additional evidence, the
complaint be dismissed.
On September 13, 1961, this Court designated the Court Investigators to receive the
additional evidence. Accordingly the case was set for hearing of which the parties were
duly notified. On September 29, 1961, respondent asked leave to submit a
memorandum which was granted, and on October 9, 1961 the same was filed, alleging
the following: 1) That the charge of rape has not been proven; 2) That no act of
seduction was committed by the respondent; 3) That no act of perjury or fraudulent
concealment was committed by the respondent when he filed his petition for admission
to the bar; and 4) That the respondent is not morally unfit to be a member of the bar.
Wherefore, the parties respectfully pray that the foregoing stipulation of facts be
admitted and approved by this Honorable Court, without prejudice to the parties
adducing other evidence to prove their case not covered by this stipulation of
facts. 1äwphï1.ñët
At the hearing on November 16, 1961, respondent presented his common-law wife,
Briccia Angeles, who testified as follows:
slightest intention to hide' from this Court the fact of his 'open cohabitation
with a married woman' (Briccia Angeles); that he did not state said fact in
his petition, because he did not see in the form of the petition being used
in 1954 that the fact must be stated; and that since his birth, he thought
and believed he was a man of good moral character, and it was only from
the Solicitor General that he first learned he was not so; and that he did
not commit perjury or fraudulent concealment when he filed his petition to
take the bar examinations in 1954." (Report of the Court Investigators, pp.
6-8, March 6, 1962).
After hearing, the investigators submitted a report with the finding that: 1) Respondent
used his knowledge of the law to take advantage by having illicit relations with
complainant, knowing as he did, that by committing immoral acts on her, he was free
from any criminal liability; and 2) Respondent committed gross immorality by
continuously cohabiting with a married woman even after he became a lawyer in 1955
to the present; and 3) That respondent falsified the truth as to his moral character in
his petition to take the 1954 bar examinations, being then immorally (adulterously) in
cohabitation with his common-law wife, Briccia Angeles, a married woman. The
investigators also recommended that the respondent be disbarred or alternatively, be
suspended from the practice of law for a period of one year.

... Respondent is her common-law husband (t.s.n. 23). She first met Upon the submission of this report, a copy of which was served on respondent,
respondent on December 16, 1941 at Cavinti, Laguna (t.s.n. 23). She and through his counsel of record, the case was set for hearing before the Court on April
her sister Cecilia Angeles-Royong were evacuated to Cavinti by the Red 30, 1962. Respondent asked leave to file his memorandum in lieu of oral argument.
Cross (t.s.n. 23). She was already married (to Teodoro Arines) at the time This was granted and the corresponding memorandum was duly filed.
(t.s.n. 24). She and Arines are from Iriga, Camarines Sur (t.s.n. 24).
Respondent and one Mr. Flores registered them (t.s.n. 24) as evacuees.
It is an admitted and uncontroverted fact that the respondent had sexual relations with
When Mr. Flores asked her about her status she told him she was 'single'
the complainant several times, and as a consequence she bore him a child on June 2,
(t.s.n. 25). She and her sister, Cecilia, were then told to stay at
1959; and that he likewise continuously cohabited with Briccia Angeles, in an
respondent's house, respondent courted her (t.s.n. 26). Respondent
adulterous manner, from 1942 up to the present.
asked her if she was married and she told him 'we will talk about that later
on' (t.s.n. 26). She told respondent she was married (to Arines) when she
and respondent were already living together as 'husband and wife', in The main point in issue is thus limited illicit relations with the complainant Josefina
1942( t.s.n. 26). Respondent asked her to marry him, when they were Royong the and the open cohabitation with Briccia Angeles, a married woman, are
living as husband and wife (t.s.n. 27). Her sister Cecilia left Cavinti 2 sufficient grounds to cause the respondent's disbarment.
months after their arrival thereat, but she did not go with her because she
and respondent 'had already a good understanding'(sexual relations)
It is argued by the respondent that he is not liable for disbarment notwithstanding his
[t.s.n. 27]. Later, she left Cavinti and went to her hometown in Iriga,
illicit relations with the complainant and his open cohabitation with Briccia Angeles, a
Camarines Sur, because respondent was already reluctant to live with her
married woman, because he has not been convicted of any crime involving moral
and he told her it was better for her to go home to Iriga (t.s.n. 25). Arriving
turpitude. It is true that the respondent has not been convicted of rape, seduction, or
at Iriga, she met her legitimate husband (Arines), who told her he had
adultery on this count, and that the grounds upon which the disbarment proceedings is
already a wife, named Conching Guevara (t.s.n. 28-29). She then went
based are not among those enumerated by Section 25, Rule 127 of the Rules of Court
back to Cavinti (in 1943), with her father, and lived with respondent (t.s.n.
for which a lawyer may be disbarred. But it has already been held that this
29). Respondent eventually agreed that she live with him (t.s.n. 35); in
enumeration is not exclusive and that the power of the courts to exclude unfit and
fact, she is still presently living with respondent (t.s.n. 35) [Report of Court
unworthy members of the profession is inherent; it is a necessary incident to the
Investigators, March 6, 1962, pp. 5-6]."
proper administration of justice; it may be exercised without any special statutory
authority, and in all proper cases unless positively prohibited by statute; and the power
Thereafter, respondent requested permission to submit an affidavit at a later date, may be exercised in any manner that will give the party be disbarred a fair trial and a
which request was also granted. The affidavit was filed on December 16, 1961, the fair opportunity to be heard. (1 Francisco, Rules of Court [1958 ed.] 698, citing In Re
respondent averring, among others, the following:. Pelaez, 44 Phil. 567). Although it is a well settled rule that the legislature (or the
Supreme Court by virtue of its rule-making power) may provide that certain acts or
conduct shall require disbarment, the accepted doctrine is that statutes and rules
... That he never committed any act or crime of seduction against the
merely regulate the power to disbar instead of creating it, and that such statutes (or
complainant, because the latter was born on February 19, 1940, and his
rules) do not restrict the general powers of the court over attorneys, who are its
first sexual intercourse with her took place on May 11, 1958, when she
officers, and that they may be removed for other than statutory grounds (7 C.J.S. 734).
was already above 18 years of age; that he had been living with his
In the United States, where from our system of legal ethics is derived, "the continued
common-law wife, Briccia Angeles, for almost 20 years, but from the time
possession of a fair private and professional character or a good moral character is a
he began courting her, he 'had no intention to alienate' her love for her
requisite condition for the rightful continuance in the practice of law for one who has
husband, Arines, or to commit the crime of adultery; that he courted
been admitted, and its loss requires suspension or disbarment even though the
Briccia on October 16, 1941, and was shortly thereafter accepted by her;
statutes do not specify that as a ground of disbarment". The moral turpitude for which
that on February 21, 1942, he found Briccia alone in his house, who told
an attorney may be disbarred may consist of misconduct in either his professional or
him that her sister, Cecilia, had gone to Pagsanjan with the other
non-professional activities (5 Am. Jur. 417). The tendency of the decisions of this
evacuees; that from said date (February 21), to the present, he and
Court has been toward the conclusion that a member of the bar may be removed or
Briccia had been living together as common-law husband and wife; that 2
suspended from office as a lawyer for other than statutory grounds. Indeed, the rule is
or 3 weeks thereafter, he asked Briccia to marry him, but she confessed
so phrased as to be broad enough to cover practically any misconduct of a lawyer (In
she was already married, and maybe her husband (Arines) was still living
Re Pelaez, 44 Phil. 567). In the case at bar, the moral depravity of the respondent is
in Iriga; that he could not then drive Briccia away, because she was a
most apparent. His pretension that before complainant completed her eighteenth
stranger in the place, nor could he urge her to join her sister Cecilia, as
birthday, he refrained from having sexual intercourse with her, so as not to incur
the latter had left Pagsanjan; that in 1943 she told Briccia to separate from
criminal liability, as he himself declared — and that he limited himself merely to kissing
him and to return to Iriga, and urged her never to see him again; that
and embracing her and sucking her tongue, indicates a scheming mind, which together
contrary to his expectations, Briccia returned to Cavinti 3 months
with his knowledge of the law, he took advantage of, for his lurid purpose.
thereafter; that Briccia strongly insisted to live with him again, telling him
that she cannot separate from him anymore, as he was ashamed; that
Briccia's father told him that Briccia's husband (Arines) had agreed not to Moreover, his act becomes more despicable considering that the complainant was the
molest them as in fact he (Arines) was already living with another woman; niece of his common-law wife and that he enjoyed a moral ascendancy over her who
that he had 'no choice but to live with her' (Briccia) again; that when he looked up to him as her uncle. As the Solicitor General observed: "He also took
filed his petition to take the bar examinations in 1954, he 'did not have the advantage of his moral influence over her. From childhood, Josefina Andalis (Royong),
treated him as an uncle and called him 'tata' (uncle), undoubtedly because he is the all the evidence introduced in his investigation, with the Supreme Court,
paramour of a sister of her mother. Considering her age (she was 17 or 18 years old and the respondent shall be served by the clerk of the Supreme Court with
then), her inexperience and his moral ascendency over her, it is not difficult to see why a copy of the complaint with direction to answer the same within fifteen
she could not resist him." Furthermore, the blunt admission of his illicit relations with days.
the complainant reveals the respondent to be a person who would suffer no moral
compunction for his acts if the same could be done without fear of criminal liability. He
The contention is devoid of merit. Nothing in the language of the foregoing rules
has, by these acts, proven himself to be devoid of the moral integrity expected of a
requires the Solicitor General to charge in his complaint the same offense charged in
member of the bar.
the complaint originally filed by the complainant for disbarment. Precisely, the law
provides that should the Solicitor General find sufficient grounds to proceed against
The respondent's misconduct, although unrelated to his office, may constitute sufficient the respondent, he shall file the corresponding complaint, accompanied by the
grounds for disbarment. This is a principle we have followed since the ruling in In Re evidence introduced in his investigation. The Solicitor General therefore is at liberty to
Pelaez, 44 Phil. 567, where this Court quoted with approval the following portion of the file any case against the respondent he may be justified by the evidence adduced
decision of the Supreme Court of Kansas in the case of Peyton's Appeal (12 Kan. 398, during the investigation..
404), to wit:.
The respondent also maintains that he did not falsify his petition to take the bar
The nature of the office, the trust relation which exists between attorney examinations in 1954 since according to his own opinion and estimation of himself at
and client, as well as between court and attorney, and the statutory rule that time, he was a person of good moral character. This contention is clearly
prescribing the qualifications of attorneys, uniformly require that an erroneous. One's own approximation of himself is not a gauge to his moral character.
attorney be a person of good moral character. If that qualification is a Moral character is not a subjective term, but one which corresponds to objective
condition precedent to a license or privilege to enter upon the practice of reality. Moral character is what a person really is, and not what he or other people
the law, it would seem to be equally essential during the continuance of think he is. As former Chief Justice Moran observed: An applicant for license to
the practice and the exercise of the privilege. So it is held that an attorney practice law is required to show good moral character, or what he really is, as
will be removed not only for malpractice and dishonesty in his profession, distinguished from good reputation, or from the opinion generally entertained of him,
but also for gross misconduct not connected with his professional duties, the estimate in which he is held by the public in the place where he is known. As has
which shows him to be unfit for the office and unworthy of the privileges been said, ante the standard of personal and professional integrity which should be
which his license and the law confer upon him. (Emphasis supplied). applied to persons admitted to practice law is not satisfied by such conduct as merely
enables them to escape the penalties of criminal law. Good moral character includes
at least common honesty (3 Moran, Comments on the Rules of Court, [1957 ed.] 626,
Respondent's conduct though unrelated to his office and in no way directly bearing on
citing In Re Weinstein, 42 P. [2d] 744 B.L.D., Cooper v. Greeley. 1 Den. [N.Y.] 3447; In
his profession, has nevertheless rendered him unfit and unworthy of the privileges of a
Re Del Rosario, 52 Phil. 399; and People v. Macauley, 82 N.E. 612). Respondent,
lawyer. We cannot give sanction to his acts. For us to do so would be — as the
therefore, did not possess a good moral character at the time he applied for admission
Solicitor General puts it — recognizing "a double standard of morality, one for
to the bar. He lived an adulterous life with Briccia Angeles, and the fact that people
membership to the Philippine Bar, and another for disbarment from the office of the
who knew him seemed to have acquiesced to his status, did not render him a person
lawyer." If we concede that respondent's adulterous relations and his simultaneous
of good moral character. It is of no moment that his immoral state was discovered then
seduction of his paramour's niece did not and do not disqualify him from continuing
or now as he is clearly not fit to remain a member of the bar.
with his office of lawyer, this Court would in effect be requiring moral integrity as an
essential prerequisite for admission to the bar, only to later on tolerate and close its
eyes to the moral depravity and character degeneration of the members of the bar. WHEREFORE, judgment is hereby entered striking the name of herein respondent,
Ariston J. Oblena, from the roll of attorneys.
The decisions relied upon by the respondent in justifying his stand that even if he
admittedly committed fornication, this is no ground for disbarment, are not controlling. Bengzon, C.J., Bautista Angelo, Labrador, Concepcion, Paredes, Regala and
Fornication, if committed under such scandalous or revolting circumstances as have Makalintal, JJ., concur.
proven in this case, as to shock common sense of decency, certainly may justify Padilla, Reyes, J.B.L., and Dizon, JJ., took no part.
positive action by the Court in protecting the prestige of the noble profession of the
law. The reasons advanced by the respondent why he continued his adulterous
relations with Briccia Angeles, in that she helped him in some way finish his law
studies, and that his "sense of propriety and Christian charity" did not allow him to
abandon her after his admission to the bar after almost 13 years of cohabitation, are
hardly an excuse for his moral dereliction. The means he employed, as he stated, in
order to extricate himself from the predicament he found himself in, by courting the
complainant and maintaining sexual relations with her makes his conduct more
revolting. An immoral act cannot justify another immoral act. The noblest means he
could have employed was to have married the complainant as he was then free to do
so. But to continue maintaining adulterous relations with a married woman and
simultaneously maintaining promiscuous relations with the latter's niece is moral
perversion that can not be condoned. Respondent's conduct therefore renders him
unfit and unworthy for the privileges of the legal profession. As good character is an
essential qualification for admission of an attorney to practice, he may be removed
therefrom whenever he ceases to possess such character (7 C.J.S. 735).

The respondent further maintains that the Solicitor General exceeded his authority in
filing the present complaint against him for seduction, adultery and perjury, as it
charges an offense or offenses different from those originally charged in the complaint
of January 14, 1959 for rape, and cites as authority Sections 4 and 5 of Rule 128 of
the Rules of Court, which state:.

SEC. 4. Report of the Solicitor General.— Based upon the evidence

adduced at the hearing, if the Solicitor General finds no sufficient ground
to proceed against the respondent, he shall submit a report to the
Supreme Court containing his findings of fact and conclusion, whereupon
the respondent shall be exonerated unless the court orders differently.

SEC. 5. Complaint of the Solicitor General. Answer of the respondent. —

If the Solicitor General finds sufficient ground to proceed against the
respondent, he shall file the corresponding complaint, accompanied with
REMEDIOS RAMIREZ TAPUCAR, complainant, vs. ATTY. LAURO
L. TAPUCAR, respondent.
DECISION
PER CURIAM:
In a letter-complaint dated November 22, 1993, complainant
Remedios Ramirez Tapucar sought the disbarment of her husband,
Atty. Lauro L. Tapucar, on the ground of continuing grossly immoral
conduct for cohabiting with a certain Elena (Helen) Pea under
scandalous circumstances.[1]
Prior to this complaint, respondent was already administratively
charged four times for conduct unbecoming an officer of the court. in
Administrative Matter No. 1740, resolved on April 11, 1980,
respondent, at that time the Judge of Butuan City, was meted the
penalty of six months suspension without pay,[2] while in Administrative
Matter Nos. 1720, 1911 and 2300-CFI, which were consolidated,[3] this
Court on January 31, 1981 ordered the separation from service of
respondent.[4]
Now he faces disbarment.
The records reveal the following facts:
From the Report and Recommendation of the Commission on
Bar Discipline, it appears that complainant and respondent were
married on October 29, 1953 at the Sacred Heart Roman Catholic
Church in Quezon City. They established their residence in Antipolo,
Rizal, were eight of their eleven children were born. In 1962
respondent relocated his family to Dadiangas, Cotabato (Now General
Santos City), where his last three children were born and where he
practiced his profession until his appointment as a CFI Judge in Butuan
City on January 30, 1976.
In August, 1976, shortly after being appointed as CFI Judge,
respondent began cohabiting with a certain Elena (Helen) Pea, in
Nasipit, Agusan Del Norte. On December 28, 1977 Elena gave birth to
their first child, named Ofelia Sembrano Pea.
In view of this cohabitation, a certain Atty. Tranquilino Calo filed
an administrative complaint against respondent for immorality. After
investigation, the penalty of suspension from office for a period of six
months without pay was meted by this Court upon respondent.[5]
Despite this penalty, respondent still continued to cohabit with
Elena, giving rise to another charge of immorality and other
administrative cases, such as conduct unbecoming an officer of the
court, and grossly immoral conduct. These cases were consolidated
and after investigation, this Court ordered his dismissal and separation
from the service.[6]
But his dismissal as a judge did not impel respondent to mend
his ways. He continued living with Elena, which resulted in the birth on
September 20, 1989, of their second child named Laella Pea
Tapucar. Moreover, he completely abandoned complainant and his
children by her.
Respondent later moved from Nasipit, Agusan del Norte back to
Antipolo, Rizal, bringing along Elena and their two children. And
on March 5, 1992, respondent contracted marriage with Elena in a
ceremony solemnized by Metropolitan Trial Court Judge Isagani A.
Geronimo of Antipolo, Rizal. This was done while the respondents
marriage to complainant subsists, as nothing on record shows the
dissolution thereof.
Complainant, in the meanwhile, had migrated to United States
of America upon her retirement from the government service in
1990. However, her children, who remained in Antipolo, kept her
posted of the misery they allegedly suffered because of their fathers
acts, including deception and intrigues against them. Thus, despite
having previously withdrawn a similar case which she filed in 1976,
complainant was forced to file the present petition for disbarment
under the compulsion of the material impulse to shield and protect her
children from the despotic and cruel acts of their own
father. Complainant secured the assistance of her eldest daughter,
Atty. Ma. Susana Tapucar-Baua, to represent her in this case.
Consistent with Section 20, Rule 139-B of the Rules of Court,
the matter was referred to the Commission on Bar Discipline of the
Integrated Bar of the Philippines for investigation, report and
recommendation. After conducting a thorough investigation, the
Commission through Commissioner Victor C. Fernandez
recommended that respondent be disbarred, and his name be stricken
off the roll of attorneys. Mainly, this was premised on the ground that,
notwithstanding sanctions previously imposed upon him by the
Honorable Supreme Court, respondent continued the illicit liaison with
Elena.[7]
In his report Commissioner Fernandez noted that, instead of
contradicting the charges against him, respondent displayed
arrogance, and even made a mockery of the law and the Court, as
when he said:
I have been ordered suspended by Supreme Court for two months
without pay in 1980 for having a mistress, the same girl Ms. Elena
(Helen) Pea, now my wife. Being ordered separated in later
administrative case constitute double jeopardy. If now disbarred for
marrying Ms. Elena Pea will constitute triple jeopardy. If thats the law
so be it.[8]
Based on said report, the Board of Governors of the Integrated
Bar of the Philippines, passed on May 17, 1997, a Resolution adopting
the Commissioners recommendation, as follows:
RESOLUTION NO. XII-97-97
Adm. Case No. 4148
Remedios Ramirez Tapucar vs. Atty. Lauro L. Tapucar
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED
and APPROVED, the Report and Recommendation of the
Investigating Commissioner in the above-titled case, herein made
part of the Resolution/Decision as Annex A; and, finding the
recommendation therein to be fully supported by the evidence on
record and the applicable laws and rules, Respondent Atty. Lauro L.
Tapucar is hereby DISBARRED and that his name be stricken off the
roll of attorneys.
We find the Report and Recommendation of Commissioner
Fernandez, as approved and adopted by the Board of Governors of
IBP, more than sufficient to justify and support the foregoing
Resolution, herein considered as the recommendation to this Court by
said Board pursuant to Rule 139-B, Sec. 12(b), of the Rules of
Court.* We are in agreement that respondents actuations merit the
penalty of disbarment.
 Well settled is the rule that good moral character is not only a
condition precedent for admission to the legal profession, but it must
also remain intact in order to maintain ones good standing in that
exclusive and honored fraternity.[9] There is perhaps no profession
after that of the sacred ministry in which a high-toned morality is more
imperative than that of law.[10] The Code of Professional Responsibility
mandates that:
Rule 1.01. A lawyer shall not engage in unlawful,
dishonest, immoral or deceitful conduct.
Rule 7.03 A lawyer shall not engage in conduct that adversely
reflects on his fitness to practice law, nor should he, whether in
public or private life, behave in a scandalous manner to the
discredit of the legal profession.*
As this Court often reminds members of the Bar, they must live
up to the standards and norms expected of the legal profession, by
upholding the ideals and tenets embodied in the Code of Professional
Responsibility always. Lawyers must maintain a high standards of
legal proficiency, as well as morality including honesty, integrity and
fair dealing. For they are at all times subject to the scrutinizing eye of
public opinion and community approbation. Needless to state, those
whose conduct both public and private fails this scrutiny would have to
be disciplined and, after appropriate proceedings, penalized
accordingly.
Moreover, it should be recalled that respondent here was once
a member of the judiciary, a fact that aggravates this professional
infractions. For having occupied that place of honor in the Bench, he
knew a judges actuations ought to be free from any appearance of
impropriety.[11] For a judge is the visible representation of the law, more
importantly, of justice. Ordinary citizens consider him as a source of
strength that fortifies their will to obey the law.[12] Indeed, a judge
should avoid the slightest infraction of the law in all of his actuations,
lest it be a demoralizing example to others.[13] Surely, respondent
could not have forgotten the Code of Judicial Conduct entirely as to
lose its moral imperatives.[14]
Like a judge who is held to a high standard of integrity and ethical
conduct,[15] an attorney-at-law is also invested with public trust. Judges
and lawyers serve in the administration of justice. Admittedly, as
officers of the court, lawyers must ensure the faith and confidence of
the public that justice is administered with dignity and civility. A high
degree or moral integrity is expected of a lawyer in the community
where he resides. He must maintain due regard for public decency in
an orderly society.
A lawyer is expected at all times to uphold the integrity and
dignity of the legal profession by faithfully performing his duties to
society, to the bar, to the courts and to his clients.[16] Exacted from him,
as a member of the profession charged with the responsibility to stand
as a shield in the defense of what is right, are such positive qualities
of decency, truthfulness and responsibility that have been
compendiously described as moral character. To achieve such end,
every lawyer needs to strive at all times to honor and maintain the
dignity of his profession, and thus improve not only the public regard
for the Bar but also the administration of justice.
On these considerations, the Court may disbar or suspend a
lawyer for misconduct, whether in his professional or private capacity,
which shows him to be wanting in moral character, in honesty, probity,
and good demeanor, thus proving unworthy to continue as an officer
of the court.[17]
The power to disbar, however, is one to be exercised with great
caution, and only in a clear case of misconduct which seriously affects
the standing and character of the lawyer as an officer of the Court of
and member of the bar.[18] For disbarment proceedings are intended to
afford the parties thereto full opportunity to vindicate their cause before
disciplinary action is taken, to assure the general public that those who
are tasked with the duty of administering justice are competent,
honorable, trustworthy men and women in whom the Courts and the
clients may repose full confidence.
In the case of Obusan vs. Obusan, Jr.,[19] a complaint for
disbarment was filed against a member of the bar by his wife. She was
able to prove that he had abandoned his wife and their son; and that
he had adulterous relations with a married but separated
woman. Respondent was not able to overcome the evidence
presented by his wife that he was guilty of grossly immoral conduct. In
another case,[20] a lawyer was disbarred when he abandoned his lawful
wife and cohabited with another woman who had borne him a
child. The Court held that respondent failed to maintain the highest
degree of morality expected and required of a member of a bar.
In the present case, the record shows that despite previous
sanctions imposed upon by this Court, respondent continued his illicit
liaison with a woman other than lawfully-wedded wife. The report of
the Commissioner assigned to investigate thoroughly the complaint
found respondent far from contrite; on the contrary, he exhibited a
cavalier attitude, even arrogance; in the face of charges against
him. The IBP Board of Governors, tasked to determine whether he still
merited the privileges extended to a member of the legal profession,
resolved the matter against him. For indeed, evidence of grossly
immoral conduct abounds against him and could not be explained
away. Keeping a mistress, entering into another marriage while a prior
one still subsists, as well as abandoning and/or mistreating
complainant and their children, show his disregard of family
obligations, morality and decency, the law and the lawyers oath. Such
gross misbehavior over a long period of time clearly shows a serious
flaw in respondents character, his moral indifference to scandal in the
community, and his outright defiance of established norms. All these
could not but put the legal profession in disrepute and place the
integrity of the administration of justice in peril, hence the need for strict
but appropriate disciplinary action.
IN VIEW THEREOF, respondent Atty. Lauro L. Tapucar is
hereby DISBARRED. The Clerk of Court is directed to strike out his
name from the Roll of Attorneys.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Melo, Puno,
Vitug, Kapunan, Mendoza, Panganiban, Martinez, and Quisumbing,
JJ., concur.
Bellosillo, no part due to personal relationships.
Purisima, J., no part.
 FIRST DIVISION
G.R. No. 156643
VLADIMIR S. HERNANDEZ, Petitioner, - versus -
PEOPLE OF THE PHILIPPINES,
Respondent. June 27, 2006
DECISION
PANGANIBAN, CJ:
This Court defers to the Sandiganbayans evaluation of the factual issues. Not having heard
any cogent reasons to justify an exception to this rule, the Court adopts the anti-graft courts
findings. In any event, after meticulously reviewing the records, we find no ground to reverse
the Sandiganbayan.
The Case
Before us are consolidated Petitions for Review[1] assailing the March 8,
2002Decision,[2] and the January 3[3] and 14, 2003[4] Resolutions of the Sandiganbayan in
Criminal Case No. 20194. Francisco SB. Acejas III and Vladimir S. Hernandez were found
guilty beyond reasonable doubt of direct bribery penalized under Article 210 of the Revised
Penal Code.
Vladimir S. Hernandez, Victor D. Conanan, SPO3 Expedito S. Perlas, Francisco
SB. Acejas III and Jose P. Victoriano were charged on February 8, 1994, in an Information that
reads thus:
That on or about January 12, 1994, or sometime prior
thereto in the City of Manila, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused VLADIMIR S.
HERNANDEZ and VICTOR CONANAN, being then employed both
as Immigration officers of the Bureau of Immigration and
Deportation, Intramuros, Manila, hence are public officers, taking
advantage of their official positions and committing the offense in
relation to office, conspiring and confederating with Senior Police
Officer 3 EXPEDITO S. PERLAS of the Western Police District
Command, Manila, together with co-accused Atty. FRANCISCO
SB. ACEJAS III, of the LUCENARIO, MARGATE, MOGPO,
TIONGCO & ACEJAS LAW OFFICES, and co-accused JOSE P.
VICTORIANO, a private individual, did then and there, willfully,
unlawfully and feloniously demand, ask, and/or extort One Million
(P1,000,000.00) PESOS from the spouses BETHEL GRACE
PELINGON and Japanese TAKAO AOYAGI and FILOMENO
PELINGON, JR., in exchange for the return of the passport of said
Japanese Takao Aoyagi confiscated earlier by co-accused Vladimir
S. Hernandez and out of said demand, the complainants Bethel
Grace Pelingon, Takao Aoyagi and Filomeno Pelingon, Jr.
produced, gave and delivered the sum of Twenty Five Thousand
(P25,000.00) Pesos in marked money to the above-named
accused at a designated place at the Coffee Shop, Ground Floor,
Diamond Hotel, Ermita, Manila, causing damage to the said
complainants in the aforesaid amount of P25,000.00, and to the
prejudice of government service.[5]
After trial, all the accused -- except Victoriano -- were convicted. The challenged
Decision disposed as follows:
WHEREFORE, premises considered, accused
Vladimir S. Hernandez, Victor D. Conanan, Expedito S. Perlas and
Francisco SB. Acejas III are hereby found GUILTY beyond
reasonable doubt of the crime of Direct Bribery, and are sentenced
to suffer the indeterminate penalty of four (4) years, nine (9) months
and ten (10) days of prision correccional, as minimum, to seven (7)
years and four (4) months of prision mayor, as maximum, and to
pay a fine of three million pesos (P3,000,000.00). Accused Vladimir
S. Hernandez and Victor D. Conanan shall also suffer the penalty
of special temporary disqualification. Costs against the accused.
On ground of reasonable doubt, accused Jose P.
Victoriano is hereby ACQUITTED of the crime charged. The surety
bond he posted for his provisional liberty is cancelled.The Hold
Departure Order against him embodied in this Courts Order
dated July 24, 2000is recalled.[6]
The first Resolution acquitted Conanan and denied reconsideration of the other
accused. The second Resolution denied Petitioner Acejas Motion for New Trial.
Hence, petitioners now seek recourse in this Court.[7]
The Facts
The facts[8] are narrated by the Sandiganbayan as follows:
At around 4:00 to 5:00 p.m. of December 17, 1993,
accused Bureau of Immigration and Deportation (BID) Intelligence
Agent Vladimir Hernandez, together with a reporter, went to the
house of Takao Aoyagi and Bethel Grace Pelingon-Aoyagi at 27
Pacific Drive, Grand Villa, Sto. Nio, Paraaque, Metro Manila. His
purpose was to serve Mission Order No. 93-04-12 dated December
13, 1993, issued by BID Commissioner Zafiro Respicio against
Takao Aoyagi, a Japanese national. Hernandez told Takao Aoyagi,
through his wife, Bethel Grace, that there were complaints against
him in Japan and that he was suspected to be a Yakuza big boss,
a drug dependent and an overstaying alien.
To prove that he had done nothing wrong, Takao
Aoyagi showed his passport to Hernandez who issued an
undertaking (Exh. B) which Aoyagi signed. The undertaking stated
that Takao Aoyagi promised to appear in an investigation at the BID
on December 20, 1993, and that as a guarantee for his
appearance, he was entrusting his passport to Hernandez.
Hernandez acknowledged receipt of the passport.
On December 18, 1993, Bethel Grace Aoyagi called accused
Expedito Dick Perlas[9] and informed him about the taking of her
husbands passport by Hernandez. Perlas told her he would refer
their problem to his brother-in-law, Atty. Danton Lucenario of the
Lucenario, Margate, Mogpo, Tiongco and Acejas III Law Firm. It
was at the Sheraton Hotel that Perlas introduced the Aoyagis to
Atty. Lucenario. They discussed the problem and Atty. Lucenario
told the Aoyagis not to appear before the BID on December 20,
1993.
As advised by Atty. Lucenario, Takao Aoyagi did not appear before
the BID. Instead, Atty. Rufino M. Margate of the Lucenario Law Firm
filed with the BID an Entry of Appearance (Exh. 6 Acejas). Atty.
Margate requested for copies of any complaint-affidavit against
Takao Aoyagi and asked what the ground was for the confiscation
of x x x Aoyagis passport.
Hernandez prepared a Progress Report (Exh. 5 Hernandez) which
was submitted to Ponciano M. Ortiz, the Chief of Operations and
Intelligence Division of the BID. Ortiz recommended that Takao
Aoyagi, who was reportedly a Yakuza and a drug dependent, be
placed under custodial investigation.
In the evening of December 22, 1993 at the Diamond Hotel, the
Aoyagis met accused Atty. Francisco Acejas III who was then
accompanied by Perlas. Atty. Acejas informed them that it would be
he who would handle their case. A Contract for Legal Services
(Exh. D) dated December 22, 1993 was entered into by Takao
Aoyagi and Atty. Acejas, who represented the Lucenario Law Firm.
In the morning of December 23, 1993, Perlas and Atty. Acejas
accompanied the Aoyagis to the Domestic Airport as the latter were
going to Davao. It was here that Takao Aoyagi paid Atty.
Acejas P40,000.00, P25,000 of which is 50% of the acceptance
fee, and the P15,000.00 is for filing/docket fee (Exh. O). The
Aoyagis were able to leave only in the afternoon as the morning
flight was postponed.
On December 24, 1993, while attending a family reunion, Bethel
Grace Pelingon-Aoyagi informed her brother, Filomeno Jun
Pelingon, Jr., about her husbands passport.
On January 2, 1994, Jun Pelingon talked to BID Commissioner
Zafiro Respicio in Davaoand told the latter of Takao Aoyagis
problem with the BID. Respicio gave Pelingon his calling card and
told Pelingon to call him up in his office. That same day, Jun
Pelingon and Mr. and Mrs. Aoyagi flew back to Manila.
On January 5, 1994, Jun Pelingon, Dick Perlas, Atty. Acejas,
Vladimir Hernandez, Vic Conanan and Akira Nemoto met at the
Aristocrat Restaurant in Roxas Boulevard.
Another meeting was arranged at the Manila Nikko Hotel
in Makati on January 8, 1994with Jun Pelingon, Perlas, Atty. Acejas
and Hernandez attending.
On January 11, 1994, on account of the alleged demand of P1
million for the return of Takao Aoyagis passport, Jun Pelingon
called up Commissioner Respicio. The latter referred him to Atty.
Angelica Somera, an NBI Agent detailed at the BID. It was Atty.
 Carlos Saunar, also of the NBI, and Atty. Somera who arranged the
entrapment operation.
On January 12, 1994, Vladimir Hernandez returned the passport to
Takao Aoyagi at the Coffee Shop of the Diamond Hotel. The NBI
Team headed by Attorneys Saunar and Somera arrested Dick
Perlas, Atty. Acejas and Jose Victoriano after the latter picked up
the brown envelope containing marked money representing the
amount being allegedly demanded. Only Perlas, Acejas and
Victoriano were brought to the NBI Headquarters.[10]
Version of the Prosecution
Testifying for the prosecution were Bethel Grace Pelingon Aoyagi, Filomeno Jun
Basaca Pelingon, Jr., and Carlos Romero Saunar.[11]
The prosecution evidence showed that it was during a meeting on January 5,
1994, when P1 million as consideration for the passport was demanded. Conanan averred
that Aoyagi was a drug trafficker and Yakuza member. The money was to be used to settle
the alleged problem and to facilitate the processing of a permanent visa. When Pelingon
negotiated to lower the amount demanded, Conanan stated that there were many of them in
the Bureau of Immigration and Deportation (BID).[12]
During the second meeting held at Hotel Nikko, Pelingon was informed that the
press and government enforcers were after Aoyagi. Hernandez asked for a partial payment
of P300,000, but Pelingon said that the whole amount would be given at just one time to avoid
another meeting.[13]
After talking to Commissioner Respicio on January 11, 1994,[14] Pelingon called
up Dick Perlas to schedule the exchange.
Regarding the involvement of Petitioner Acejas, the Office of the Solicitor
General (OSG) adds the following facts:
1.2. On 5 January 1994, [Acejas] and Perlas met
Pelingon at the Aristocrat Restaurant. [Acejas] informed Pelingon
that he would file a P1 million lawsuit against the BID agents who
confiscated the passport of Takao Aoyagi. [Acejas] showed
Pelingon several papers, which allegedly were in connection with
the intended lawsuit. However, when Hernandez and Conanan
arrived at the Aristocrat Restaurant, [Acejas] never mentioned to
the BID agents the P1 million lawsuit. [Acejas] just hid the papers
he earlier showed to Pelingon inside his [Acejas] bag.
1.3. [Acejas] was present when Hernandez proposed
that Takao Aoyagi pay the amount of P1 million in exchange for the
help he would extend to him (Takao) in securing a permanent visa
in the Philippines. [Acejas], who was Aoyagis lawyer, did nothing.
1.4. On 10 January 1994, [Acejas], Pelingon, Perlas
and Hernandez met at the Hotel Nikko. Thereat, Hernandez
informed the group that certain government officials and even the
press were after Takao Aoyagi. Hernandez said that Takao Aoyagi
can make a partial payment of P300,000.00. Pelingon however,
assured the group that Takao Aoyagi would pay in full the amount
of P1 million so as not to set another meeting date. [Acejas] kept
quiet throughout the negotiations.
xxxxxxxxx
1.5.a. [Acejas] was present during the entrapment
that took place at the Diamond Hotel. Hernandez handed the
passport to [Acejas], who handed it then to Perlas and thereafter to
Takao Aoyagi. After Takao Aoyagi went over his confiscated
passport, Bethel Grace handed to Hernandez the
envelope[15] containing the supposed P1 million.Hernandez
refused and motioned that [Acejas] be the one to receive it. [Acejas]
willingly got the envelope and placed it beside him and Perlas.
x x x before Hernandez handed out Aoyagis pass-
port, he reminded the group of their earlier agreement of kaliwaan,
i.e., that after the passport is released, the Aoyagis should give
the P1 million.[16]
Version of the Defense
Vladimir S. Hernandez, Expedito S. Perlas, Francisco SB. Acejas III, Victor D. Conanan and
Ponciano M. Ortiz testified for the defense.[17]
To the Sandiganbayans narration, Hernandez adds:
6. x x x [Hernandez], an intelligence agent of the Bureau of
Immigration and Deportation (BID), went to the house of Private
Respondents Takao and Bethel Grace Aoyagi to enforce and serve
a Mission Order issued and assigned to him by BID Commissioner
Zafiro Respicio on December 13, 1993, for the arrest of Takao
Aoyagi.
7. When Bethel Grace showed [Hernandez] her
husbands passport, [Hernandez] found out that the latters
[authority] to stay had already been duly extended. He invited
private respondents to go with him to the BID office. They declined,
but made a written undertaking to appear at the BID office for
investigation on December 20, 1993. As security for said
undertaking, Bethel Grace Aoyagi entrusted to [Hernandez] her
husbands passport, receipt of which [Hernandez], in return,
acknowledge[d] in the same instrument.
8. On January 19, 1994, [Hernandez] signified that
the record of Aoyagi has been cleared and that he can pick up his
passport at the BID office. In connection therewith, [Hernandez]
was invited by Perlas to make the return at a lunchtime meeting to
be held at the Diamond Hotel Coffee Shop. Upon arrival thereat,
[Hernandez] gave the passport to Atty. Acejas, Aoyagis counsel,
and within less than ten minutes, he left the coffee shop.[18]
In his Petition, Acejas narrates some more occurrences as follows:
1. 18th December 1993 The law firm of Lucenario Margate Mogpo
Tiongco & Acejas was engaged by the spouses Takao Aoyagi and
Bethel Grace Pelingon Aoyagi. x x x.
xxxxxxxxx
3. 22nd December 1993
a) The managing partner of the law firm, Atty. Lucenario, briefed
[Acejas] about the facts regarding the confiscation by agents of the
BID of the passport belonging to a Japanese client. x x x.
b) Thereafter, [Acejas] was tasked by Atty. Lucenario to meet his
brother-in-law Mr. Expedito Perlas, who happened to be a
policeman and a friend of Mr. Takao Aoyagi. Thus, [Acejas] met Mr.
Perlas for the first time in the afternoon of this date.
c) Also, for the first time, [Acejas] met the clients, spouses Aoyagis,
at the Diamond Hotel, where they were staying. x x x [Acejas]
advised them that the law firm decided that the clients can file an
action for Replevin plus Damages for the recovery of the Japanese
passport.
d) The CONTRACT FOR LEGAL SERVICES was signed between
the client and the law firm, thru [Acejas] as partner
thereof. x x x The amount of Fifty Thousand Pesos
(Php.50,000.00) was agreed to be paid by way of Case
Retainers/Acceptance Fees, which was supposed to be
payable upon (the) signing (t)hereof, and the sum of Php.2,000.00
by way of appearance fee. However, the client proposed to pay half
only of the acceptance fee (Php.25,000.00), plus the estimated
judicial expenses for the filing or docket fees
(Php.15,000.00). x x x It was then further agreed that the balance
of Php.25,000.00 was supposed to be given upon the successful
recovery of the Japanese passport.
e) The clients informed [Acejas] that they are supposed to leave for
Davao the following day on the 23 rd because they will spend their
Christmas in Davao City; but they promised that they will be back
on the 26th, which is a Sunday, so that on the 27th, which is a
Monday, the complaint against the BID officers will have to be filed
in Court.
xxxxxxxxx
6. 27 th
December 1993 (T)he law office received word from
Mr. Perlas that the Japanese did not come back on the
26 th (December), x x x so that the case cannot be filed on
the 27 th instead (it has) to wait for clients instruction.
7. 4th January 1994 In the late afternoon, the law firm received a
telephone call from Mr. Perlas informing (it) that the Japanese is
already in Manila and he was requesting for an appointment with
any of the lawyer of the law firm on January 5, 1994.
8. 5th January 1994 [Acejas] met for the first time Mr. Filomeno
Pelingon Jr. including a certain Nimoto Akira.
x x x.

b) [Acejas] told Mr. Pelingon Jr. that all the pleadings are ready for
filing but, of course, the Japanese client and the wife should first
read the complaint and sign if they want to pursue the filing of the
complaint against the BID agents.
c) For the first time, Mr. Pelingon advised against the intended
filing of the case. x x x He instead suggested that he wants to
directly negotiate with the BID agents.
d) Thereafter, Mr. Pelingon instructed Mr. Dick Perlas to contact
the BID agent who confiscated the Japanese passport. Mr. Perlas
and Mr. Pelingon were able to contact the BID agent.
e) For the first time [Acejas] saw Mr. Hernandez, when the latter
arrived and also accused Victor Conanan. In the course of the
meeting, a confrontation ensued between [Acejas] and
[Hernandez] concerning the legal basis for the confiscation of the
passport. [Acejas] demanded for the return of the Japanese
passport x x x. Mr. Hernandez said that if there are no further
derogatory report concerning the Japanese client, then in a matter
of week (from January 5 to 12), he will return the passport.
f) [Acejas] gave an ultimatum to Mr. Hernandez that if the Japanese
passport will not be returned in one (1) weeks time, then (the law
firm) will pursue the filing of the replevin case plus the damage suit
against him including the other BID agents.
g) x x x Mr. Pelingon Jr. for the second time advised against the
filing thereof saying that his Japanese brother-in-law would like to
negotiate or in his own words magbibigay naman [i.e. will give
money anyway].
9. 8th January 1994
a) Again, Mr. Perlas called the law office and informed x x x that the
Japanese client is now in Manila. Petitioner attended the meeting
they arranged in (Makati) and meet Dick Perlas, Vladimir Hernandez
and Pelingon Jr. x x x.
b) x x x according to Pelingon Jr., the Japanese does not want to
meet with anybody because anyway they are willing to pay or
negotiate.
c) [Hernandez was also] present at the meeting and [Acejas] met
him for the second time.x x x [Acejas] said that if [Hernandez] will
not be able to return the passport on or before January 12, 1994,
then the law firm will have no choice but to file the case against
him x xx. Again, for the third time Mr. Pelingon warned against the
filing of the case because he said that he would directly negotiate
with the BID agents.
d) The Makati meeting ended up with the understanding that Mr.
Hernandez will have to undertake the return [of] the Japanese
passport on or before January 12, 1994.
10. 12th January 1994
a) Mr. Perlas called up the law office informing that the Japanese
client was already in Manila and was requesting for an appointment
with the lawyers at lunchtime of January 12 at the Diamond Hotel
where he was billeted.
xxxxxxxxx
c) x x x x x x x x x
At this meeting, the Japanese was inquiring on the status of the
case and he was wondering why the Japanese passport is not yet
recovered when according to him he has already paid for the
attorney fees. And so, [Acejas] explained to him that the case has
to be filed and they still have to sign the complaint, the Special
Power of Attorney and the affidavit relative to the filing of replevin
case. But the Japanese would not fully understand.So, Pelingon Jr.
again advised against the filing of the case saying that since there
is no derogatory record of Mr. Aoyagi at the BID office, then the BID
agents should return the Japanese passport.
xxxxxxxxx
e) Thereafter, Pelingon, Jr. and Dick Perlas x x x tried to contact
Mr. Hernandez. Since, they were able to contact the latter, we
waited until around 2:00 p.m.. When Mr. Hernandez came, he said
that the Japanese client is cleared at the BID office and so, he can
return the Japanese passport and he gave it to
[Acejas]. x x x When [Acejas] received the Japanese passport, (he)
checked the authenticity of the documents and finding that it was in
good order, (he) attempted to give it to the Japanese client.
Very strangely when [Acejas] tried to hand-over the Japanese
passport to the Japanese across the table, the Japanese was
motioning and wanted to get the passport under the
table. x x x [Acejas] found it strange. (He) x x x thought that it was
a Japanese custom to receive things like that under the table. But
nonetheless, [Acejas] did not give it under the table and instead
passed it on to Mr. Dick Perlas who was seated at (his) right. And
so, it was Mr. Dick Perlas who took the passport from [Acejas] and
finally handed it over to Mr. Aoyagi. x x x. After that, there was a
little chat between Mr. Hernandez and the client, and Mr.
Hernandez did not stay for so long and left.
Still, thereafter, (w)hen the Japanese passport was received,
Bethel Grace Aoyagi and [Acejas] were talking and she said since
the Japanese passport had been recovered, they are now willing to
pay the Php.25,000.00 balance of the acceptance fee.
Mrs. Aoyagi was giving [Acejas] a brown envelope but she want[ed]
Mr. Hernandez to receive it while Mr. Hernandez was still around
standing. But Mr. Hernandez did not receive it.
Since, the payment is due to the law firm, [Acejas] received the
brown envelope.
xxxxxxxxx
Not long after, [Acejas] saw his companion, accused
Mr. Victoriano, who was signaling something as if there was a
sense of urgency. [Acejas] immediately stood up and left
hurriedly. When [Acejas] approached Mr. Victoriano, he said that
the car which [Acejas] parked in front of the Diamond Hotel gate,
somebody took the car. [Acejas] went out and checked and
realized that it was valet parking so it was the parking attendant
who took the car and transferred the car to the parking
area. [Acejas] requested Mr. Victoriano to get (the) envelope and
the coat, at the table.
g) When [Acejas] went out, [Acejas] already looked
for the parking attendant to get the car. When the car arrived,
[Acejas] just saw from the doors of the Diamond Hotel Mr.Jose
Victoriano and Mr. Dick Perlas coming out already in handcuffs and
collared by the NBI agents. They then were taken to the
NBI, except the accused Vladimir Hernandez.[19]
Ruling of the Sandiganbayan
The Sandiganbayan ruled that the elements of direct bribery, [20] as well as conspiracy in the
commission of the crime,[21] had been proven. Hernandez and Conanan demanded
money;[22] Perlas negotiated and dealt with the complainants;[23] and Acejas accepted the
payoff and gave it to Perlas.[24]
Victoriano was acquitted on reasonable doubt.[25] Although he had picked up the
envelope containing the payoff, this act did not sufficiently show that he had conspired with
the other accused.[26]
The Sandiganbayan did not give credence to the alleged belief of Acejas that the money was
the balance of the law firms legal fees.[27] If he had indeed believed that the money was
payable to him, he should have kept and retained it. The court then inferred that he had merely
been pretending to protect his clients rights when he threatened to file a suit against
Hernandez.[28]
The January 3, 2003 Resolution acquitted Conanan and denied the Motions for
Reconsideration of Hernandez, Acejas and Perlas. According to the Sandiganbayan,
Conanan was not shown to be present during the meetings on January 8 and 12, 1994.[29]His
presence during one of those meetings, on January 5, 1994, did not conclusively show his
participation as a co-conspirator.
The January 14, 2003 Resolution denied Acejas Supplemental Motion, which
prayed for a new trial.
The Issues
Petitioner Hernandez raises the following issues:
 I. Whether or not respondent court erred in ruling that [Hernandez]
was part of the conspiracy to extort money from Q: What happened after he gave the passport to Atty.
private respondents, despite lack of clear and Acejas?
convincing evidence. A: [Acejas] gave the passport to Mr. Expedito Perlas,
sir.
II. Whether or not the Honorable Sandiganbayan gravely abused
its discretion when it overlooked the fact that the legal Q: After that, what happened?
requisites of the crime are not completely present as A: Then, [Perlas] gave it to Mr. Aoyagi, sir.
to warrant [Hernandez] complicity in the crime
charged. Q: The passport?
A: Yes, sir.
III. Whether or not respondent Sandiganbayan, Division, ruled
5th
erroneously when it relied solely on the naked and Q: And when Mr. Aoyagi received the passport, what
uncorroborated testimonies of the late Filomeno Jun did you do or what did Mr. Aoyagi do?
Pelingon, Jr. in order to declare the existence of a A: He checked all the pages and he kept it, sir.
conspiracy to commit bribery, as well as the guilt of
the accused. xxxxxxxxx

IV. Whether or not [respondent] courts acquittal of co-accused Q: What did you do with that money after Mr. Aoyagi
Victor Conanan and its conviction of [Hernandez] for received the passport?
the offense as charged effectively belies the A: Because our agreement is that after giving the
existence of a conspiracy. passport we would give the money so
when Mr. Perlas handed to my husband
V. Whether or not the respondent Sandiganbayan committed grave the passport, I gave the money placed
abuse of discretion amounting to lack of, or in excess on my lap to my husband and he passed
of jurisdiction when it found [Hernandez] guilty it to Mr. Hernandez who refused the
beyond reasonable doubt of the crime of direct same.
bribery.[30]
ATTY. ACEJAS:
On the other hand, Petitioner Acejas simply enumerates the following points: Your Honor, please, may I just make a clarification that when the
witness referred to the money it pertains to the brown envelope
1. The Conspiracy Theory which allegedly contains the money x x x .
2. The presence of lawyer-client relationship; duty to clients cause;
lawful performance of duties AJ ESCAREAL:
3. Instigation not entrapment
4. Credibility of witness and testimony Noted.
5. Affidavit of desistance; effect: creates serious doubts as to the
liability of the accused PROSECUTOR MONTEMAYOR:
6. Elements of bad faith
7. Elements of the crime (direct bribery) Q: Did Mr. Hernandez got hold or touched the
8. Non-presentation of complaining victim tantamount to envelope?
suppression of evidence[31] A: No, sir.

In the main, petitioners are challenging the finding of guilt against them. The Q: When he [did] not want to receive the envelope,
points they raised are therefore intertwined and will be discussed jointly. what did your husband do?
A: When Mr. Vlademir Hernandez refused to receive
The Courts Ruling the money, he pointed to Atty. Acejas so
my husband handed it to Atty. Acejas
The Petitions have no merit. who received the same and later on
passed it to Mr. Perlas.
Main Issue:
Finding of Guilt Q: When Mr. Hernandez pointed to Atty. Acejas, did
he say anything?
A: None, sir, he just motioned like this.
The crime of direct bribery exists when a public officer 1)
agrees to perform an act that constitutes a crime in consideration of any offer, promise, gift or INTERPRETER:
present; 2) accepts the gift in consideration of the execution of an act that does not constitute Witness motioning by [waving] her two (2) hands, left
a crime; or 3) abstains from the performance of official duties.[32] and right.

Petitioners were convicted under the second kind of direct bribery, which
contained the following elements: 1) the offender was a public officer, 2) who received the gifts PROSECUTOR MONTEMAYOR:
or presents personally or through another, 3) in consideration of an act that did not constitute
a crime, and 4) that act related to the exercise of official duties.[33] Q: And at the same time pointed to Atty. Acejas?
A: Yes, sir.
Hernandez claims that the prosecution failed to show his involvement in the crime.Allegedly,
he was merely implementing Mission Order No. 93-04-12, which required him to investigate Q: And your husband gave the envelope to Atty.
Takao Aoyagi.[34] The passport was supposed to have been voluntarily given to him as a Acejas?
guarantee to appear at the BID office, but he returned it upon the instruction of his superior. [35] A: Yes, sir.
The chain of circumstances, however, contradicts the contention of Hernandez. It was he who
had taken the passport of Takao Aoyagi.[36] On various dates,[37] he met with Takao and Bethel Q: And Atty. Acejas, in turn, handed the said
Grace Aoyagi, and also Pelingon, regarding the return of the passport.Hernandez then asked envelope to whom?
for a down payment on the payoff,[38] during which he directed Bethel Grace to deliver the A: Expedito Perlas, sir.
money to Acejas.[39]
Q: Did Expedito Perlas [receive] that envelope?
Bethel Grace Aoyagis testimony, which was confirmed by the other witnesses, proceeded as A: Yes, sir.
follows:
Q: After that, what happened?
PROSECUTOR MONTEMAYOR: A: Mr. Perlas put the money on his side in between
him and Atty. Acejas, sir.
Q: When Vlademir Hernandez arrived, what
happened? Q: And then, what happened?
A: He got the passport from his pocket and passed it A: After the money was placed where it was, we were
on to Atty. Acejas, sir. surprised, I think, it happened in just
 seconds[.] Mr. Vlademir Hernandez
immediately left and then all of a sudden
somebody came and picked up the
envelope, sir.[40]
Significantly, Hernandez does not address the lingering questions about why Takao Aoyagi or
his representatives had to negotiate for the retrieval of the passport during the meetings held
outside the BID. Ponciano Ortiz, chief of the Operation and Intelligence Division of the BID,
testified that it was not a standard operating procedure to officially return withheld passports
in such locations.[41] It can readily be inferred that Hernandez had an ulterior motive for
withholding the passport for some time despite the absence of any legal purpose.
Also, Hernandez cannot claim innocence based on Conanans acquittal.[42] While the
testimony of Pelingon was the only evidence linking Conanan to the conspiracy,[43] there was
an abundance of evidence showing Hernandezs involvement.
Acejas, on the other hand, belies his involvement in the conspiracy. He attacks the
prosecutions version that he was silent during the negotiations for the return of the
passport.[44] According to him, he kept giving Hernandez an ultimatum to return the passport,
with threats to file a court case.
Acejas testified that he had wanted to file a case against Hernandez, but was prevented by
Spouses Aoyagi. His supposed preparedness to file a case against Hernandez might have
just been a charade and was in fact belied by Pelingons testimony regarding the January 5,
1994meeting:
ATTY. VALMONTE:
Q: Who arrived first at Aristocrat Restaurant, you or
Acejas?
A: Acejas arrived together with Dick Perlas[. T]hey
arrived ahead of me, sir.
xxxxxxxxx
Q: When the three (3) of you were talking that was the
time that Atty. Acejas was showing you
documents that he was going to file
[a] P1 million damage suit against
Hernandez?
A: Yes, sir.
Q: Now, is it not that when Hernandez and Cunanan
arrived and you were talking with each
other, Atty. Acejas also threatened,
reiterated his threat to Hernandez that
he would file [a] P1 million damage suit
should Hernandez [fails] to return the
passport?
A: When the group [was] already there, the P1 million
[damage suit] was not [anymore]
mentioned, sir.[45]
Even assuming that Acejas negotiated for the return of the passport on his clients behalf, he
still failed to justify his actions during the entrapment operation. The witnesses all testified that
he had received the purported payoff. On this point, we recount the testimony of Bethel Grace
Aoyagi:
PROSECUTOR MONTEMAYOR:
xxxxxxxxx
Q: When he [did] not want to receive the envelope,
what did your husband do?
A: When Mr. Vlademir Hernandez refused to receive
the money, he pointed to Atty. Acejas so
my husband handed it to Atty. Acejas
who received the same and later on
passed it to Mr. Perlas.
Q: When Mr. Hernandez pointed to Atty. Acejas, did
he say anything?
A: None, sir, he just motioned like this.
INTERPRETER:
Witness motioning by [waving] her two (2) hands, left
and right.
PROSECUTOR MONTEMAYOR:
Q: And at the same time pointed to Atty. Acejas?
A: Yes, sir.
Q: And your husband gave the envelope to Atty.
Acejas?
A: Yes, sir.
Q: And Atty. Acejas, in turn, handed the said
envelope to whom?
A: Expedito Perlas, sir.
xxxxxxxxx
Q: After that, what happened?
A: Mr. Perlas put the money on his side in between
him and Atty. Acejas, sir.
Q: And then, what happened?
WITNESS:
A: After the money was placed where it was, we were
surprised, I think, it happened in just
seconds[.] Mr. Vladimir Hernandez
immediately left and then all of a sudden
somebody came and picked up the
envelope, sir.
PROSECUTOR MONTEMAYOR:
Q: Do you know the identity of that somebody who
picked up the envelope?
xxxxxxxxx
A: Victoriano, sir.[46]
Acejas failed to justify why he received the payoff money. It would be illogical to sustain his
contention that the envelope represented the balance of his firms legal fees. That it was given
to Hernandez immediately after the return of the passport leads to the inescapable conclusion
that the money was a consideration for the return. Moreover, Acejas should have kept the
amount if he believed it to be his. The Court agrees with the Sandiganbayans pronouncement
on this point:
x x x. If he believed that the brown envelope contained the balance
of the acceptance fee, how come he passed it to Perlas? His
passing the brown envelope to Perlas only proves that the same
did not contain the balance of the acceptance fee; otherwise, he
should have kept and retained it. Moreover, the three prosecution
witnesses testified that the brown envelope was being given to
Hernandez who refused to accept the same. This further shows
that the brown envelope was not for the balance of the acceptance
fee because, if it were, why was it given to Hernandez.
xxxxxxxxx
Acejas defense was further weakened by the fact that his testimony
as to why he left immediately after the brown envelope was given
to him was uncorroborated. He should have presented accused
Victoriano to corroborate his testimony since it was the latter who
allegedly called him and caused him to leave their table. This, he
did not do. The ineluctable conclusion is that he was, indeed, in
cahoots with his co-accused.[47]
Lawyers Duty
Acejas alleges that the Sandiganbayan failed to appreciate his lawyer-client relationship with
the complainants. He was supposedly only acting in their best interest[48] and had the right to
be present when the passport was to be returned.[49]
True, as a lawyer, it was his duty to represent his clients in dealing with other
people.His presence at Diamond Hotel for the scheduled return of the passport was
justified. This fact, however, does not support his innocence
Acejas, however, failed to act for or represent the interests of his clients. He
knew of the payoff, but did nothing to assist or protect their rights, a fact that strongly indicated
that he was to get a share. Thus, he received the money purporting to be the payoff,
even if he was not involved in the entrapment operation. The facts revealed that he was a
conspirator.
The Court reminds lawyers to follow legal ethics[50] when confronted by public officers who
extort money. Lawyers must decline and report the matter to the authorities.[51] If the extortion
is directed at the client, they must advise the client not to perform any illegal act.Moreover,
they must report it to the authorities, without having to violate the attorney-client
privilege.[52] Naturally, they must not participate in the illegal act.[53]
Acejas did not follow these guidelines. Worse, he conspired with the extortionists.
Instigation
Also futile is the contention of petitioners that Pelingon instigated the situation to frame them
into accepting the payoff.[54] Instigation is the employment of ways and means to lure persons
into the commission of an offense in order to prosecute them. [55] As opposed to entrapment,
criminal intent originates in the mind of the instigator.[56]
The discretion on whom to present as prosecution witnesses falls on the People. [67] The
freedom to devise a strategy to convict the accused belongs to the prosecution.[68]Necessarily,
its decision on which evidence, including which witnesses, to present cannot be dictated by
the accused or even by the trial court.[69] If petitioners believed that Takao Aoyagis testimony
was important to their case, they should have presented him as their witness.[70]
Finally, Acejas claims that his Comment/Objection to the prosecutions Formal
Offer of Evidence was not resolved by the Sandiganbayan.[71] In that Comment/Objection, he
had noted the lateness in the filing of the Formal Offer of Evidence.
It may readily be assumed that the Sandiganbayan admitted the prosecutions
Formal Offer of Evidence upon the promulgation of its Decision. In effect, Acejas
Comment/Objection was deemed immaterial. It could not overrule the finding of guilt.Further,
it showed no prayer that the Sandiganbayan needed to act upon. [72]
Finally we reiterate that, as a rule, factual findings of the Sandiganbayan are conclusive upon
this Court.[73] We are convinced that these were clearly based on the evidence adduced in this
case.

There was no instigation in the present case, because the chain of circumstances showed an
extortion attempt. In other words, the criminal intent originated from petitioners, who had
arranged for the payoff.
During the cross-examination of Bethel Grace Aoyagi, pertinent was Associate
Justice Escareal clarifying question as follows:
AJ ESCAREAL:
In sum, we find that the prosecution proved the elements of direct
bribery. First, there is no question that the offense was committed by a public officer. BID
Agent Hernandez extorted money from the Aoyagi spouses for the return of the passport and
the promise of assistance in procuring a visa. Petitioner Acejas was his co-
conspirator. Second, the offenders received the money as payoff, which Acejas received for
the group and then gave to Perlas. Third, the money was given in consideration of the return
of the passport, an act that did not constitute a crime. Fourth, both the confiscation and the
return of the passport were made in the exercise of official duties.

[Q:] Did Mr. Hernandez say anything when he For taking direct part in the execution of the crime, Hernandez and Acejas are liable as
returned the passport to your husband? principals.[74] The evidence shows that the
A: He did not say anything except that he instructed parties conspired to extort money from Spouses Aoyagi. A conspiracy exists even if all the
[the] group to abide with the agreement parties did not commit the same act, if the participants performed specific acts that indicated
that upon handing of the passport, the unity of purpose in accomplishing a criminal design.[75] The act of one is the act of all.
money would also be given immediately
(magkaliwaan).[57] WHEREFORE, the Petitions are DENIED, and the assailed Decision and
Resolutions AFFIRMED. Costs against petitioners.
Alleged Discrepancies
SO ORDERED.
According to Acejas, Pelingons testimonies given in his Complaint-Affidavit, Supplemental-
Affidavit, inquest testimony, testimony in court, and two Affidavits of Desistance were
contradictory.[58] He cites these particular portions of Pelingons Affidavit:

5. That having been enlightened of the case,

and conscious that I might be prosecuting innocent men, I have
decided on my own disposition, not to further testify against any of
the accused in the Sandiganbayan or in any court or tribunal,
regarding the same cause of action.

6. That this affidavit of desistance to further prosecute

is voluntarily executed, and that no reward, promise, consideration,
influence, force or threat was executed to secure this affidavit. [59]

Pelingon testified that he had executed the Affidavit of Desistance because of a

threat to his life.[60] He did not prepare the Affidavit; neither was it explained to him. Allegedly,
his true testimony was in the first Complaint-Affidavit that he had executed.[61]

By appearing and testifying during the trial, he effectively repudiated his Affidavit
of Desistance. An affidavit of desistance must be ignored when pitted against positive
evidence given on the witness stand.[62]

Acejas has failed to identify the other material points that were allegedly
inconsistent.The Court therefore adopts the Sandiganbayans finding that these were minor
details that were not indicative of the lack of credibility of the prosecution witnesses. [63] People
v. Eligino[64] is in point:
x x x. While witnesses may differ in their recollections
of an incident, it does not necessarily follow from their
disagreement that all of them should be disbelieved as liars and
their testimony completely discarded as worthless. As long as the
mass of testimony jibes on material points, the slight clashing
statements neither dilute the witnesses credibility nor the veracity
of their testimony. Thus, inconsistencies and contradictions
referring to minor details do not, in any way, destroy the credibility
of witnesses, for indeed, such inconsistencies are but natural and
even enhance credibility as these discrepancies indicate that the
responses are honest and unrehearsed.[65]

Suppression of Evidence

Acejas further raises the issue of suppression of evidence. Aoyagi, from whom the money was
supposedly demanded, should have been presented by the prosecution as a witness. [66]
[A.C. No. 3319. June 8, 2000]
LESLIE UI, complainant, vs. ATTY. IRIS BONIFACIO, respondent.
DECISION
DE LEON, JR., J.:
Before us is an administrative complaint for disbarment against Atty. Iris Bonifacio
for allegedly carrying on an immoral relationship with Carlos L. Ui, husband of
complainant, Leslie Ui.
The relevant facts are:
On January 24, 1971 complainant Leslie Ui married Carlos L. Ui at the Our Lady
of Lourdes Church in Quezon City[1] and as a result of their marital union, they
had four (4) children, namely, Leilani, Lianni, Lindsay and Carl Cavin, all
surnamed Ui. Sometime in December 1987, however, complainant found out that
her husband, Carlos Ui, was carrying on an illicit relationship with respondent
Atty. Iris Bonifacio with whom he begot a daughter sometime in 1986, and that
they had been living together at No. 527 San Carlos Street, Ayala Alabang Village
in Muntinlupa City. Respondent who is a graduate of the College of Law of the
University of the Philippines was admitted to the Philippine Bar in 1982.
Carlos Ui admitted to complainant his relationship with the respondent.
Complainant then visited respondent at her office in the later part of June 1988
and introduced herself as the legal wife of Carlos Ui. Whereupon, respondent
admitted to her that she has a child with Carlos Ui and alleged, however, that
everything was over between her and Carlos Ui. Complainant believed the
representations of respondent and thought things would turn out well from then
on and that the illicit relationship between her husband and respondent would
come to an end.
However, complainant again discovered that the illicit relationship between her
husband and respondent continued, and that sometime in December 1988,
respondent and her husband, Carlos Ui, had a second child. Complainant then
met again with respondent sometime in March 1989 and pleaded with respondent
to discontinue her illicit relationship with Carlos Ui but to no avail. The illicit
relationship persisted and complainant even came to know later on that
respondent had been employed by her husband in his company.
A complaint for disbarment, docketed as Adm. Case No. 3319, was then filed on
August 11, 1989 by the complainant against respondent Atty. Iris Bonifacio before
the Commission on Bar Discipline of the Integrated Bar of the Philippines
(hereinafter, Commission) on the ground of immorality, more particularly, for
carrying on an illicit relationship with the complainants husband, Carlos Ui. In her
Answer,[2] respondent averred that she met Carlos Ui sometime in 1983 and had
known him all along to be a bachelor, with the knowledge, however, that Carlos
Ui had children by a Chinese woman in Amoy, China, from whom he had long
been estranged. She stated that during one of their trips abroad, Carlos Ui
formalized his intention to marry her and they in fact got married in Hawaii, USA
in 1985[3]. Upon their return to Manila, respondent did not live with Carlos Ui. The
latter continued to live with his children in their Greenhills residence because
respondent and Carlos Ui wanted to let the children gradually to know and accept
the fact of his second marriage before they would live together.[4]
In 1986, respondent left the country and stayed in Honolulu, Hawaii and she
would only return occasionally to the Philippines to update her law practice and
renew legal ties. During one of her trips to Manila sometime in June 1988,
respondent was surprised when she was confronted by a woman who insisted
that she was the lawful wife of Carlos Ui. Hurt and desolate upon her discovery of
the true civil status of Carlos Ui, respondent then left for Honolulu, Hawaii
sometime in July 1988 and returned only in March 1989 with her two (2) children.
On March 20, 1989, a few days after she reported to work with the law firm[5] she
was connected with, the woman who represented herself to be the wife of Carlos
Ui again came to her office, demanding to know if Carlos Ui has been
communicating with her.
It is respondents contention that her relationship with Carlos Ui is not illicit
because they were married abroad and that after June 1988 when respondent
discovered Carlos Uis true civil status, she cut off all her ties with him.
Respondent averred that Carlos Ui never lived with her in Alabang, and that he
resided at 26 Potsdam Street, Greenhills, San Juan, Metro Manila. It was
respondent who lived in Alabang in a house which belonged to her mother,
Rosalinda L. Bonifacio; and that the said house was built exclusively from her
parents funds.[6] By way of counterclaim, respondent sought moral damages in
the amount of Ten Million Pesos (Php10,000,000.00) against complainant for
having filed the present allegedly malicious and groundless disbarment case
against respondent.
In her Reply[7] dated April 6, 1990, complainant states, among others, that
respondent knew perfectly well that Carlos Ui was married to complainant and
had children with her even at the start of her relationship with Carlos Ui, and that
the reason respondent went abroad was to give birth to her two (2) children with
Carlos Ui.
During the pendency of the proceedings before the Integrated Bar, complainant
also charged her husband, Carlos Ui, and respondent with the crime of
Concubinage before the Office of the Provincial Fiscal of Rizal, docketed as I.S.
No. 89-5247, but the same was dismissed for insufficiency of evidence to
establish probable cause for the offense charged. The resolution dismissing the
criminal complaint against respondent reads:
Complainants evidence had prima facie established the existence of
the "illicit relationship" between the respondents allegedly discovered
by the complainant in December 1987. The same evidence however
show that respondent Carlos Ui was still living with complainant up to
the latter part of 1988 and/or the early part of 1989.
It would therefore be logical and safe to state that the "relationship" of
respondents started and was discovered by complainant sometime in
1987 when she and respondent Carlos were still living at No. 26
Potsdam Street, Northeast Greenhills, San Juan, MetroManila and
they, admittedly, continued to live together at their conjugal home up
to early (sic) part of 1989 or later 1988, when respondent Carlos left
the same.
From the above, it would not be amiss to conclude that altho (sic) the
relationship, illicit as complainant puts it, had been prima facie
established by complainants evidence, this same evidence had failed
to even prima facie establish the "fact of respondents cohabitation in
the concept of husband and wife at the 527 San Carlos St., Ayala
Alabang house, proof of which is necessary and indispensable to at
least create probable cause for the offense charged. The statement
alone of complainant, worse, a statement only of a conclusion
respecting the fact of cohabitation does not make the complainants
evidence thereto any better/stronger (U.S. vs. Casipong and Mongoy,
20 Phil. 178).
It is worth stating that the evidence submitted by respondents in
support of their respective positions on the matter support and bolster
the foregoing conclusion/recommendation.
WHEREFORE, it is most respectfully recommended that the instant
complaint be dismissed for want of evidence to establish probable
cause for the offense charged.
RESPECTFULLY SUBMITTED.[8]
Complainant appealed the said Resolution of the Provincial Fiscal of Rizal to the
Secretary of Justice, but the same was dismissed [9] on the ground of insufficiency
of evidence to prove her allegation that respondent and Carlos Ui lived together
as husband and wife at 527 San Carlos Street, Ayala Alabang, Muntinlupa, Metro
Manila.
In the proceedings before the IBP Commission on Bar Discipline, complainant
filed a Motion to Cite Respondent in Contempt of the Commission [10] wherein she
charged respondent with making false allegations in her Answer and for
submitting a supporting document which was altered and intercalated. She
alleged that in the Answer of respondent filed before the Integrated Bar,
respondent averred, among others, that she was married to Carlos Ui on October
22, 1985 and attached a Certificate of Marriage to substantiate her averment.
However, the Certificate of Marriage [11] duly certified by the State Registrar as a
true copy of the record on file in the Hawaii State Department of Health, and duly
authenticated by the Philippine Consulate General in Honolulu, Hawaii, USA
revealed that the date of marriage between Carlos Ui and respondent Atty. Iris
Bonifacio was October 22, 1987, and not October 22, 1985 as claimed by
respondent in her Answer. According to complainant, the reason for that false
allegation was because respondent wanted to impress upon the said IBP that the
birth of her first child by Carlos Ui was within the wedlock.[12] It is the contention of
complainant that such act constitutes a violation of Articles 183[13] and 184[14] of
the Revised Penal Code, and also contempt of the Commission; and that the act
of respondent in making false allegations in her Answer and submitting an
altered/intercalated document are indicative of her moral perversity and lack of
integrity which make her unworthy to be a member of the Philippine Bar.
In her Opposition (To Motion To Cite Respondent in Contempt),[15]
respondent
averred that she did not have the original copy of the marriage certificate because
the same was in the possession of Carlos Ui, and that she annexed such copy
because she relied in good faith on what appeared on the copy of the marriage
certificate in her possession.
Respondent filed her Memorandum [16] on February 22, 1995 and raised the lone
issue of whether or not she has conducted herself in an immoral manner for
which she deserves to be barred from the practice of law. Respondent averred
that the complaint should be dismissed on two (2) grounds, namely:
(i) Respondent conducted herself in a manner consistent with the
requirement of good moral character for the practice of the legal
profession; and
(ii) Complainant failed to prove her allegation that respondent
conducted herself in an immoral manner.[17]
In her defense, respondent contends, among others, that it was she who was the
victim in this case and not Leslie Ui because she did not know that Carlos Ui was
already married, and that upon learning of this fact, respondent immediately cut-
off all her ties with Carlos Ui. She stated that there was no reason for her to doubt
at that time that the civil status of Carlos Ui was that of a bachelor because he
spent so much time with her, and he was so open in his courtship.[18]
On the issue of the falsified marriage certificate, respondent alleged that it was
highly incredible for her to have knowingly attached such marriage certificate to
her Answer had she known that the same was altered. Respondent reiterated that
there was no compelling reason for her to make it appear that her marriage to
Carlos Ui took place either in 1985 or 1987, because the fact remains that
respondent and Carlos Ui got married before complainant confronted respondent
and informed the latter of her earlier marriage to Carlos Ui in June 1988. Further,
respondent stated that it was Carlos Ui who testified and admitted that he was the
person responsible for changing the date of the marriage certificate from 1987 to
1985, and complainant did not present evidence to rebut the testimony of Carlos
Ui on this matter.
Respondent posits that complainants evidence, consisting of the pictures of
respondent with a child, pictures of respondent with Carlos Ui, a picture of a
garage with cars, a picture of a light colored car with Plate No. PNS 313, a picture
of the same car, and portion of the house and ground, and another picture of the
same car bearing Plate No. PNS 313 and a picture of the house and the
garage,[19] does not prove that she acted in an immoral manner. They have no
evidentiary value according to her. The pictures were taken by a photographer
from a private security agency and who was not presented during the hearings.
Further, the respondent presented the Resolution of the Provincial Fiscal of Pasig
in I.S. Case No. 89-5427 dismissing the complaint filed by Leslie Ui against
respondent for lack of evidence to establish probable cause for the offense
charged [20] and the dismissal of the appeal by the Department of Justice [21] to
bolster her argument that she was not guilty of any immoral or illegal act because
of her relationship with Carlos Ui. In fine, respondent claims that she entered the
relationship with Carlos Ui in good faith and that her conduct cannot be
considered as willful, flagrant, or shameless, nor can it suggest moral
indifference. She fell in love with Carlos Ui whom she believed to be single, and,
that upon her discovery of his true civil status, she parted ways with him.
In the Memorandum [22] filed on March 20, 1995 by complainant Leslie Ui, she
prayed for the disbarment of Atty. Iris Bonifacio and reiterated that respondent
committed immorality by having intimate relations with a married man which
resulted in the birth of two (2) children. Complainant testified that respondents
mother, Mrs. Linda Bonifacio, personally knew complainant and her husband
since the late 1970s because they were clients of the bank where Mrs. Bonifacio
was the Branch Manager.[23] It was thus highly improbable that respondent, who
was living with her parents as of 1986, would not have been informed by her own
mother that Carlos Ui was a married man. Complainant likewise averred that
respondent committed disrespect towards the Commission for submitting a
photocopy of a document containing an intercalated date.
In her Reply to Complainants Memorandum [24], respondent stated that
complainant miserably failed to show sufficient proof to warrant her disbarment.
Respondent insists that contrary to the allegations of complainant, there is no
showing that respondent had knowledge of the fact of marriage of Carlos Ui to
complainant. The allegation that her mother knew Carlos Ui to be a married man
does not prove that such information was made known to respondent.
Hearing on the case ensued, after which the Commission on Bar Discipline
submitted its Report and Recommendation, finding that:
In the case at bar, it is alleged that at the time respondent was
courted by Carlos Ui, the latter represented himself to be single. The
Commission does not find said claim too difficult to believe in the light
of contemporary human experience.
Almost always, when a married man courts a single woman, he
represents himself to be single, separated, or without any firm
commitment to another woman. The reason therefor is not hard to
fathom. By their very nature, single women prefer single men.
The records will show that when respondent became aware the (sic)
true civil status of Carlos Ui, she left for the United States (in July of
1988). She broke off all contacts with him. When she returned to the
Philippines in March of 1989, she lived with her brother, Atty. Teodoro
Bonifacio, Jr. Carlos Ui and respondent only talked to each other
because of the children whom he was allowed to visit. At no time did
they live together.
Under the foregoing circumstances, the Commission fails to find any
act on the part of respondent that can be considered as unprincipled
or disgraceful as to be reprehensible to a high degree. To be sure,
she was more of a victim that (sic) anything else and should deserve
compassion rather than condemnation. Without cavil, this sad episode
destroyed her chance of having a normal and happy family life, a
dream cherished by every single girl.
x..........................x..........................x"
Thereafter, the Board of Governors of the Integrated Bar of the Philippines issued
a Notice of Resolution dated December 13, 1997, the dispositive portion of which
reads as follows:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED
and APPROVED, the Report and Recommendation of the
Investigating Commissioner in the above-entitled case, herein made
part of this Resolution/Decision as Annex "A", and, finding the
recommendation fully supported by the evidence on record and the
applicable laws and rules, the complaint for Gross Immorality against
Respondent is DISMISSED for lack of merit. Atty. Iris Bonifacio is
REPRIMANDED for knowingly and willfully attaching to her Answer a
falsified Certificate of Marriage with a stern warning that a repetition of
the same will merit a more severe penalty."
We agree with the findings aforequoted.
The practice of law is a privilege. A bar candidate does not have the right to enjoy
the practice of the legal profession simply by passing the bar examinations. It is a
privilege that can be revoked, subject to the mandate of due process, once a
lawyer violates his oath and the dictates of legal ethics. The requisites for
admission to the practice of law are:
a. he must be a citizen of the Philippines;
b. a resident thereof;
c. at least twenty-one (21) years of age;
d. a person of good moral character;
e. he must show that no charges against him involving moral
turpitude, are filed or pending in court;
f. possess the required educational qualifications; and
g. pass the bar examinations.[25] (Italics supplied)
Clear from the foregoing is that one of the conditions prior to admission to the bar
is that an applicant must possess good moral character. More importantly,
possession of good moral character must be continuous as a requirement to the
enjoyment of the privilege of law practice, otherwise, the loss thereof is a ground
for the revocation of such privilege. It has been held -
If good moral character is a sine qua non for admission to the bar,
then the continued possession of good moral character is also a
requisite for retaining membership in the legal profession.
Membership in the bar may be terminated when a lawyer ceases to
have good moral character. (Royong vs. Oblena, 117 Phil. 865).
A lawyer may be disbarred for "grossly immoral conduct, or by reason
of his conviction of a crime involving moral turpitude". A member of
the bar should have moral integrity in addition to professional probity.
It is difficult to state with precision and to fix an inflexible standard as
to what is "grossly immoral conduct" or to specify the moral
delinquency and obliquity which render a lawyer unworthy of
continuing as a member of the bar. The rule implies that what appears
to be unconventional behavior to the straight-laced may not be the
immoral conduct that warrants disbarment.
Immoral conduct has been defined as "that conduct which is willful,
flagrant, or shameless, and which shows a moral indifference to the
opinion of the good and respectable members of the community." (7
C.J.S. 959).[26]
In the case at bar, it is the claim of respondent Atty. Bonifacio that when she met
Carlos Ui, she knew and believed him to be single. Respondent fell in love with
him and they got married and as a result of such marriage, she gave birth to two
(2) children. Upon her knowledge of the true civil status of Carlos Ui, she left him.
Simple as the facts of the case may sound, the effects of the actuations of
respondent are not only far from simple, they will have a rippling effect on how the
standard norms of our legal practitioners should be defined. Perhaps morality in
our liberal society today is a far cry from what it used to be before. This
permissiveness notwithstanding, lawyers, as keepers of public faith, are burdened
with a higher degree of social responsibility and thus must handle their personal
affairs with greater caution. The facts of this case lead us to believe that perhaps
respondent would not have found herself in such a compromising situation had
she exercised prudence and been more vigilant in finding out more about Carlos
Uis personal background prior to her intimate involvement with him.
Surely, circumstances existed which should have at least aroused respondents
suspicion that something was amiss in her relationship with Carlos Ui, and moved
her to ask probing questions. For instance, respondent admitted that she knew
that Carlos Ui had children with a woman from Amoy, China, yet it appeared that
she never exerted the slightest effort to find out if Carlos Ui and this woman were
indeed unmarried. Also, despite their marriage in 1987, Carlos Ui never lived with
respondent and their first child, a circumstance that is simply incomprehensible
considering respondents allegation that Carlos Ui was very open in courting her.
All these taken together leads to the inescapable conclusion that respondent was
imprudent in managing her personal affairs. However, the fact remains that her
relationship with Carlos Ui, clothed as it was with what respondent believed was a
valid marriage, cannot be considered immoral. For immorality connotes conduct
that shows indifference to the moral norms of society and the opinion of good and
respectable members of the community.[27] Moreover, for such conduct to warrant
disciplinary action, the same must be "grossly immoral," that is, it must be so
corrupt and false as to constitute a criminal act or so unprincipled as to be
reprehensible to a high degree.[28]
We have held that "a member of the Bar and officer of the court is not only
required to refrain from adulterous relationships x x x but must also so behave
himself as to avoid scandalizing the public by creating the belief that he is flouting
those moral standards."[29] Respondents act of immediately distancing herself
from Carlos Ui upon discovering his true civil status belies just that alleged moral
indifference and proves that she had no intention of flaunting the law and the high
moral standard of the legal profession. Complainants bare assertions to the
contrary deserve no credit. After all, the burden of proof rests upon the
complainant, and the Court will exercise its disciplinary powers only if she
establishes her case by clear, convincing and satisfactory evidence.[30] This,
herein complainant miserably failed to do.
On the matter of the falsified Certificate of Marriage attached by respondent to
her Answer, we find improbable to believe the averment of respondent that she
merely relied on the photocopy of the Marriage Certificate which was provided her
by Carlos Ui. For an event as significant as a marriage ceremony, any normal
bride would verily recall the date and year of her marriage. It is difficult to fathom
how a bride, especially a lawyer as in the case at bar, can forget the year when
she got married. Simply stated, it is contrary to human experience and highly
improbable.
Furthermore, any prudent lawyer would verify the information contained in an
attachment to her pleading, especially so when she has personal knowledge of
the facts and circumstances contained therein. In attaching such Marriage
Certificate with an intercalated date, the defense of good faith of respondent on
that point cannot stand.
It is the bounden duty of lawyers to adhere unwaveringly to the highest standards
of morality. The legal profession exacts from its members nothing less. Lawyers
are called upon to safeguard the integrity of the Bar, free from misdeeds and acts
constitutive of malpractice. Their exalted positions as officers of the court demand
no less than the highest degree of morality.
WHEREFORE, the complaint for disbarment against respondent Atty. Iris L.
Bonifacio, for alleged immorality, is hereby DISMISSED.
However, respondent is hereby REPRIMANDED for attaching to her Answer a
photocopy of her Marriage Certificate, with an altered or intercalated date thereof,
with a STERN WARNING that a more severe sanction will be imposed on her for
any repetition of the same or similar offense in the future.
SO ORDERED.
Bellosillo, (Chairman and Acting C.J.), Mendoza, Quisumbing, and Buena,
JJ., concur.
 FIRST DIVISION
PEDRO L. LINSANGAN, Complainant, vs ATTY. NICOMEDES
TOLENTINO,
Respondent.
RESOLUTION
CORONA, J.:
This is a complaint for disbarment[1] filed by Pedro Linsangan of the
Linsangan Linsangan & Linsangan Law Office against Atty.
Nicomedes Tolentino for solicitation of clients and encroachment of
professional services.
Complainant alleged that respondent, with the help of paralegal Fe
Marie Labiano, convinced his clients[2] to transfer legal
representation. Respondent promised them financial
assistance[3] and expeditious collection on their claims.[4] To induce
them to hire his services, he persistently called them and sent them
text messages.
Based on testimonial and documentary evidence, the CBD, in its
report and recommendation,[9] found that respondent had
encroached on the professional practice of complainant, violating
Rule 8.02[10] and other canons[11] of the Code of Professional
Responsibility (CPR). Moreover, he contravened the rule against
soliciting cases for gain, personally or through paid agents or
brokers as stated in Section 27, Rule 138[12] of the Rules of Court.
Hence, the CBD recommended that respondent be reprimanded
with a stern warning that any repetition would merit a heavier
penalty.
We adopt the findings of the IBP on the unethical conduct of
respondent but we modify the recommended penalty.
The complaint before us is rooted on the alleged intrusion by
respondent into complainants professional practice in violation of
Rule 8.02 of the CPR. And the means employed by respondent in
furtherance of the said misconduct themselves constituted distinct
violations of ethical rules.

To support his allegations, complainant presented the sworn
affidavit[5] of James Gregorio attesting that Labiano tried to prevail
upon him to sever his lawyer-client relations with complainant and
utilize respondents services instead, in exchange for a loan
of P50,000. Complainant also attached respondents calling card:[6]
Front
NICOMEDES TOLENTINO
LAW OFFFICE
CONSULTANCY & MARITIME SERVICES
W/ FINANCIAL ASSISTANCE
Fe Marie L. Labiano
Paralegal
1st MIJI Mansion, 2nd Flr. Rm. M-01 Tel: 362-7820
6th Ave., cor M.H. Del Pilar Fax: (632) 362-7821
Grace Park, Caloocan City Cel.: (0926) 2701719
Canons of the CPR are rules of conduct all lawyers must adhere
to, including the manner by which a lawyers services are to be
made known. Thus, Canon 3 of the CPR provides:
CANON 3 - A LAWYER IN MAKING KNOWN
HIS LEGAL SERVICES SHALL USE ONLY
TRUE, HONEST, FAIR, DIGNIFIED AND
OBJECTIVE INFORMATION OR STATEMENT
OF FACTS.
Time and time again, lawyers are reminded that the practice of law
is a profession and not a business; lawyers should not advertise
their talents as merchants advertise their wares.[13] To allow a
lawyer to advertise his talent or skill is to commercialize the practice
of law, degrade the profession in the publics estimation and impair
its ability to efficiently render that high character of service to which
every member of the bar is called.[14]
Rule 2.03 of the CPR provides:

RULE 2.03. A LAWYER SHALL NOT DO OR

Back PERMIT TO BE DONE ANY ACT DESIGNED
SERVICES OFFERED: PRIMARILY TO SOLICIT LEGAL BUSINESS.
CONSULTATION AND ASSISTANCE
TO OVERSEAS SEAMEN Hence, lawyers are prohibited from soliciting cases for the purpose
REPATRIATED DUE TO ACCIDENT, of gain, either personally or through paid agents or brokers.[15] Such
INJURY, ILLNESS, SICKNESS, DEATH actuation constitutes malpractice, a ground for disbarment.[16]
AND INSURANCE BENEFIT CLAIMS
ABROAD. Rule 2.03 should be read in connection with Rule 1.03 of
(emphasis supplied) the CPR which provides:
Hence, this complaint.
RULE 1.03. A LAWYER SHALL NOT, FOR
Respondent, in his defense, denied knowing Labiano and ANY CORRUPT MOTIVE OR INTEREST,
authorizing the printing and circulation of the said calling card.[7] ENCOURAGE ANY SUIT OR PROCEEDING
OR DELAY ANY MANS CAUSE.
The complaint was referred to the Commission on Bar Discipline
(CBD) of the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation.[8] This rule proscribes ambulance chasing (the solicitation of almost
any kind of legal business by an attorney, personally or through an
agent in order to gain employment)[17] as a measure to protect the
community from barratry and champerty.[18]
Complainant presented substantial evidence[19] (consisting of the
sworn statements of the very same persons coaxed by Labiano and
referred to respondents office) to prove that respondent indeed
solicited legal business as well as profited from referrals suits.
Although respondent initially denied knowing Labiano in
his answer, he later admitted it during the mandatory hearing.
Through Labianos actions, respondents law practice was
benefited. Hapless seamen were enticed to transfer representation
on the strength of Labianos word that respondent could produce a
more favorable result.
Based on the foregoing, respondent clearly solicited employment
violating Rule 2.03, and Rule 1.03 and Canon 3 of the CPR and
Section 27, Rule 138 of the Rules of Court.
With regard to respondents violation of Rule 8.02 of the CPR,
settled is the rule that a lawyer should not steal another lawyers
client nor induce the latter to retain him by a promise of better
service, good result or reduced fees for his services.[20] Again the
Court notes that respondent never denied having these seafarers
in his client list nor receiving benefits from Labianos referrals.
Furthermore, he never denied Labianos connection to his
office.[21] Respondent committed an unethical, predatory overstep
into anothers legal practice. He cannot escape liability under Rule
8.02 of the CPR.
Moreover, by engaging in a money-lending venture with his clients
as borrowers, respondent violated Rule 16.04:
Rule 16.04 A lawyer shall not borrow money from his
client unless the clients interests are fully
protected by the nature of the case or by
independent advice. Neither shall a lawyer lend
money to a client except, when in the interest of
justice, he has to advance necessary expenses
in a legal matter he is handling for the client.
The rule is that a lawyer shall not lend money to his
client. The only exception is, when in the interest of justice, he has
to advance necessary expenses (such as filing fees, stenographers
fees for transcript of stenographic notes, cash bond or premium for
surety bond, etc.) for a matter that he is handling for the client.
The rule is intended to safeguard the lawyers
independence of mind so that the free exercise of his judgment may
not be adversely affected.[22] It seeks to ensure his undivided
attention to the case he is handling as well as his entire devotion
and fidelity to the clients cause. If the lawyer lends money to the
client in connection with the clients case, the lawyer in effect
acquires an interest in the subject matter of the case or an
additional stake in its outcome.[23] Either of these circumstances
may lead the lawyer to consider his own recovery rather than that
of his client, or to accept a settlement which may take care of his
interest in the verdict to the prejudice of the client in violation of his
duty of undivided fidelity to the clients cause.[24]
As previously mentioned, any act of solicitation constitutes
malpractice[25] which calls for the exercise of the Courts disciplinary
powers. Violation of anti-solicitation statutes warrants serious
sanctions for initiating contact with a prospective client for the
purpose of obtaining employment.[26] Thus, in this jurisdiction, we
adhere to the rule to protect the public from the Machiavellian
machinations of unscrupulous lawyers and to uphold the nobility of
the legal profession.
Considering the myriad infractions of respondent
(including violation of the prohibition on lending money to clients),
the sanction recommended by the IBP, a mere reprimand, is a
wimpy slap on the wrist. The proposed penalty is grossly
incommensurate to its findings.
A final word regarding the calling card presented in evidence by
petitioner. A lawyers best advertisement is a well-merited
reputation for professional capacity and fidelity to trust based on his
character and conduct.[27] For this reason, lawyers are only allowed
to announce their services by publication in reputable law lists or
use of simple professional cards.
Professional calling cards may only contain the following details:
(a) lawyers name;
(b) name of the law firm with which he is connected;
(c) address;
(d) telephone number and
(e) special branch of law practiced.[28]
Labianos calling card contained the phrase with
financial assistance. The phrase was clearly used to entice clients
(who already had representation) to change counsels with a
promise of loans to finance their legal actions. Money was dangled
to lure clients away from their original lawyers, thereby taking
advantage of their financial distress and emotional vulnerability.
This crass commercialism degraded the integrity of the bar and
deserved no place in the legal profession. However, in the absence
of substantial evidence to prove his culpability, the Court is not
prepared to rule that respondent was personally and directly
responsible for the printing and distribution of Labianos calling
cards.
WHEREFORE, respondent Atty. Nicomedes Tolentino for violating
Rules 1.03, 2.03, 8.02 and 16.04 and Canon 3 of the Code of
Professional Responsibility and Section 27, Rule 138 of the Rules
of Court is hereby SUSPENDED from the practice of law for a
period of one year effective immediately from receipt of this
resolution. He is STERNLY WARNED that a repetition of the same
or similar acts in the future shall be dealt with more severely.
Let a copy of this Resolution be made part of his records in the
Office of the Bar Confidant, Supreme Court of the Philippines, and
be furnished to the Integrated Bar of the Philippines and the Office
of the Court Administrator to be circulated to all courts.
SO ORDERED.
ROBERTO SORIANO, Complainant, - versus Atty. MANUEL DIZON,
DECISION
PER CURIAM:
Before us is a Complaint-Affidavit[1] for the disbarment of Atty. Manuel
Dizon, filed by Roberto Soriano with the Commission on Bar Discipine (CBD) of the
Integrated Bar of the Philippines (IBP). Complainant alleges that the conviction of
respondent for a crime involving moral turpitude, together with the circumstances
surrounding the conviction, violates Canon 1 of Rule 1.01 of the Code of Professional
Responsibility;[2] and constitutes sufficient ground for his disbarment under Section 27
of Rule 138 of the Rules of Court.[3]
Because of the failure of Atty. Dizon to submit his Answer to the Complaint,
the CBD issued a Notice dated May 20, 2004, informing him that he was in default, and
that an ex-parte hearing had been scheduled for June 11, 2004.[4]
After that hearing, complainant manifested that he was submitting the case on the basis
of the Complaint and its attachments.[5] Accordingly, the CBD directed him to file his
Position Paper, which he did on July 27, 2004.[6] Afterwards, the case was deemed
submitted for resolution.
On December 6, 2004, Commissioner Teresita J. Herbosa rendered her Report and
Recommendation, which was later adopted and approved by the IBP Board of Governors in its
Resolution No. XVI-2005-84 dated March 12, 2005.
In his Complaint-Affidavit, Soriano alleged that respondent had violated Canon 1, Rule
1.01 of the Code of Professional Responsibility; and that the conviction of the latter for
frustrated homicide,[7] which involved moral turpitude, should result in his disbarment.
The facts leading to respondents conviction were summarized by Branch
60 of the Regional Trial Court of Baguio City in this wise:
x x x. The accused was driving his brown Toyota
Corolla and was on his way home after gassing up in
preparation for his trip to Concepcion, Tarlac with his wife.
Along Abanao Street, a taxi driver overtook the car driven by
the accused not knowing that the driver of the car he had
overtaken is not just someone, but a lawyer and a prominent
member of the Baguio community who was under the influence
of liquor. Incensed, the accused tailed the taxi driver until the
latter stopped to make a turn at [the] Chugum and Carino
Streets. The accused also stopped his car, berated the taxi
driver and held him by his shirt. To stop the aggression, the taxi
driver forced open his door causing the accused to fall to the
ground. The taxi driver knew that the accused had been
drinking because he smelled of liquor. Taking pity on the
accused who looked elderly, the taxi driver got out of his car to
help him get up. But the accused, by now enraged, stood up
immediately and was about to deal the taxi driver a fist blow
when the latter boxed him on the chest instead. The accused
fell down a second time, got up again and was about to box the
taxi driver but the latter caught his fist and turned his arm
around. The taxi driver held on to the accused until he could be
pacified and then released him. The accused went back to his
car and got his revolver making sure that the handle was
wrapped in a handkerchief. The taxi driver was on his way back
to his vehicle when he noticed the eyeglasses of the accused
on the ground. He picked them up intending to return them to
the accused. But as he was handing the same to the accused,
he was met by the barrel of the gun held by the accused who
fired and shot him hitting him on the neck. He fell on the thigh
of the accused so the latter pushed him out and sped off. The
incident was witnessed by Antonio Billanes whose testimony
corroborated that of the taxi driver, the complainant in this
case, Roberto Soriano.[8]
It was the prosecution witness, Antonio Billanes, who came to the aid of
Soriano and brought the latter to the hospital. Because the bullet had lacerated the
carotid artery on the left side of his neck,[9] complainant would have surely died of
hemorrhage if he had not received timely medical assistance, according to the attending
surgeon, Dr. Francisco Hernandez, Jr. Soriano sustained a spinal cord injury, which
caused paralysis on the left part of his body and disabled him for his job as a taxi driver.
The trial court promulgated its Decision dated November 29, 2001. On
January 18, 2002, respondent filed an application for probation, which was granted by
the court on several conditions. These included satisfaction of the civil liabilities imposed
by [the] court in favor of the offended party, Roberto Soriano.[10]
According to the unrefuted statements of complainant, Atty. Dizon, who has
yet to comply with this particular undertaking, even appealed the civil liability to the Court
of Appeals.[11]
In her Report and Recommendation, Commissioner Herbosa recommended that
respondent be disbarred from the practice of law for having been convicted of a crime
involving moral turpitude.
The commissioner found that respondent had not only been convicted of
such crime, but that the latter also exhibited an obvious lack of good moral character,
based on the following facts:
1. He was under the influence of liquor while driving his car;
2. He reacted violently and attempted to assault Complainant
only because the latter, driving a taxi, had
overtaken him;
3. Complainant having been able to ward off his attempted
assault, Respondent went back to his car, got a
gun, wrapped the same with a handkerchief and
shot Complainant[,] who was unarmed;
4. When Complainant fell on him, Respondent simply pushed
him out and fled;
5. Despite positive identification and overwhelming evidence,
Respondent denied that he had shot Complainant;
6. Apart from [his] denial, Respondent also lied when he
claimed that he was the one mauled by
Complainant and two unidentified persons; and,
7. Although he has been placed on probation, Respondent
has[,] to date[,] not yet satisfied his civil liabilities
to Complainant.[12]
On July 8, 2005, the Supreme Court received for its final action the IBP
Resolution adopting the Report and Recommendation of the Investigating
Commissioner.
We agree with the findings and recommendations of Commissioner
Herbosa, as approved and adopted by the IBP Board of Governors.
Under Section 27 of Rule 138 of the Rules of Court, conviction for a crime
involving moral turpitude is a ground for disbarment or suspension. By such conviction,
a lawyer is deemed to have become unfit to uphold the administration of justice and to
be no longer possessed of good moral character.[13] In the instant case, respondent has
been found guilty; and he stands convicted, by final judgment, of frustrated homicide.
Since his conviction has already been established and is no longer open to question,
the only issues that remain to be determined are as follows: 1) whether his crime of
frustrated homicide involves moral turpitude, and 2) whether his guilt warrants
disbarment.
Moral turpitude has been defined as everything which is done contrary to justice,
modesty, or good morals; an act of baseness, vileness or depravity in the private and
social duties which a man owes his fellowmen, or to society in general, contrary to
justice, honesty, modesty, or good morals.[14]
The question of whether the crime of homicide involves moral turpitude has
been discussed in International Rice Research Institute (IRRI) v. NLRC,[15] a labor case
concerning an employee who was dismissed on the basis of his conviction for homicide.
Considering the particular circumstances surrounding the commission of the crime, this
Court rejected the employers contention and held that homicide in that case did not
involve moral turpitude. (If it did, the crime would have been violative of the IRRIs
Employment Policy Regulations and indeed a ground for dismissal.) The Court explained that, having
disregardedtheattendantcircumstances,theemployermadeapronouncementthatwasprecipitate.Furthermore,
it was not for the latter to determine conclusively whether a crime involved moral turpitude. That discretion belonged
to the courts, as explained thus:
x x x. Homicide may or may not involve moral
turpitude depending on the degree of the crime. Moral turpitude
is not involved in every criminal act and is not shown by every
known and intentional violation of statute, but whether any
particular conviction involves moral turpitude may be a
question of fact and frequently depends on all the surrounding
circumstances. x x x.[16] (Emphasis supplied)
In the IRRI case, in which the crime of homicide did not involve moral
turpitude, the Court appreciated the presence of incomplete self-defense and total
absence of aggravating circumstances. For a better understanding of that Decision, the
circumstances of the crime are quoted as follows:
 x x x. The facts on record show that Micosa [the IRRI
employee] was then urinating and had his back turned when
the victim drove his fist unto Micosa's face; that the victim then
forcibly rubbed Micosa's face into the filthy urinal; that Micosa
pleaded to the victim to stop the attack but was ignored and
that it was while Micosa was in that position that he drew a fan
knife from the left pocket of his shirt and desperately swung it
at the victim who released his hold on Micosa only after the
latter had stabbed him several times. These facts show that
Micosa's intention was not to slay the victim but only to defend
his person. The appreciation in his favor of the mitigating
circumstances of self-defense and voluntary surrender, plus
the total absence of any aggravating circumstance
demonstrate that Micosa's character and intentions were not
inherently vile, immoral or unjust.[17]
The present case is totally different. As the IBP correctly found, the circumstances
clearly evince the moral turpitude of respondent and his unworthiness to practice law.
Atty. Dizon was definitely the aggressor, as he pursued and shot
complainant when the latter least expected it. The act of aggression shown by
respondent will not be mitigated by the fact that he was hit once and his arm twisted by
complainant. Under the circumstances, those were reasonable actions clearly intended
to fend off the lawyers assault.
We also consider the trial courts finding of treachery as a further indication of the skewed
morals of respondent. He shot the victim when the latter was not in a position to defend
himself. In fact, under the impression that the assault was already over, the unarmed
complainant was merely returning the eyeglasses of Atty. Dizon when the latter
unexpectedly shot him. To make matters worse, respondent wrapped the handle of his
gun with a handkerchief so as not to leave fingerprints. In so doing, he betrayed his sly
intention to escape punishment for his crime.
The totality of the facts unmistakably bears the earmarks of moral turpitude.
By his conduct, respondent revealed his extreme arrogance and feeling of self-
importance. As it were, he acted like a god on the road, who deserved to be venerated
and never to be slighted. Clearly, his inordinate reaction to a simple traffic incident
reflected poorly on his fitness to be a member of the legal profession. His overreaction
also evinced vindictiveness, which was definitely an undesirable trait in any individual,
more so in a lawyer. In the tenacity with which he pursued complainant, we see not the
persistence of a person who has been grievously wronged, but the obstinacy of one trying
to assert a false sense of superiority and to exact revenge.
It is also glaringly clear that respondent seriously transgressed Canon 1 of
the Code of Professional Responsibility through his illegal possession of an unlicensed
firearm[18] and his unjust refusal to satisfy his civil liabilities.[19]
He has thus brazenly violated the law and disobeyed the lawful orders of the courts. We remind
him that, both in his attorneys oath[20] and in the Code of Professional Responsibility, he bound
himself to obey the laws of the land.
All told, Atty. Dizon has shown through this incident that he is wanting in
even a basic sense of justice. He obtained the benevolence of the trial court when it
suspended his sentence and granted him probation. And yet, it has been four
years[21] since he was ordered to settle his civil liabilities to complainant. To date,
respondent remains adamant in refusing to fulfill that obligation. By his extreme
impetuosity and intolerance, as shown by his violent reaction to a simple traffic
altercation, he has taken away the earning capacity, good health, and youthful vigor of
his victim. Still, Atty. Dizon begrudges complainant the measly amount that could never
even fully restore what the latter has lost.
Conviction for a crime involving moral turpitude may relate, not to the
exercise of the profession of lawyers, but certainly to their good moral
character.[22] Where their misconduct outside of their professional dealings is so gross
as to show them morally unfit for their office and unworthy of the privileges conferred
upon them by their license and the law, the court may be justified in suspending or
removing them from that office.[23]
We also adopt the IBPs finding that respondent displayed an utter lack of
good moral character, which is an essential qualification for the privilege to enter into
the practice of law. Good moral character includes at least common honesty.[24]
In the case at bar, respondent consistently displayed dishonest and
duplicitous behavior. As found by the trial court, he had sought, with the aid of Vice-
Mayor Daniel Farias, an out-of-court settlement with complainants family.[25] But when
this effort failed, respondent concocted a complete lie by making it appear that it was
complainants family that had sought a conference with him to obtain his referral to a
neurosurgeon.[26]
The lies of Atty Dizon did not end there. He went on to fabricate an entirely
implausible story of having been mauled by complainant and two other persons.[27] The
trial court had this to say:
The physical evidence as testified to by no less
than three (3) doctors who examined [Atty. Dizon] does not
support his allegation that three people including the
complainant helped each other in kicking and boxing him. The
injuries he sustained were so minor that it is improbable[,] if not
downright unbelievable[,] that three people who he said were
bent on beating him to death could do so little damage. On the
contrary, his injuries sustain the complainants version of the
incident particularly when he said that he boxed the accused
on the chest. x x x.[28]
Lawyers must be ministers of truth. No moral qualification for bar
membership is more important than truthfulness.[29] The rigorous ethics of the profession
places a premium on honesty and condemns duplicitous behavior.[30] Hence, lawyers
must not mislead the court or allow it to be misled by any artifice. In all their dealings,
they are expected to act in good faith.
The actions of respondent erode rather than enhance public perception of
the legal profession. They constitute moral turpitude for which he should be disbarred.
Law is a noble profession, and the privilege to practice it is bestowed only upon
individuals who are competent intellectually,
academically and, equally important, morally. Because they are vanguards of the law
and the legal system, lawyers must at all times conduct themselves, especially in their
dealings with their clients and the public at large, with honesty and integrity in a manner
beyond reproach.[31]
The foregoing abhorrent acts of respondent are not merely dishonorable;
they reveal a basic moral flaw. Considering the depravity of the offense he committed,
we find the penalty recommended by the IBP proper and commensurate.
The purpose of a proceeding for disbarment is to protect the administration
of justice by requiring that those who exercise this important function be competent,
honorable and reliable -- lawyers in whom courts and clients may repose
confidence.[32] Thus, whenever a clear case of degenerate and vile behavior disturbs
that vital yet fragile confidence, we shall not hesitate to rid our profession of odious
members.
We remain aware that the power to disbar must be exercised with great
caution, and that disbarment should never be decreed when any lesser penalty would
accomplish the end desired. In the instant case, however, the Court cannot extend that
munificence to respondent. His actions so despicably and wantonly disregarded his
duties to society and his profession. We are convinced that meting out a lesser penalty
would be irreconcilable with our lofty aspiration for the legal profession -- that every
lawyer be a shining exemplar of truth and justice.
We stress that membership in the legal profession is a privilege demanding
a high degree of good moral character, not only as a condition precedent to admission,
but also as a continuing requirement for the practice of law. Sadly, herein respondent
has fallen short of the exacting standards expected of him as a vanguard of the legal
profession.
In sum, when lawyers are convicted of frustrated homicide, the attending circumstances not the
mere fact of their conviction would demonstrate their fitness to remain in the legal profession. In
the present case, the appalling vindictiveness, treachery, and brazen dishonesty of respondent
clearly show his unworthiness to continue as a member of the bar.
WHEREFORE, RESPONDENT MANUEL DIZON is
hereby DISBARRED, and his name is ORDERED STRICKEN from the Roll of
Attorneys. Let a copy of this Decision be entered in his record as a member of the Bar;
and let notice of the same be served on the Integrated Bar of the Philippines, and on the
Office of the Court Administrator for circulation to all courts in the country.
SO ORDERED.
KELD STEMMERIK, represented by ATTYS.
HERMINIO A. LIWANAG and
WINSTON P.L. ESGUERRA, Complainant,
- v e r s u s - ATTY. LEONUEL N. MAS, Respondent.
RESOLUTION
Per Curiam:
Complainant Keld Stemmerik is a citizen and resident of Denmark. In one of
his trips to the Philippines, he was introduced to respondent Atty. Leonuel N.
Mas. That was his misfortune.
In one visit to the Philippines, complainant marveled at the beauty
of the country and expressed his interest in acquiring real property in the
Philippines. He consulted respondent who advised him that he could legally
acquire and own real property in the Philippines. Respondent even suggested
an 86,998 sq.m. property in Quarry, Agusuin, Cawag, Subic, Zambales with
the assurance that the property was alienable.
Trusting respondent, complainant agreed to purchase the property
through respondent as his representative or attorney-in-fact. Complainant also
engaged the services of respondent for the preparation of the necessary
documents. For this purpose, respondent demanded and received a P400,000
fee.
Confident that respondent would faithfully carry out his task, complainant
returned to Denmark, entrusting the processing of the necessary paperwork to
respondent.
Thereafter, respondent prepared a contract to sell the property between
complainant, represented by respondent, and a certain Bonifacio de Mesa, the
purported owner of the property.[1] Subsequently, respondent prepared and
notarized a deed of sale in which de Mesa sold and conveyed the property to
a certain Ailyn Gonzales for P3.8 million.[2] Respondent also drafted and
notarized an agreement between complainant and Gonzales stating that it was
complainant who provided the funds for the purchase of the
property.[3] Complainant then gave respondent the full amount of the purchase
price (P3.8 million) for which respondent issued an acknowledgment receipt.[4]
After the various contracts and agreements were executed, complainant tried
to get in touch with respondent to inquire about when the property could be
registered in his name. However, respondent suddenly became scarce and
refused to answer complainants calls and e-mail messages.
When complainant visited the Philippines again in January 2005, he engaged
the services of the Jimenez Gonzales Liwanag Bello Valdez Caluya &
Fernandez Law Office to ascertain the status of the property he supposedly
bought. He was devastated to learn that aliens could not own land under
Philippine laws. Moreover, verification at the Community Environment &
Natural Resources Office (CENRO) of the Department of Environment and
Natural Resources in Olongapo City revealed that the property was inalienable
as it was situated within the former US Military Reservation.[5] The CENRO
also stated that the property was not subject to disposition or acquisition under
Republic Act No. 141.[6]
Thereafter, complainant, through his attorneys-in-fact,[7] exerted diligent
efforts to locate respondent for purposes of holding him accountable for his
fraudulent acts. Inquiry with the Olongapo Chapter of the Integrated Bar of the
Philippines (IBP) disclosed that respondent was in arrears in his annual dues
and that he had already abandoned his law office in Olongapo City.[8] Search
of court records of cases handled by respondent only yielded his abandoned
office address in Olongapo City.
Complainant filed a complaint for disbarment against respondent in
the Commission on Bar Discipline (CBD) of the IBP.[9] He deplored
respondents acts of serious misconduct. In particular, he sought the expulsion
of respondent from the legal profession for gravely misrepresenting that a
foreigner could legally acquire land in the Philippines and for maliciously
absconding with complainants P3.8 million.[10]
Respondent failed to file his answer and position paper despite service of
notice at his last known address. Neither did he appear in the scheduled
mandatory conference. In this connection, the CBD found that respondent
abandoned his law practice in Olongapo City after his transaction with
complainant and that he did not see it fit to contest the charges against him.[11]
The CBD ruled that respondent used his position as a lawyer to mislead
complainant on the matter of land ownership by a foreigner.[12] He even went
through the motion of preparing falsified and fictitious contracts, deeds and
agreements. And for all these shameless acts, he collected P400,000 from
complainant. Worse, he pocketed the P3.8 million and absconded with it.[13]
The CBD found respondent to be nothing more than an embezzler
who misused his professional status as an attorney as a tool for deceiving
complainant and absconding with complainants money.[14] Respondent was
dishonest and deceitful. He abused the trust and confidence reposed by
complainant in him. The CBD recommended the disbarment of respondent.[15]
The Board of Governors of the IBP adopted the findings and recommendation
of the CBD with the modification that respondent was further required to return
the amount of P4.2 million to respondent.[16]
We agree with the IBP.
SUFFICIENCY OF NOTICE OF
THE DISBARMENT PROCEEDINGS
We shall first address a threshold issue: was respondent properly given notice
of the disbarment proceedings against him? Yes.
The respondent did not file any answer or position paper, nor did
he appear during the scheduled mandatory conference. Respondent in fact
abandoned his last known address, his law office in Olongapo City, after he
committed the embezzlement.
Respondent should not be allowed to benefit from his disappearing
act. He can neither defeat this Courts jurisdiction over him as a member of the
bar nor evade administrative liability by the mere ruse of concealing his
whereabouts. Thus, service of the complaint and other orders and processes
on respondents office was sufficient notice to him.
Indeed, since he himself rendered the service of notice on him
impossible, the notice requirement cannot apply to him and he is thus
considered to have waived it. The law does not require that the impossible be
done. Nemo tenetur ad impossibile.[17] The law obliges no one to perform an
impossibility. Laws and rules must be interpreted in a way that they are in
accordance with logic, common sense, reason and practicality.[18]
In this connection, lawyers must update their records with the IBP by informing
the IBP National Office or their respective chapters[19] of any change in office
or residential address and other contact details.[20] In case such change is not
duly updated, service of notice on the office or residential address appearing
in the records of the IBP National Office shall constitute sufficient notice to a
lawyer for purposes of administrative proceedings against him.
RESPONDENTS ADMINISTRATIVE INFRACTIONS
AND HIS LIABILITY THEREFOR
Lawyers, as members of a noble profession, have the duty to
promote respect for the law and uphold the integrity of the bar. As men and
women entrusted with the law, they must ensure that the law functions to
protect liberty and not as an instrument of oppression or deception.
Respondent has been weighed by the exacting standards of the
legal profession and has been found wanting.
Respondent committed a serious breach of his oath as a lawyer. He is also
guilty of culpable violation of the Code of Professional Responsibility, the code
of ethics of the legal profession.
All lawyers take an oath to support the Constitution, to obey the laws and to
do no falsehood.[21] That oath is neither mere formal ceremony nor hollow
words. It is a sacred trust that should be upheld and kept inviolable at all
times.[22]
Lawyers are servants of the law[23] and the law is their master. They
should not simply obey the laws, they should also inspire respect for and
obedience thereto by serving as exemplars worthy of emulation. Indeed, that
is the first precept of the Code of Professional Responsibility:
CANON 1 A LAWYER SHALL UPHOLD THE
CONSTITUTION, OBEY THE LAWS OF THE LAND
AND PROMOTE RESPECT FOR LAW AND LEGAL
PROCESSES.
Section 7, Article XII of the Constitution provides:
SEC. 7. Save in cases of hereditary succession, no
private lands shall be transferred or conveyed except
to individuals, corporations, or associations qualified to
acquire or hold lands of the public domain.
This Court has interpreted this provision, as early as the 1947
case Krivenko v. Register of Deeds,[24] to mean that under the Constitution,
aliens may not acquire private or agricultural lands, including residential lands.
The provision is a declaration of imperative constitutional policy.[25]
Respondent, in giving advice that directly contradicted a
fundamental constitutional policy, showed disrespect for the Constitution and
gross ignorance of basic law. Worse, he prepared spurious documents that he
knew were void and illegal.
By making it appear that de Mesa undertook to sell the property to
complainant and that de Mesa thereafter sold the property to Gonzales who
made the purchase for and in behalf of complainant, he falsified public
documents and knowingly violated the Anti-Dummy Law.[26]
Respondents misconduct did not end there. By advising
complainant that a foreigner could legally and validly acquire real estate in the
Philippines and by assuring complainant that the property was alienable,
respondent deliberately foisted a falsehood on his client. He did not give due
regard to the trust and confidence reposed in him by complainant. Instead, he
deceived complainant and misled him into parting with P400,000 for services
that were both illegal and unprofessional. Moreover, by pocketing and
misappropriating the P3.8 million given by complainant for the purchase of the
property, respondent committed a fraudulent act that was criminal in nature.
Respondent spun an intricate web of lies. In the process, he
committed unethical act after unethical act, wantonly violating laws and
professional standards.
For all this, respondent violated not only the lawyers oath and
Canon 1 of the Code of Professional Responsibility. He also transgressed the
following provisions of the Code of Professional Responsibility:
Rule 1.01. A lawyer shall not engage in unlawful,
dishonest, immoral or deceitful conduct.
Rule 1.02. A lawyer shall not counsel or abet
activities aimed at defiance of the law or at
lessening confidence in the legal system.
CANON 7 A LAWYER SHALL AT ALL TIMES
UPHOLD THE INTEGRITY AND DIGNITY OF THE
LEGAL PROFESSION AND SUPPORT THE
ACTIVITIES OF THE INTEGRATED BAR.
CANON 15 A LAWYER SHALL OBSERVE
CANDOR, FAIRNESS AND LOYALTY IN ALL HIS
DEALINGS AND TRANSACTIONS WITH HIS
CLIENT.
CANON 16 A LAWYER SHALL HOLD IN TRUST ALL
MONEYS AND PROPERTIES OF HIS CLIENT THAT
MAY COME INTO HIS POSSESSION.
CANON 17 A LAWYER OWES FIDELITY TO THE
CAUSE OF HIS CLIENT AND HE SHALL BE
MINDFUL OF THE TRUST AND CONFIDENCE
REPOSED IN HIM. (emphasis supplied)
A lawyer who resorts to nefarious schemes to circumvent the law
and uses his legal knowledge to further his selfish ends to the great prejudice
of others, poses a clear and present danger to the rule of law and to the legal
system. He does not only tarnish the image of the bar and degrade the integrity
and dignity of the legal profession, he also betrays everything that the legal
profession stands for.
It is respondent and his kind that give lawyering a bad name and
make laymen support Dick the Butchers call, Kill all lawyers![27] A disgrace to
their professional brethren, they must be purged from the bar.
WHEREFORE, respondent Atty. Leonuel N. Mas is
hereby DISBARRED. The Clerk of Court is directed to immediately strike out
the name of respondent from the Roll of Attorneys.
Respondent is hereby ORDERED to return to complainant Keld
Stemmerik the total amount of P4.2 million with interest at 12% per annum
from the date of promulgation of this resolution until full payment. Respondent
is further DIRECTED to submit to the Court proof of payment of the amount
within ten days from payment.
The National Bureau of Investigation (NBI) is ORDERED to locate
Atty. Mas and file the appropriate criminal charges against him. The NBI is
further DIRECTED to regularly report the progress of its action in this case to
this Court through the Bar Confidant.
Let copies of this resolution be furnished the Bar Confidant who
shall forthwith record it in the personal file of respondent, the Court
Administrator who shall inform all courts of the Philippines, the Integrated Bar
of the Philippines which shall disseminate copies to all its chapters and
members and all administrative and quasi-judicial agencies of the Republic of
the Philippines.
SO ORDERED.
G.R. No. 104599 March 11, 1994
JON DE YSASI III, petitioner, vs.
NATIONAL LABOR RELATIONS COMMISSION (FOURTH DIVISION), CEBU CITY,
and JON DE YSASI, respondents.
F.B. Santiago, Nalus & Associates for petitioner.
Ismael A. Serfino for private respondent.
REGALADO, J.:
The adage that blood is thicker than water obviously stood for naught in this case,
notwithstanding the vinculum of paternity and filiation between the parties. It would
indeed have been the better part of reason if herein petitioner and private respondent
had reconciled their differences in an extrajudicial atmosphere of familial amity and
with the grace of reciprocal concessions. Father and son opted instead for judicial
intervention despite the inevitable acrimony and negative publicity. Albeit with distaste,
the Court cannot proceed elsewise but to resolve their dispute with the same reasoned
detachment accorded any judicial proceeding before it.
The records of this case reveal that petitioner was employed by his father, herein
private respondent, as farm administrator of Hacienda Manucao in Hinigaran, Negros
Occidental sometime in April, 1980. Prior thereto, he was successively employed as
sales manager of Triumph International (Phil.), Inc. and later as operations manager of
Top Form Manufacturing (Phil.), Inc. His employment as farm administrator was on a
fixed salary, with other allowances covering housing, food, light, power, telephone,
gasoline, medical and dental expenses.
As farm administrator, petitioner was responsible for the supervision of daily activities
and operations of the sugarcane farm such as land preparation, planting, weeding,
fertilizing, harvesting, dealing with third persons in all matters relating to
the hacienda and attending to such other tasks as may be assigned to him by private
respondent. For this purpose, he lived on the farm, occupying the upper floor of the
house there.
Following his marriage on June 6, 1982, petitioner moved to Bacolod City with his wife
and commuted to work daily. He suffered various ailments and was hospitalized on
two separate occasions in June and August, 1982. In November, 1982, he underwent
fistulectomy, or the surgical removal of the fistula, a deep sinuous ulcer. During his
recuperation which lasted over four months, he was under the care of Dr. Patricio Tan.
In June, 1983, he was confined for acute gastroenteritis and, thereafter, for infectious
hepatitis from December, 1983 to January, 1984.
During the entire periods of petitioner's illnesses, private respondent took care of his
medical expenses and petitioner continued to receive compensation. However, in
April, 1984, without due notice, private respondent ceased to pay the latter's salary.
Petitioner made oral and written demands for an explanation for the sudden
withholding of his salary from Atty. Apolonio Sumbingco, private respondent's auditor
and legal adviser, as well as for the remittance of his salary. Both demands, however,
were not acted upon.
Petitioner then filed an action with the National Labor Relations Commission (NLRC,
for brevity), Regional Arbitration Branch No. VI, Bacolod City, on October 17, 1984,
docketed therein as RAB Case No. 0452-84, against private respondent for illegal
dismissal with prayer for reinstatement without loss of seniority rights and payment of
full back wages, thirteenth month pay for 1983, consequential, moral and exemplary
damages, as well as attorney's fees.
On July 31, 1991, said complaint for illegal dismissal was dismissed by the
NLRC,1 holding that petitioner abandoned his work and that the termination of his
employment was for a valid cause, but ordering private respondent to pay petitioner
the amount of P5,000.00 as penalty for his failure to serve notice of said termination of
employment to the Department of Labor and Employment as required by Batas
Pambansa Blg. 130 and consonant with this Court's ruling in Wenphil Corporation
vs. National Labor Relations Commission, et al.2 On appeal to the Fourth Division of
the NLRC, Cebu City, said decision was affirmed in toto.3
His motion for reconsideration4 of said decision having been denied for lack of
merit,5 petitioner filed this petition presenting the following issues for resolution: (1)
whether or not the petitioner was illegally dismissed; (2) whether or not he is entitled to
reinstatement, payment of back wages, thirteenth month pay and other benefits; and
(3) whether or not he is entitled to payment of moral and exemplary damages and
attorney's fees because of illegal dismissal. The discussion of these issues will
necessarily subsume the corollary questions presented by private respondent, such as
the exact date when petitioner ceased to function as farm administrator, the character
of the pecuniary amounts received by petitioner from private respondent, that is,
whether the same are in the nature of salaries or pensions, and whether or not there
was abandonment by petitioner of his functions as farm administrator.
In his manifestation dated September 14, 1992, the Solicitor General recommended a
modification of the decision of herein public respondent sustaining the findings and
conclusions of the Executive Labor Arbiter in RAB Case No. 0452-84,6 for which
reason the NLRC was required to submit its own comment on the petition. In
compliance with the Court's resolution of November 16, 1992,7 NLRC filed its comment
on February 12, 1992 largely reiterating its earlier position in support of the findings of
the Executive Labor Arbiter.8
Before proceeding with a discussion of the issues, the observation of the labor arbiter
is worth noting:
This case is truly unique. What makes this case unique is the fact that
because of the special relationship of the parties and the nature of the
action involved, this case could very well go down (in) the annals of the
Commission as perhaps the first of its kind. For this case is an action filed
by an only son, his father's namesake, the only child and therefore the
only heir against his own father.9
Additionally, the Solicitor General remarked:
. . . After an exhaustive reading of the records, two (2) observations were
noted that may justify why this labor case deserves special considerations.
First, most of the complaints that petitioner and private respondent had
with each other, were personal matters affecting father and son
relationship. And secondly, if any of the complaints pertain to their work,
they allow their personal relationship to come in the way.10
I. Petitioner maintains that his dismissal from employment was illegal because of want
of just cause therefor and non-observance of the requirements of due process. He also
charges the NLRC with grave abuse of discretion in relying upon the findings of the
executive labor arbiter who decided the case but did not conduct the hearings thereof.
Private respondent, in refutation, avers that there was abandonment by petitioner of
his functions as farm administrator, thereby arming private respondent with a ground to
terminate his employment at Hacienda Manucao. It is also contended that it is wrong
for petitioner to question the factual findings of the executive labor arbiter and the
NLRC as only questions of law may be appealed for resolution by this Court.
Furthermore, in seeking the dismissal of the instant petition, private respondent faults
herein petitioner for failure to refer to the corresponding pages of the transcripts of
stenographic notes, erroneously citing Sections 15(d) and 16(d), Rule 44 (should be
Section 16[c] and [d],
Rule 46 and Section 1[g], Rule 50) of the Rules of Court, which provide that want of
page references to the records is a ground for dismissal of an appeal.
Prefatorily, we take advertence of the provisions of Article 221 of the Labor Code that
technical rules of evidence prevailing in courts of law and equity shall not be
controlling, and that every and all reasonable means to speedily and objectively
ascertain the facts in each case shall be availed of, without regard to technicalities of
law or procedure in the interest of due process.
It is settled that it is not procedurally objectionable for the decision in a case to be
rendered by a judge, or a labor arbiter for that matter, other than the one who
conducted the hearing. The fact that the judge who heard the case was not the judge
who penned the decision does not impair the validity of the judgment,11 provided that
he draws up his decision and resolution with due care and makes certain that they
truly and accurately reflect conclusions and final dispositions on the bases of the facts
of and evidence submitted in the case.12
Thus, the mere fact that the case was initially assigned to Labor Arbiter Ricardo T.
Octavio, who conducted the hearings therein from December 5, 1984 to July 11, 1985,
and was later transferred to Executive Labor Arbiter Oscar S. Uy, who eventually
decided the case, presents no procedural infirmity, especially considering that there is
a presumption of regularity in the performance of a public officer's functions,13 which
petitioner has not successfully rebutted.
We are constrained to heed the underlying policy in the Labor Code relaxing the The elements of abandonment as a ground for dismissal of an employee
application of technical rules of procedure in labor cases in the interest of due process, are as follows:
ever mindful of the long-standing legal precept that rules of procedure must be
interpreted to help secure, not defeat, justice. For this reason, we cannot indulge
(1) failure to report for work or absence without valid or
private respondent in his tendency to nitpick on trivial technicalities to boost his
justifiable reason; and (2) clear intention to sever the
arguments. The strength of one's position cannot be hinged on mere procedural
employer-employee tie (Samson Alcantara, Reviewer in
niceties but on solid bases in law and jurisprudence.
Labor and Social Legislation, 1989 edition, p. 133).

The fundamental guarantees of security of tenure and due process dictate that no
This Honorable Court, in several cases, illustrates what constitute
worker shall be dismissed except for just and authorized cause provided by law and
abandonment. In Dagupan Bus Company v. NLRC (191 SCRA 328), the
after due process.14 Article 282 of the Labor Code enumerates the causes for which an
Court rules that for abandonment to arise, there must be a concurrence of
employer may validly terminate an employment, to wit:
the intention to abandon and some overt act from which it may be inferred
(a) serious misconduct or willful disobedience by the employee of the lawful orders of
that the employee has no more interest to work. Similarly, in Nueva Ecija I
his employer or representative in connection with his work; (b) gross and habitual
Electric Cooperative, Inc. v. NLRC (184 SCRA 25), for abandonment to
neglect by the employee of his duties; (c) fraud or willful breach by the employee of the
constitute a valid cause for termination of employment, there must be a
trust reposed in him by his employer or duly authorized representative; (d) commission
deliberate, unjustified refusal of the employee to resume his employment. .
of a crime or offense by the employee against the person of his employer or any
. Mere absence is not sufficient; it must be accompanied by overt acts
immediate member of his family or his duly authorized representative; and (e) other
unerringly pointing to the fact that the employee simply does not want to
causes analogous to the foregoing.
work anymore.

The employer may also terminate the services of any employee due to the installation
There are significant indications in this case, that there is no
of labor saving devices, redundancy, retrenchment to prevent losses or the closing or
abandonment. First, petitioner's absence and his decision to leave his
cessation of operation of the establishment or undertaking, unless the closing is for the
residence inside Hacienda Manucao, is justified by his illness and strained
purpose of circumventing the pertinent provisions of the Labor Code, by serving a
family relations. Second he has some medical certificates to show his frail
written notice on the workers and the Department of Labor and Employment at least
health. Third, once able to work, petitioner wrote a letter (Annex "J")
one (1) month before the intended date thereof, with due entitlement to the
informing private respondent of his intention to assume again his
corresponding separation pay rates provided by law.15Suffering from a disease by
employment. Last, but not the least, he at once instituted a complaint for
reason whereof the continued employment of the employee is prohibited by law or is
illegal dismissal when he realized he was unjustly dismissed. All these are
prejudicial to his and his co-employee's health, is also a ground for termination of his
indications that petitioner had no intention to abandon his employment.20
services provided he receives the prescribed separation pay.16 On the other hand, it is
well-settled that abandonment by an employee of his work authorizes the employer to
effect the former's dismissal from employment.17 The records show that the parties herein do not dispute the fact of petitioner's
confinement in the hospital for his various afflictions which required medical treatment.
Neither can it be denied that private respondent was well aware of petitioner's state of
After a careful review of the records of this case, we find that public respondent
health as the former admittedly shouldered part of the medical and hospital bills and
gravely erred in affirming the decision of the executive labor arbiter holding that
even advised the latter to stay in Bacolod City until he was fit to work again. The
petitioner abandoned his employment and was not illegally dismissed from such
disagreement as to whether or not petitioner's ailments were so serious as to
employment. For want of substantial bases, in fact or
necessitate hospitalization and corresponding periods for recuperation is beside the
in law, we cannot give the stamp of finality and conclusiveness normally accorded to
point. The fact remains that on account of said illnesses, the details of which were
the factual findings of an administrative agency, such as herein public respondent
amply substantiated by the attending physician,21 and as the records are bereft of any
NLRC,18 as even decisions of administrative agencies which are declared "final" by law
suggestion of malingering on the part of petitioner, there was justifiable cause for
are not exempt from judicial review when so warranted. 19
petitioner's absence from work. We repeat, it is clear, deliberate and unjustified refusal
to resume employment and not mere absence that is required to constitute
The following perceptive disquisitions of the Solicitor General on this point deserve abandonment as a valid ground for termination of employment.22
acceptance:
With his position as farm administrator of Hacienda Manucao, petitioner unmistakably
It is submitted that the absences of petitioner in his work from October may be classified as a managerial employee23 to whom the law grants an amount of
1982 to December 1982, cannot be construed as abandonment of work discretion in the discharge of his duties. This is why when petitioner stated that "I
because he has a justifiable excuse. Petitioner was suffering from assigned myself where I want to go,"24 he was simply being candid about what he
perennial abscess in the peri-anal around the anus and fistula under the could do within the sphere of his authority. His duties as farm administrator did not
medical attention of Dr. Patricio Tan of Riverside Medical Center, Inc., strictly require him to keep regular hours or to be at the office premises at all times, or
Bacolod City (Tsn, Vol. III, Dr. Tan, February 19, 1986 at 20-44). to be subjected to specific control from his employer in every aspect of his work. What
is essential only is that he runs the farm as efficiently and effectively as possible and,
while petitioner may definitely not qualify as a model employee, in this regard he
This fact (was) duly communicated to private respondent by medical bills
proved to be quite successful, as there was at least a showing of increased production
sent to Hacienda Manucao (Tsn, Vol. III, Dr. Tan, January 22, 1987 at 49-
during the time that petitioner was in charge of farm operations.
50).

During the period of his illness and recovery, petitioner stayed in Bacolod
City upon the instruction(s) of private respondent to recuperate thereat
and to handle only administrative matters of the hacienda in that city. As a
manager, petitioner is not really obliged to live and stay 24 hours a day
inside Hacienda Manucao.
xxx xxx xxx
After evaluating the evidence within the context of the special
circumstances involved and basic human experience, petitioner's illness
and strained family relation with respondent Jon de Ysasi II may be
considered as justifiable reason for petitioner Jon de Ysasi III's absence
from work during the period of October 1982 to December 1982. In any
event, such absence does not warrant outright dismissal without notice
and hearing.
If, as private respondent contends, he had no control over petitioner during the years
1983 to 1984, this is because that was the period when petitioner was recuperating
from illness and on account of which his attendance and direct involvement in farm
operations were irregular and minimal, hence the supervision and control exercisable
by private respondent as employer was necessarily limited. It goes without saying that
the control contemplated refers only to matters relating to his functions as farm
administrator and could not extend to petitioner's personal affairs and activities.
While it was taken for granted that for purposes of discharging his duties as farm
administrator, petitioner would be staying at the house in the farm, there really was no
explicit contractual stipulation (as there was no formal employment contract to begin
with) requiring him to stay therein for the duration of his employment or that any
transfer of residence would justify the termination of his employment. That petitioner
changed his residence should not be taken against him, as this is undeniably among
his basic rights, nor can such fact of transfer of residence per se be a valid ground to
terminate an employer-employee relationship.

xxx xxx xxx

Private respondent, in his pleadings, asserted that as he was yet uncertain of his son's
intention of returning to work after his confinement in the hospital, he kept petitioner on
the payroll, reported him as an employee of the haciendafor social security purposes,
and paid his salaries and benefits with the mandated deductions therefrom until the
end of December, 1982. It was only in January, 1983 when he became convinced that
petitioner would no longer return to work that he considered the latter to have
abandoned his work and, for this reason, no longer listed him as an employee.
According to private respondent, whatever amount of money was given to petitioner
from that time until
April, 1984 was in the nature of a pension or an allowance or mere gratuitous doles
from a father to a son, and not salaries as, in fact, none of the usual deductions were
made therefrom. It was only in April, 1984 that private respondent completely stopped
giving said pension or allowance when he was angered by what he heard petitioner
had been saying about sending him to jail.
Private respondent capitalizes on the testimony of one Manolo Gomez taken on oral
deposition regarding petitioner's alleged statement to him, "(h)e quemado los
(p)ue(n)tes de Manucao" ("I have burned my bridges with Manucao") as expressive of
petitioner's intention to abandon his job. In addition to insinuations of sinister motives
on the part of petitioner in working at the farm and thereafter abandoning the job upon
accomplishment of his objectives, private respondent takes the novel position that the
agreement to support his son after the latter abandoned the administration of the farm
legally converts the initial abandonment to implied voluntary resignation.25
As earlier mentioned, petitioner ripostes that private respondent undoubtedly knew
about petitioner's illness and even paid for his hospital and other medical bills. The
assertion regarding abandonment of work, petitioner argues, is further belied by his
continued performance of various services related to the operations of the farm from
May to the last quarter of 1983, his persistent inquiries from his father's accountant
and legal adviser about the reason why his pension or allowance was discontinued
since April, 1984, and his indication of having recovered and his willingness and
capability to resume his work at the farm as expressed in a letter dated September 14,
1984.26 With these, petitioner contends that it is immaterial how the monthly pecuniary
amounts are designated, whether as salary, pension or allowance, with or without
deductions, as he was entitled thereto in view of his continued service as farm
administrator.27
To stress what was earlier mentioned, in order that a finding of abandonment may
justly be made there must be a concurrence of two elements, viz.: (1) the failure to
report for work or absence without valid or justifiable reason, and (2) a clear intention
to sever the employer-employee relationship, with the second element as the more
determinative factor and being manifested by some overt acts. Such intent we find
dismally wanting in this case.
It will be recalled that private respondent himself admitted being unsure of his son's
plans of returning to work. The absence of petitioner from work since mid-1982,
prolonged though it may have been, was not without valid causes of which private
respondent had full knowledge. As to what convinced or led him to believe that
petitioner was no longer returning to work, private respondent neither explains nor
substantiates by any reasonable basis how he arrived at such a conclusion.
Moreover, private respondent's claim of abandonment cannot be given credence as
even after January, 1983, when private respondent supposedly "became convinced"
that petitioner would no longer work at the farm, the latter continued to perform
services directly required by his position as farm administrator. These are duly and
correspondingly evidenced by such acts as picking up some farm
machinery/equipment from G.A. Machineries, Inc.,28 claiming and paying for additional
farm equipment and machinery shipped by said firm from Manila to Bacolod through
Zip Forwarders,29 getting the payment of the additional cash advances for molasses for
crop year 1983-1984 from Agrotex Commodities, Inc.,30 and remitting to private
respondent through
Atty. Sumbingco the sums collected along with receipts for medicine and oil.31
It will be observed that all of these chores, which petitioner took care of, relate to the
normal activities and operations of the farm. True, it is a father's prerogative to request
or even command his child to run errands for him. In the present case, however,
considering the nature of these transactions, as well as the property values and
monetary sums involved, it is unlikely that private respondent would leave the matter to
just anyone. Prudence dictates that these matters be handled by someone who can be
trusted or at least be held accountable therefor, and who is familiar with the terms,
specifications and other details relative thereto, such as an employee. If indeed
petitioner had abandoned his job or was considered to have done so by private
respondent, it would be awkward, or even out of place, to expect or to oblige petitioner
to concern himself with matters relating to or expected of him with respect to what
would then be his past and terminated employment. It is hard to imagine what further
authority an employer can have over a dismissed employee so as to compel him to
continue to perform work-related tasks:
It is also significant that the special power of attorney32 executed
by private respondent on June 26, 1980 in favor of petitioner, specifically stating —
xxx xxx xxx
That I, JON de YSASI, Filipino, of legal age, married, and a resident of
Hda. Manucao, hereinafter called and referred to as PRINCIPAL, am a
sugarcane planter, BISCOM Mill District, and a duly accredited planter-
member of the BINALBAGAN-ISABELA PLANTERS' ASSOCIATION,
INC.;
That as such planter-member of BIPA, I have check/checks with BIPA
representing payment for all checks and papers to which I am entitled to
(sic) as such planter-member;
That I have named, appointed and constituted as by these presents
I HEREBY NAME, APPOINT AND CONSTITUTE as my true and lawful
ATTORNEY-IN-FACT
JON de YSASI III
whose specimen signature is hereunder affixed, TO GET FOR ME and in
my name, place and stead, my check/checks aforementioned, said
ATTORNEY-IN-FACT being herein given the power and authority to sign
for me and in my name, place and stead, the receipt or receipts or payroll
for the said check/checks. PROVIDED, HOWEVER, that my said
ATTORNEY-IN-FACT cannot cash the said check/checks, but to turn the
same over to me for my proper disposition.
That I HEREBY RATIFY AND CONFIRM the acts of my
Attorney-in-Fact in getting the said check/checks and signing the receipts
therefor.
That I further request that my said check/checks be made a "CROSSED
CHECK".
xxx xxx xxx
remained in force even after petitioner's employment was supposed to have been
terminated by reason of abandonment. Furthermore, petitioner's numerous requests
for an explanation regarding the stoppage of his salaries and benefits,33 the issuance
of withholding tax reports,34 as well as correspondence reporting his full recovery and
readiness to go back to work,35 and, specifically, his filing of the complaint for illegal
dismissal are hardly the acts of one who has abandoned his work.
We are likewise not impressed by the deposition of Manolo Gomez, as witness for
private respondent, ascribing statements to petitioner supposedly indicative of the
latter's intention to abandon his work. We perceive the irregularity in the taking of such
deposition without the presence of petitioner's counsel, and the failure of private
respondent to serve reasonably advance notice of its taking to said counsel, thereby
foreclosing his opportunity to
cross-examine the deponent. Private respondent also failed to serve notice thereof on
the Regional Arbitration Branch No. VI of the NLRC, as certified to by Administrative
Assistant Celestina G. Ovejera of said office.36 Fair play dictates that at such an
important stage of the proceedings, which involves the taking of testimony, both
parties must be afforded equal opportunity to examine and cross-examine a witness.
As to the monthly monetary amounts given to petitioner, whether denominated as
salary, pension, allowance or ex gratia handout, there is no question as to petitioner's
entitlement thereto inasmuch as he continued to perform services in his capacity as
farm administrator. The change in description of said amounts contained in the pay
slips or in the receipts prepared by private respondent cannot be deemed to be
determinative of petitioner's employment status in view of the peculiar circumstances
above set out. Besides, if such amounts were truly in the nature of allowances given
by a parent out of concern for his child's welfare, it is rather unusual that receipts
therefor37 should be necessary and required as if they were ordinary business
expenditures.
Neither can we subscribe to private respondent's theory that petitioner's alleged
abandonment was converted into an implied voluntary resignation on account of the
father's agreement to support his son after the latter abandoned his work. As we have
determined that no abandonment took place in this case, the monthly sums received
by petitioner, regardless of designation, were in consideration for services rendered
emanating from an employer-employee relationship and were not of a character that
can qualify them as mere civil support given out of parental duty and solicitude. We are
also hard put to imagine how abandonment can be impliedly converted into a voluntary
resignation without any positive act on the part of the employee conveying a desire to
terminate his employment. The very concept of resignation as a ground for termination
by the employee of his employment38 does not square with the elements constitutive of
abandonment.
On procedural considerations, petitioner posits that there was a violation by private
respondent of the due process requirements under the Labor Code for want of notice
and hearing.39 Private respondent, in opposition, argues that Section 2, Rule XIV, Book
V of the Omnibus Rules Implementing the Labor Code applies only to cases where the
employer seeks to terminate the services of an employee on any of the grounds
enumerated under Article 282 of the Labor Code, but not to the situation obtaining in
this case where private respondent did not dismiss petitioner on any ground since it
was petitioner who allegedly abandoned his employment.40
The due process requirements of notice and hearing applicable to labor cases are set
out in Rule XIV, Book V of the Omnibus Rules Implementing the Labor Code in this
wise:
Sec. 2. Notice of Dismissal. — Any employer who seeks to dismiss a
worker shall furnish him a written notice stating the particular acts or
omission(s) constituting the grounds for his dismissal. In cases of
abandonment of work, notice shall be served at the worker's last known
address.
xxx xxx xxx
Sec. 5. Answer and hearing. — The worker may answer the allegations as
stated against him in the notice of dismissal within a reasonable period
from receipt of such notice. The employer shall afford the worker ample
opportunity to be heard and to defend himself with the assistance of his
representative, if he so desires.
Sec. 6. Decision to dismiss. — The employer shall immediately notify a
worker in writing of a decision to dismiss him stating clearly the reasons
therefor.
Sec. 7. Right to contest dismissal. — Any decision taken by the employer
shall be without prejudice to the right of the worker to contest the validity
or legality of his dismissal by filing a complaint with the Regional Branch of
the Commission.
xxx xxx xxx
Sec. 11. Report of dismissal. — The employer shall submit a monthly
report to the Regional Office having jurisdiction over the place of work at
all dismissals effected by him during the month, specifying therein the
names of the dismissed workers, the reasons for their dismissal, the dates
of commencement and termination of employment, the positions last held
by them and such other information as may be required by the Ministry for
policy guidance and statistical purposes.
Private respondent's argument is without merit as there can be no question that
petitioner was denied his right to due process since he was never given any notice
about his impending dismissal and the grounds therefor, much less a chance to be
heard. Even as private respondent controverts the applicability of the mandatory twin
requirements of procedural due process in this particular case, he in effect admits that
no notice was served by him on petitioner. This fact is corroborated by the certification
issued on September 5, 1984 by the Regional Director for Region VI of the
Department of Labor that no notice of termination of the employment of petitioner was
submitted thereto.41
Granting arguendo that there was abandonment in this case, it nonetheless cannot be
denied that notice still had to be served upon the employee sought to be dismissed, as
the second sentence of Section 2 of the pertinent implementing rules explicitly requires
service thereof at the employee's last known address, by way of substantial
compliance. While it is conceded that it is the employer's prerogative to terminate an
employee, especially when there is just cause therefor, the requirements of due
process cannot be lightly taken. The law does not countenance the arbitrary exercise
of such a power or prerogative when it has the effect of undermining the fundamental
guarantee of security of tenure in favor of the employee.42
On the executive labor arbiter's misplaced reliance on the Wenphil case, the Solicitor
General rejoins as follows:
The Labor Arbiter held thus:
While we are in full agreement with the respondent as to his
defense of implied resignation and/or abandonment, records
somehow showed that he failed to notify the Department of
Labor and Employment for his sons' (sic)/complainants' (sic)
aba(n)donment as required by BP 130. And for this failure,
the other requisite for a valid termination by an employer was
not complied with. This however, would not work to invalidate
the otherwise (sic) existence of a valid cause for dismissal.
The validity of the cause of dismissal must be upheld at all
times provided however that sanctions must be imposed on
the respondent for his failure to observe the notice on due
process requirement. (Wenphil Corp. v. NLRC, G.R. No.
80587). (Decision Labor Arbiter, at 11-12, Annex "C" Petition),
...
This is thus a very different case from Wenphil Corporation v. NLRC, 170
SCRA 69. In Wenphil, the rule applied to the facts is: once an employee is
dismissed for just cause, he must not be rewarded
re-employment and backwages for failure of his employer to observe
procedural due process. The public policy behind this is that, it may
encourage the employee to do even worse and render a mockery of the
rules of discipline required to be observed. However, the employer must
be penalized for his infraction of due process. In the present case,
however, not only was petitioner dismissed without due process, but his
dismissal is without just cause. Petitioner did not abandon his employment
because he has a justifiable excuse.43
II. Petitioner avers that the executive labor arbiter erred in disregarding the mandatory
provisions of Article 279 of the Labor Code which entitles an illegally dismissed
employee to reinstatement and back wages and, instead, affirmed the imposition of the
penalty of P5,000.00 on private respondent for violation of the due process
requirements. Private respondent, for his part, maintains that there was error in
imposing the fine because that penalty contemplates the failure to submit the
employer's report on dismissed employees to the DOLE regional office, as required
under Section 5 (now, Section 11), Rule XIV of the implementing rules, and not the
failure to serve notice upon the employee sought to be dismissed by the employer.
Both the Constitution and the Labor Code enunciate in no uncertain terms the right of
every worker to security of tenure.44 To give teeth to this constitutional and statutory
mandates, the Labor Code spells out the relief available to an employee in case of its
denial:
Art. 279. Security of Tenure. — In cases of regular employment, the
employer shall not terminate the services of an employee except for a just
cause or when authorized by this Title. An employee who is unjustly
dismissed from work shall be entitled to reinstatement without loss of
seniority rights and other privileges and to his full backwages, inclusive of
allowances, and to his other benefits of their monetary equivalent
computed from the time his compensation was withheld from him up to the
time of actual reinstatement.
Clearly, therefore, an employee is entitled to reinstatement with full back wages in the
absence of just cause for dismissal.45 The Court, however, on numerous occasions
has tempered the rigid application of said provision of the Labor Code, recognizing that
in some cases certain events may have transpired as would militate against the
practicability of granting the relief thereunder provided, and declares that where there
are strained relations between the employer and the employee, payment of back
wages and severance pay may be awarded instead of reinstatement,46 and more
particularly when managerial employees are concerned.47 Thus, where reinstatement
is no longer possible, it is therefore appropriate that the dismissed employee be given
his fair and just share of what the law accords him.48
We note with favor and give our imprimatur to the Solicitor General's ratiocination, to The conduct of the respective counsel of the parties, as revealed by the records,
wit: sorely disappoints the Court and invites reproof. Both counsel may well be reminded
that their ethical duty as lawyers to represent their clients with
zeal55 goes beyond merely presenting their clients' respective causes in court. It is just
As a general rule, an employee who is unjustly dismissed from work shall
as much their responsibility, if not more importantly, to exert all reasonable efforts to
be entitled to reinstatement without loss of seniority rights and to his
smooth over legal conflicts, preferably out of court and especially in consideration of
backwages computed from the time his compensation was withheld up to
the direct and immediate consanguineous ties between their clients. Once again, we
the time of his reinstatement. (Morales vs. NLRC, 188 SCRA 295). But
reiterate that the useful function of a lawyer is not only to conduct litigation but to avoid
in Pacific Cement Company, Inc. vs. NLRC, 173 SCRA 192, this
it whenever possible by advising settlement or withholding suit. He is often called upon
Honorable Court held that when it comes to reinstatement, differences
less for dramatic forensic exploits than for wise counsel in every phase of life. He
should be made between managers and the ordinary workingmen. The
should be a mediator for concord and a conciliator for compromise, rather than a
Court concluded that a company which no longer trusts its managers
virtuoso of technicality in the conduct of litigation.56
cannot operate freely in a competitive and profitable manner. The NLRC
should know the difference between managers and ordinary workingmen.
It cannot imprudently order the reinstatement of managers with the same Rule 1.04 of the Code of Professional Responsibility explicitly provides that "(a) lawyer
ease and liberality as that of rank and file workers who had been shall encourage his client to avoid, end or settle the controversy if it will admit of a fair
terminated. Similarly, a reinstatement may not be appropriate or feasible settlement." On this point, we find that both counsel herein fell short of what was
in case of antipathy or antagonism between the parties (Morales, vs. expected of them, despite their avowed duties as officers of the court. The records do
NLRC, 188 SCRA 295). not show that they took pains to initiate steps geared toward effecting a
rapprochement between their clients. On the contrary, their acerbic and protracted
exchanges could not but have exacerbated the situation even as they may have found
In the present case, it is submitted that petitioner should not be reinstated
favor in the equally hostile eyes of their respective clients.
as farm administrator of Hacienda Manucao. The present relationship of
petitioner and private respondent (is) so strained that a harmonious and
peaceful employee-employer relationship is hardly possible.49 In the same manner, we find that the labor arbiter who handled this regrettable case
has been less than faithful to the letter and spirit of the Labor Code mandating that a
labor arbiter "shall exert all efforts towards the amicable settlement of a labor dispute
III. Finally, petitioner insists on an award of moral damages, arguing that his dismissal
within his jurisdiction."57 If he ever did so, or at least entertained the thought, the
from employment was attended by bad faith or fraud, or constituted oppression, or was
copious records of the proceedings in this controversy are barren of any reflection of
contrary to morals, good customs or public policy. He further prays for exemplary
the same.
damages to serve as a deterrent against similar acts of unjust dismissal by other
employers.
One final word. This is one decision we do not particularly relish having been obliged
to make. The task of resolving cases involving disputes among members of a family
Moral damages, under Article 2217 of the Civil Code, may be awarded to compensate
leaves a bad taste in the mouth and an aversion in the mind, for no truly meaningful
one for diverse injuries such as mental anguish, besmirched reputation, wounded
and enduring resolution is really achieved in such situations. While we are convinced
feelings, and social humiliation, provided that such injuries spring from a wrongful act
that we have adjudicated the legal issues herein squarely on the bases of law and
or omission of the defendant which was the proximate cause thereof.50 Exemplary
jurisprudence, sans sentimentality, we are saddened by the thought that we may have
damages, under Article 2229, are imposed by way of example or correction for the
failed to bring about the reconciliation of the father and son who figured as parties to
public good, in addition to moral, temperate, liquidated or compensatory damages.
this dispute, and that our adherence here to law and duty may unwittingly contribute to
They are not recoverable as a matter of right, it being left to the court to decide
the breaking, instead of the strengthening, of familial bonds. In fine, neither of the
whether or not they should be adjudicated.51
parties herein actually emerges victorious. It is the Court's earnest hope, therefore,
that with the impartial exposition and extended explanation of their respective rights in
We are well aware of the Court's rulings in a number of cases in the past allowing this decision, the parties may eventually see their way clear to an ultimate resolution of
recovery of moral damages where the dismissal of the employee was attended by bad their differences on more convivial terms.
faith or fraud, or constituted an act oppressive to labor, or was done in a manner
contrary to morals, good customs or public policy,52 and of exemplary damages if the
WHEREFORE, the decision of respondent National Labor Relations Commission is
dismissal was effected in a wanton, oppressive or malevolent manner.53 We do not
hereby SET ASIDE. Private respondent is ORDERED to pay petitioner back wages for
feel, however, that an award of the damages prayed for in this petition would be proper
a period not exceeding three (3) years, without qualification or deduction,58 and, in lieu
even if, seemingly, the facts of the case justify their allowance. In the aforestated
of reinstatement, separation pay equivalent to one (1) month for every year of service,
cases of illegal dismissal where moral and exemplary damages were awarded, the
a fraction of six (6) months being considered as one (1) whole year.
dismissed employees were genuinely without fault and were undoubtedly victims of the
erring employers' capricious exercise of power.
SO ORDERED.
In the present case, we find that both petitioner and private respondent can equally be
faulted for fanning the flames which gave rise to and ultimately aggravated this
controversy, instead of sincerely negotiating a peaceful settlement of their disparate
claims. The records reveal how their actuations seethed with mutual antagonism and
the undeniable enmity between them negates the likelihood that either of them acted in
good faith. It is apparent that each one has a cause for damages against the other. For
this reason, we hold that no moral or exemplary damages can rightfully be awarded to
petitioner.

On this score, we are once again persuaded by the validity of the following
recommendation of the Solicitor General:

The Labor Arbiter's decision in RAB Case No. 0452-84 should be

modified. There was no voluntary abandonment in this case because
petitioner has a justifiable excuse for his absence, or such absence does
not warrant outright dismissal without notice and hearing. Private
respondent, therefore, is guilty of illegal dismissal. He should be ordered
to pay backwages for a period not exceeding three years from date of
dismissal. And in lieu of reinstatement, petitioner may be paid separation
pay equivalent to one (1) month('s) salary for every year of service, a
fraction of six months being considered as one (1) year in accordance with
recent jurisprudence (Tan, Jr. vs. NLRC, 183 SCRA 651). But all claims
for damages should be dismissed, for both parties are equally at fault.54
ROSAURA P. CORDON, complainant, vs. JESUS BALICANTA, respondent.
RESOLUTION
PER CURIAM:
On August 21, 1985, herein complainant Rosaura Cordon filed with this Court a
complaint for disbarment, docketed as Administrative Case No. 2797, against Atty. Jesus
Balicanta. After respondents comment to the complaint and complainants reply thereto, this
Court, on March 29, 1995 referred the matter to the Integrated Bar of the Philippines (IBP, for
brevity) for investigation, report and recommendation within 90 days from
notice.Commissioner George Briones of the IBP Commission on Bar Discipline was initially
tasked to investigate the case. Commissioner Briones was later on replaced by Commissioner
Renato Cunanan. Complainant filed a supplemental complaint which was duly admitted and,
as agreed upon, the parties filed their respective position papers.
Based on her complaint, supplemental complaint, reply and position paper, the
complainant alleged the following facts:
When her husband Felixberto C. Jaldon died, herein complainant Rosaura Cordon
and her daughter Rosemarie inherited the properties left by the said decedent. All in all,
complainant and her daughter inherited 21 parcels of land located in Zamboanga City. The
lawyer who helped her settle the estate of her late husband was respondent Jesus Balicanta.
Sometime in the early part of 1981, respondent enticed complainant and her daughter
to organize a corporation that would develop the said real properties into a high-scale
commercial complex with a beautiful penthouse for complainant. Relying on these apparently
sincere proposals, complainant and her daughter assigned 19 parcels of land to Rosaura
Enterprises, Incorporated, a newly-formed and duly registered corporation in which they
assumed majority ownership. The subject parcels of land were then registered in the name of
the corporation.
Thereafter, respondent single-handedly ran the affairs of the corporation in his
capacity as Chairman of the Board, President, General Manager and Treasurer. The
respondent also made complainant sign a document which turned out to be a voting trust
agreement. Respondent likewise succeeded in making complainant sign a special power of
attorney to sell and mortgage some of the parcels of land she inherited from her deceased
husband. She later discovered that respondent transferred the titles of the properties to a
certain Tion Suy Ong who became the new registered owner thereof. Respondent never
accounted for the proceeds of said transfers.
In 1981, respondent, using a spurious board resolution, contracted a loan from the
Land Bank of the Philippines (LBP, for brevity) in the amount of Two Million Two Hundred
Twenty Pesos (P2,220,000) using as collateral 9 of the real properties that the complainant
and her daughter contributed to the corporation. The respondent ostensibly intended to use
the money to construct the Baliwasan Commercial Center (BCC, for brevity). Complainant
later on found out that the structure was made of poor materials such as sawali, coco lumber
and bamboo which could not have cost the corporation anything close to the amount of the
loan secured.
For four years from the time the debt was contracted, respondent failed to pay even a
single installment. As a result, the LBP, in a letter dated May 22, 1985, informed respondent
that the past due amortizations and interest had already accumulated to Seven Hundred
Twenty-nine Thousand Five Hundred Three Pesos and Twenty-five Centavos (P729,503.25).
The LBP made a demand on respondent for payment for the tenth time. Meanwhile, when the
BCC commenced its operations, respondent started to earn revenues from the rentals of
BCCs tenants. On October 28, 1987, the LBP foreclosed on the 9 mortgaged properties due
to non-payment of the loan.
Respondent did not exert any effort to redeem the foreclosed properties. Worse, he
sold the corporations right to redeem the mortgaged properties to a certain Hadji Mahmud
Jammang through a fake board resolution dated January 14, 1989 which clothed himself with
the authority to do so.Complainant and her daughter, the majority stockholders, were never
informed of the alleged meeting held on that date. Again, respondent never accounted for the
proceeds of the sale of the right to redeem. Respondent also sold to Jammang a parcel of
land belonging to complainant and her daughter which was contiguous to the foreclosed
properties and evidenced by Transfer Certificate of Title No. 62807. He never accounted for
the proceeds of the sale.
Sometime in 1983, complainants daughter, Rosemarie, discovered that their ancestral
home had been demolished and that her mother, herein complainant, was being detained in
a small nipa shack in a place called Culianan. Through the help of Atty. Linda Lim, Rosemarie
was able to locate her mother. Rosemarie later learned that respondent took complainant
away from her house on the pretext that said ancestral home was going to be remodeled and
painted. But respondent demolished the ancestral home and sold the lot to Tion Suy Ong,
using another spurious board resolution designated as Board Resolution No. 1, series of
1992. The resolution contained the minutes of an alleged organizational meeting of the
directors of the corporation and was signed by Alexander Wee, Angel Fernando, Erwin
Fernando and Gabriel Solivar. Complainant and her daughter did not know how these persons
became stockholders and directors of the corporation. Respondent again did not account for
the proceeds of the sale.
Complainant and her daughter made several demands on respondent for the delivery
of the real properties they allegedly assigned to the corporation, for an accounting of the
proceeds of the LBP loan and as well as the properties sold, and for the rentals earned by
BCC. But the demands remained unheeded. Hence, complainant and her daughter, in a letter
dated June 4, 1985, terminated the services of respondent as their lawyer and repeated their
demands for accounting and turn-over of the corporate funds, and the return of the 19 titles
that respondent transferred to the corporation.They also threatened him with legal action in a
letter dated August 3, 1985.
Soon after, complainant found out from the Securities and Exchange Commission
(SEC, for brevity) that Rosaura Enterprises, Inc., due to respondents refusal and neglect,
failed to submit the corporations annual financial statements for 1981, 1982 and 1983; SEC
General Information Sheets for 1982, 1983 and 1984; Minutes of Annual Meetings for 1982,
1983 and 1984; and Minutes of Annual Meetings of Directors for 1982, 1983 and 1984.
Complainant also discovered that respondent collected rental payments from the
tenants of BCC and issued handwritten receipts which he signed, not as an officer of the
corporation but as the attorney-at-law of complainant. Respondent also used the tennis court
of BCC to dry his palay and did not keep the buildings in a satisfactory state, so much so that
the divisions were losing plywood and other materials to thieves.
Complainant likewise accused respondent of circulating rumors among her friends
and relatives that she had become insane to prevent them from believing whatever
complainant said. According to complainant, respondent proposed that she legally separate
from her present husband so that the latter would not inherit from her and that respondent be
adopted as her son.
For his defense, respondent, in his comment and position paper, denied employing
deceit and machination in convincing complainant and her daughter to assign their real
properties to the corporation; that they freely and voluntary executed the deeds of assignment
and the voting trust agreement that they signed; that he did not single-handedly manage the
corporation as evidenced by certifications of the officers and directors of the corporation; that
he did not use spurious board resolutions authorizing him to contract a loan or sell the
properties assigned by the complainant and her daughter; that complainant and her daughter
should be the ones who should render an accounting of the records and revenues inasmuch
as, since 1984 up to the present, the part-time corporate book-keeper, with the connivance of
the complainant and her daughter, had custody of the corporate records; that complainant and
her daughter sabotaged the operation of BCC when they illegally took control of it in 1986;
that he never pocketed any of the proceeds of the properties contributed by the complainant
and her daughter; that the demolition of the ancestral home followed legal procedures; that
complainant was never detained in Culianan but she freely and voluntarily lived with the family
of P03 Joel Constantino as evidenced by complainants own letter denying she was kidnapped;
and that the instant disbarment case should be dismissed for being premature, considering
the pendency of cases before the SEC and the Regional Trial Court of Zamboanga involving
him and complainant.
Based on the pleadings and position papers submitted by the parties, Commissioner
Renato Cunanan, in his report[1] dated July 1, 1999, recommended respondents disbarment
based on the following findings:
A. The complainant, Rosaura Jaldon-Cordon and her daughter, Rosemarie were
stockholders of a corporation, together with respondent, named Rosaura Enterprises, Inc.
Per the Articles of Incorporation marked as Annex A of Complainants Position Paper,
complainants subscription consists of 55% of the outstanding capital stock while her
daughters consists of 18%, giving them a total of 73%. Respondents holdings consist of
24% while three other incorporators, Rosauro L. Alvarez, Vicente T. Maalac and Darhan S.
Graciano each held 1% of the capital stock of the corporation.
B. On April 5, 1981, complainant and her daughter Rosemarie Jaldon executed two Deeds
of Transfer and Assignment conveying and transferring to the corporation 19 parcels of land
in exchange for shares of stock in the corporation.
xxx xxx xxx
C. Both Deeds of Assignment particularly page 3 thereof indicate that respondent accepted
said assignment of properties and titles in behalf of the corporation as Treasurer. The deeds
were signed on April 5, 1981.
xxx xxx xxx
Together, therefore, complainant and her daughter owned 1,711 shares of the 1,750 shares
comprising the authorized capital stock of the corporation of 97% thereof.
No increase in capitalization was applied for by the corporation.
F. Respondent claims in his Comment, his Answer and his Position Paper that on April 4,
1981 he was elected as Chairman and Director and on April 5, 1981 he was elected
President of the corporation. Respondents own Annexes marked as G and G-1 of his
Comment show that on April 4, 1981 he was not only elected as Chairman and Director as
he claims but as Director, Board Chairman and President. The purported minutes was only
signed by respondent and an acting Secretary by the name of Vicente Maalac.
Said Annex does not show who was elected Treasurer.
Respondents Annex H and H-1 shows that in the alleged organizational meeting of the
directors on April 5, 1981 a certain Farnacio Bucoy was elected Treasurer.Bucoys name
does not appear as an incorporator nor a stockholder anywhere in the documents submitted.
The purported minutes of the organizational meeting of the directors was signed only by
respondent Balicanta and a Secretary named Verisimo Martin.
G. Since respondent was elected as Director, Chairman and President on April 4, 1981 as
respondents own Annexes G to G-1 would show, then complainants claim that respondent
was likewise acting as Treasurer of two corporations bear truth and credence as respondent
signed and accepted the titles to 19 parcels of land ceded by the complainant and her
daughter, as Treasurer on April 5, 1981 after he was already purportedly elected as
Chairman, President and Director.
H. Respondent misleads the Commission into believing that all the directors signed the
minutes marked as Exhibit H to H-1 by stating that the same was duly signed by all the
Board of Directors when the document itself shows that only he and one Verisimo Martin
signed the same.
He also claims that all the stockholders signed the minutes of organizational meeting
marked as Annexes G and G-1 of his Comment yet the same shows that only the acting
Chairman and acting Secretary signed.
I. Respondent claims that the Board or its representative was authorized by the stockholders
comprising 2/3 of the outstanding capital stock, as required by law, to mortgage the parcels
of land belonging to the corporation, which were all assigned to the corporation by
complainant and her daughter, by virtue of Annex I and I-1: attached to his Comment.
The subject attachment however reveals that only the following persons signed their
conformity to the said resolution: respondent Balicanta who owned 109 shares, Vicente
Maalac (1 share), Daihan Graciano (1 share).
Complainants who collectively held a total of 1,711 shares out of the 1,750 outstanding
capital stock of the corporation were not represented in the purported stockholders meeting
authorizing the mortgage of the subject properties.
The 2/3 vote required by law was therefore not complied with yet respondent proceeded to
mortgage the subject 9 parcels of land by the corporation.
J. Respondent further relies on Annex J of his Comment, purportedly the minutes of a
special meeting of the Board of Directors authorizing him to obtain a loan and mortgage the
properties of the corporation dated August 29, 1981. This claim is baseless. The required
ratification of 2/3 by the stockholders of records was not met.Again, respondent attempts to
mislead the Commission and Court.
K. Further, the constitution of the Board is dubious. The alleged minutes of the
organizational meeting of the stockholders electing the members of the Board, have not
been duly signed by the stockholders as shown in respondents annex G which was
purportedly the organizational meeting of the stockholders.
L. Also, Annex J of respondents Comment which purportedly authorized him to obtain a loan
and to mortgage the 9 parcels of land was only signed by himself and a secretary.
M. In said Annex 'J' of respondents Comment he stated that complainant Rosaura Cordon
was on leave by virtue of a voting trust agreement allegedly executed by complainant in his
favor covering all her shares of stock. The claim is baseless. The voting trust referred to by
respondent (annex D of his Comment), even if it were assumed to be valid, covered only
266 shares of complainants yet she owned a total of 1,039 shares after she and her
daughter ceded in favor of the corporation 19 parcels of land.
Being a former lawyer to complainant, respondent should have ensured that her interest was
safeguarded. Yet, complainant was apparently and deliberately left our (sic) on the pretext
that, she had executed a voting trust agreement in favor of respondent.
It is suspicious that complainant was made to sign a voting trust agreement on 21 August
1981 and immediately thereafter, the resolutions authorizing respondent to obtain a loan and
to mortgage the 9 parcels of land were passed and approved.
N. It is also highly irregular for respondent who is a lawyer, to allow a situation to happen
where, with the exclusion of complainant as director the result was that there remained only
4 members of the Board,.
O. Respondents own pleadings submitted to the Commission contradict each other.
1. For instance, while in his Comment respondent DENIES that he employed deceit
and machination in convincing the complainant and her daughter to sign the articles of
incorporation of Rosaura Enterprises and in ceding to the corporation 19 parcels of
land in Zamboanga City, because they freely, intelligently and voluntarily signed the
same, yet, in his Position Paper, respondent took another stance.
In paragraphs 1.1 and 1.2 of his Position Paper which was submitted 12 years later,
respondent claimed that it was actually the idea of Atty. Rosaura L. Alvarez that a
corporation be put up to incorporate the estate of the late Felixberto D. Jaldon.
2. Likewise, respondent claimed that complainant and her daughter were not directors,
hence they were not notified of meetings, in paragraph 2-6 (c) of his Comment he
blamed the other stockholders and directors for the corporations inability to comply
with the Land Banks demands saying that they have consistently failed since 1982 to
convene (1.) for the annual stockholders meetings and (i.i) for the monthly board
meeting.
His own pleadings claim that he had been the Chairman/President since 1981 to the
present. If (sic) so, it was his duty to convene the stockholders and the directors for
meetings.
Respondent appeared able to convene the stockholders and directors when he
needed to make a loan of p2.2 million; when he sold the corporations right of
redemption over the foreclosed properties of the corporation to Jammang, when he
sold one parcel of land covered by TCT 62,807 to Jammang in addition to the 9
parcels of land which were foreclosed, and when he sold the complainants ancestral
home covered by TCT No. 72,004.
It is thus strange why respondent claims that the corporation could not do anything to
save the corporations properties from being foreclosed because the stockholders and
directors did not convene.
This assertion of respondent is clearly evident of dishonest, deceitful and immoral
conduct especially because, in all his acts constituting conveyances of corporate
property, respondent used minutes of stockholders and directors meetings signed only
by him and a secretary or signed by him and persons who were not incorporators
much less stockholders.
It is worthy of note that in respondents Exhibits 15, 16, 17 and 18 of his position paper,
there were 7 new stockholders and complainant appeared to have only 266 shares to
her name while her daughter Rosemarie had no shares at all. Respondent did not
present any proof of conveyance of shares by complainant and her daughter.
It is further worth noting that complainants voting trust (annex D of respondents
Comment) where she allegedly entrusted 266 shares to respondent on August 21,
1981 had only a validity of 5 years. Thus, she should have had her entire holdings of
1,283 shares back in her name in August 1986.
Respondents purported minutes of stockholders meeting (Exhs. 15 and 17) do not
reflect this.
There was no explanation whatsoever from respondent on how complainant and her
daughter lost their 97% control holding in the corporation.
3. As a further contradiction in respondents pleadings, we note that in paragraph 2.7.C
of his Comment he said that only recently, this year, 1985, the complainant and her
aforenamed daughter examined said voluminous supporting receipts/documents which
had previously been examined by the Land Bank for loan releases, during which
occasion respondent suggested to them that the corporation will have to hire a full-time
book-keeper to put in order said voluminous supporting receipts/documents, to which
they adversely reacted due to lack of corporate money to pay for said book-keeper.
But in respondents Position Paper par. 6.3 he stated that:
Anyway, it is not the respondent but rather the complainant who should render a
detailed accounting to the corporation of the corporate records as well as
corporate revenues/income precisely because since 1994 to the present:
(a). The corporate part-time book-keeper Edilberto Benedicto, with the
indispensable connivance and instigation of the complainant and her daughter,
among others, has custody of the corporate records, xxx
4. In other contradictory stance, respondent claims in par. 7.3 of his position paper that
complainant and her daughter sabotaged the BCC operations of the corporation by
illegally taking over actual control and supervision thereof sometime in 1986, xxx
Yet respondents own exhibits in his position paper particularly Exhibit 15 and 16 where
the subject of the foreclosed properties of the corporation comprising the Baliwasan
Commercial Center (BCC) was taken up, complainant and her daughter were not even
present nor were they the subject of the discussion, belying respondents claim that the
complainant and her daughter illegally took actual control of BCC.
5. On the matter of the receipts issued by respondent evidencing payment to him of
rentals by lessees of the corporation, attached to the complaint as Annexes H to H-17,
respondent claims that the receipts are temporary in nature and that subsequently
regular corporate receipts were issued. On their face however the receipts clearly
appear to be official receipts, printed and numbered duly signed by the respondent
bearing his printed name.
It is difficult to believe that a lawyer of respondent stature would issue official receipts
to lessees if he only meant to issue temporary ones.
6. With regard to respondents claim that the complainant consented to the sale of her
ancestral home, covered by TCT No. T-72,004 to one Tion Suy Ong for which he
attached as Exhibit 22 to his Position Paper the minutes of an annual meeting of the
stockholders, it behooves this Commission why complainants signature had to be
accompanied by her thumb mark. Furthermore, complainants signature appears
unstable and shaky. This Office is thus persuaded to believe complainants allegation
in paragraph 3b of her position paper that since September 1992 up to March 1993
she was being detained by one PO# (sic) Joel Constantino and his wife under
instructions from respondent Balicanta.
This conclusion is supported by a letter from respondent dated March 1993, Annex H
of complainants position paper, where respondent ordered Police Officer Constantino
to allow Atty. Linda Lim and Rosemarie Jaldon to talk to Tita Rosing.
The complainants thumb mark together with her visibly unstable shaky signature lends
credence to her claim that she was detained in the far flung barrio of Culianan under
instructions of respondent while her ancestral home was demolished and the lot sold
to one Tion Suy Ong.
It appears that respondent felt compelled to over-ensure complainants consent by
getting her to affix her thumb mark in addition to her signature.
7. Respondent likewise denies that he also acted as Corporate Secretary in addition to
being the Chairman, President and Treasurer of the corporation. Yet, respondent
submitted to this commission documents which are supported to be in the possession
of the Corporate Secretary such as the stock and transfer book and minutes of
meetings.
The foregoing findings of this Commission are virtual smoking guns that prove on no
uncertain terms that respondent, who was the legal counsel of complainant in the latter
part of the settlement of the estate of her deceased husband, committed unlawful,
immoral and deceitful conduct proscribed by Rule 1.01 of the code of professional
responsibility.
Likewise, respondent clearly committed a violation of Canon 15 of the same code
which provides that A lawyer should observe candor fairness and loyalty in all his
dealings and transactions with his client.
Respondents acts gravely diminish the publics respect for the integrity of the
profession of law for which this Commission recommends that he be meted the penalty
of disbarment.
The pendency of the cases at the SEC and the Regional Trial Court of Zamboanga
filed by complainant against respondent does not preclude a determination of
respondents culpability as a lawyer.
This Commission cannot further delay the resolution of this complaint filed in 1985 by
complainant, and old widow who deserves to find hope and recover her confidence in
the judicial system.
The findings of this office, predominantly based on documents adduced by both parties
lead to only one rather unpalatable conclusion. That respondent Atty. Jesus F.
Balicanta, in his professional relations with herein complainant did in fact employ
unlawful, dishonest, and immoral conduct proscribed in no uncertain terms by Rule
1.01 of the Code of Professional Responsibility. In addition, respondents actions
clearly violated Canon 15 to 16 of the same Code.
It is therefore our unpleasant duty to recommend that respondent, having committed
acts in violation of the Canons of Professional Responsibility, thereby causing a great
disservice to the profession, be meted the ultimate sanction of disbarment.[2]
On September 30, 1999, while Commissioner Cunanans recommendation for
respondents disbarment was pending review before Executive Vice-President and
Northern Luzon Governor Teofilo Pilando, respondent filed a motion requesting for a
full-blown investigation and for invalidation of the entire proceedings and/or remedial
action under Section 11, Rule 139-B, Revised Rules of Court, alleging that he had
evidence that Commissioner Cunanans report was drafted by the lawyers of
complainant, Attys. Antonio Cope and Rita Linda Jimeno. He presented two unsigned
anonymous letters allegedly coming from a disgruntled employee of Attys. Cope and
Jimeno. He claimed to have received these letters in his mailbox.[3]
Respondents motion alleging that Attys. Antonio Cope and Rita Linda Jimeno
drafted Commissioner Cunanans report was accompanied by a complaint praying for
the disbarment of said lawyers including Commissioner Cunanan. The complaint was
docketed as CBD Case No. 99-658. After Attys. Cope and Jimeno and Commissioner
Cunanan filed their answers, a hearing was conducted by the Investigating Committee
of the IBP Board of Governors.
On May 26, 2001, the IBP Board of Governors issued a resolution[4] dismissing
for lack of merit the complaint for disbarment against Attys. Cope and Jimeno and
Commissioner Cunanan. And in Adm. Case No. 2797, the Board adopted and approved
the report and recommendation of Commissioner Cunanan, and meted against herein
respondent Balicanta the penalty of suspension from the practice of law for 5 years for
commission of acts of misconduct and disloyalty by taking undue and unfair advantage
of his legal knowledge as a lawyer to gain material benefit for himself at the expense of
complainant Rosaura P. Jaldon-Cordon and caused serious damage to the
complainant.[5]
To support its decision, the Board uncovered respondents fraudulent acts in the
very same documents he presented to exonerate himself. It also took note of
respondents contradictory and irreconcilable statements in the pleadings and position
papers he submitted. However, it regarded the penalty of disbarment as too severe for
respondents misdeeds, considering that the same were his first offense.[6]
Pursuant to Section 12 (b), Rule 139-B of the Rules of Court,[7] the said resolution
in Administrative Case No. 2797 imposing the penalty of suspension for 5 years on
respondent was automatically elevated to this Court for final action. On the other hand,
the dismissal of the complaint for disbarment against Attys. Cope and Jimeno and
Commissioner Cunanan, docketed as CBD Case No. 99-658, became final in the
absence of any petition for review.
This Court confirms the duly supported findings of the IBP Board that respondent
committed condemnable acts of deceit against his client. The fraudulent acts he carried
out against his client followed a well thought of plan to misappropriate the corporate
properties and funds entrusted to him. At the very outset, he embarked on his devious
scheme by making himself the President, Chairman of the Board, Director and Treasurer
of the corporation, although he knew he was prohibited from assuming the position of
President and Treasurer at the same time.[8] As Treasurer, he accepted in behalf of the
corporation the 19 titles that complainant and her daughter co-owned. The other
treasurer appointed, Farnacio Bucoy, did not appear to be a stockholder or director in
the corporate records. The minutes of the meetings supposedly electing him and Bucoy
as officers of the corporation actually bore the signatures of respondent and the
secretary only, contrary to his claim that they were signed by the directors and
stockholders.
 He likewise misled the IBP investigating commission in claiming that the
mortgage of 9 of the properties of the corporation previously belonging to complainant
and her daughter was ratified by the stockholders owning two-thirds or 67% of the
outstanding capital stock when in fact only three stockholders owning 111 out of 1,750
outstanding shares or 6.3% assented thereto. The alleged authorization granting him
the power to contract the LBP loan for Two Million Two Hundred Twenty Pesos
(P2,220,000) was also not approved by the required minimum of two-thirds of the
outstanding capital stock despite respondents claim to the contrary. In all these
transactions, complainant and her daughter who both owned 1,711 out of the 1,750
outstanding shares of the corporation or 97.7% never had any participation. Neither
were they informed thereof.
Clearly, there was no quorum for a valid meeting for the discussion and approval
of these transactions.
Respondent cannot take refuge in the contested voting trust agreement
supposedly executed by complainant and her daughter for the reason that it authorized
respondent to represent complainant for only 266 shares.
Aside from the dishonest transactions he entered into under the cloak of sham
resolutions, he failed to explain several discrepancies in his version of the facts. We
hereby reiterate some of these statements noted by Commissioner Cunanan in his
findings.
First, respondent blamed the directors and the stockholders who failed to
convene for the required annual meetings since 1982. However, respondent appeared
able to convene the stockholders and directors when he contracted the LBP debt, when
he sold to Jammang the corporations right of redemption over the foreclosed properties
of the corporation, when he sold one parcel of land covered by TCT No. 62807 to
Jammang, when he mortgaged the 9 parcels of land to LBP which later foreclosed on
said mortgage, and when he sold the complainants ancestral home covered by TCT No.
72004.
Second, the factual findings of the investigating commission, affirmed by the IBP
Board, disclosed that complainant and her daughter own 1,711 out of 1,750 shares of
the outstanding capital stock of the corporation, based on the Articles of Incorporation
and deeds of transfer of the properties. But respondents evidence showed that
complainant had only 266 shares of stock in the corporation while her daughter had
none, notwithstanding the fact that there was nothing to indicate that complainant and
her daughter ever conveyed their shares to others.
Respondent likewise did not explain why he did not return the certificates
representing the 266 shares after the lapse of 5 years from the time the voting trust
certificate was executed in 1981.[9]
The records show that up to now, the complainant and her daughter own 97% of
the outstanding shares but respondent never bothered to explain why they were never
asked to participate in or why they were never informed of important corporate decisions.
Third, respondent, in his comment, alleged that due to the objection of
complainant and her daughter to his proposal to hire an accountant, the corporation had
no formal accounting of its revenues and income. However, respondents position paper
maintained that there was no accounting because the part-time bookkeeper of the
corporation connived with complainant and her daughter in keeping the corporate
records.
Fourth, respondents claim that complainant and her daughter took control of the
operations of the corporation in 1986 is belied by the fact that complainant and her
daughter were not even present in the alleged meeting of the board (which took place
after 1986) to discuss the foreclosure of the mortgaged properties. The truth is that he
never informed them of such meeting and he never gave control of the corporation to
them.
Fifth, Commissioner Cunanan found that:
5. on the matter of the receipts issued by respondent evidencing payment to him of
rentals by lessees of the corporation, attached to the complaint as Annexes H to H-17,
respondent claims that the receipts are temporary in nature and that subsequently
regular corporate receipts were issued. On their face however the receipts clearly
appear to be official receipts, printed and numbered duly signed by the respondent
bearing his printed name.
It is difficult to believe that a lawyer of respondents stature would issue official receipts
to lessees if he only meant to issue temporary ones.[10]
Sixth, respondent denies that he acted as Corporate Secretary aside from being
the Chairman, President and Treasurer of the corporation. Yet respondent submitted to
the investigating commission documents which were supposed to be in the official
possession of the Corporate Secretary alone such as the stock and transfer book and
minutes of meetings.
Seventh, he alleged in his comment that he was the one who proposed the
establishment of the corporation that would invest the properties of the complainant but,
in his position paper, he said that it was a certain Atty. Rosauro Alvarez who made the
proposal to put up the corporation.
After a thorough review of the records, we find that respondent committed grave
and serious misconduct that casts dishonor on the legal profession.His misdemeanors
reveal a deceitful scheme to use the corporation as a means to convert for his own
personal benefit properties left to him in trust by complainant and her daughter.
Not even his deviousness could cover up the wrongdoings he committed. The
documents he thought could exculpate him were the very same documents that revealed
his immoral and shameless ways. These documents were extremely revealing in that
they unmasked a man who knew the law and abused it for his personal gain without any
qualms of conscience. They painted an intricate web of lies, deceit and opportunism
beneath a carefully crafted smokescreen of corporate maneuvers.
The Code of Professional Responsibility mandates upon each lawyer, as his duty
to society, the obligation to obey the laws of the land and promote respect for law and
legal processes. Specifically, he is forbidden to engage in unlawful, dishonest, immoral
or deceitful conduct.[11] If the practice of law is to remain an honorable profession and
attain its basic ideal, those enrolled in its ranks should not only master its tenets and
principles but should also, in their lives, accord continuing fidelity to them.[12] Thus, the
requirement of good moral character is of much greater import, as far as the general
public is concerned, than the possession of legal learning.[13] Lawyers are expected to
abide by the tenets of morality, not only upon admission to the Bar but also throughout
their legal career, in order to maintain ones good standing in that exclusive and honored
fraternity.[14] Good moral character is more than just the absence of bad character. Such
character expresses itself in the will to do the unpleasant thing if it is right and the resolve
not to do the pleasant thing if it is wrong.[15] This must be so because vast interests are
committed to his care; he is the recipient of unbounded trust and confidence; he deals
with his clients property, reputation, his life, his all.[16]
Indeed, the words of former Presiding Justice of the Court of Appeals Pompeyo
Diaz cannot find a more relevant application than in this case:
There are men in any society who are so self-serving that they try to make law serve
their selfish ends. In this group of men, the most dangerous is the man of the law who
has no conscience. He has, in the arsenal of his knowledge, the very tools by which he
can poison and disrupt society and bring it to an ignoble end.[17]
Good moral standing is manifested in the duty of the lawyer to hold in trust all
moneys and properties of his client that may come into his possession.[18] He is bound
to account for all money or property collected or received for or from the client.[19] The
relation between an attorney and his client is highly fiduciary in nature. Thus, lawyers
are bound to promptly account for money or property received by them on behalf of their
clients and failure to do so constitutes professional misconduct.[20]
This Court holds that respondent cannot invoke the separate personality of the
corporation to absolve him from exercising these duties over the properties turned over
to him by complainant. He blatantly used the corporate veil to defeat his fiduciary
obligation to his client, the complainant.Toleration of such fraudulent conduct was never
the reason for the creation of said corporate fiction.
The massive fraud perpetrated by respondent on the complainant leaves us no
choice but to set aside the veil of corporate entity. For purposes of this action therefore,
the properties registered in the name of the corporation should still be considered as
properties of complainant and her daughter.The respondent merely held them in trust
for complainant (now an ailing 83-year-old) and her daughter. The properties conveyed
fraudulently and/or without the requisite authority should be deemed as never to have
been transferred, sold or mortgaged at all. Respondent shall be liable, in his personal
capacity, to third parties who may have contracted with him in good faith.
Based on the aforementioned findings, this Court believes that the gravity of
respondents offenses cannot be adequately matched by mere suspension as
recommended by the IBP. Instead, his wrongdoings deserve the severe penalty of
disbarment, without prejudice to his criminal and civil liabilities for his dishonest acts.
WHEREFORE, respondent Attorney Jesus T. Balicanta is hereby DISBARRED.
The Clerk of Court is directed to strike out his name from the Roll of Attorneys.
SO ORDERED.
HEIRS OF MANUEL A. ROXAS and TRINIDAD DE LEON VDA. DE ROXAS
(in substitution of original petitioner), petitioners, vs. COURT
OF APPEALS and MAGUESUN MANAGEMENT &
DEVELOPMENT CORPORATION, respondents.
DECISION
ROMERO, J.:
Trinidad de Leon Vda. de Roxas, substituted by her heirs,[1]
instituted
this petition for review of the Court of Appeals decision dated December 8,
1994 in "Trinidad de Leon Vda. de Roxas v. Maguesun Management and
Development: Corporation," (CA G.R. CV No. 38328), alleging reversible error
committed by respondent appellate court when it affirmed the decision of the
Regional Trial Court of Cavite. The issue presented before us is whether or
not private respondent Maguesun Corporation committed actual fraud in
obtaining a decree of registration over two unregistered parcels of land in
Tagaytay City, actual fraud being the only ground to reopen or review a decree
of registration.
The facts of the case are narrated below:
On July 2, 1990, herein private respondent Maguesun Management and
Development Corporation (Maguesun Corporation) filed an Application for
Registration of two parcels of unregistered land located in Barangay Sungay,
Tagaytay City (Lot Nos. 7231 and 7239, Cad-355, Tagaytay Cadastre) with
an area of 3,641 and 10,674 square meters respectively. The original
registration case was docketed as Case No. TG-373 before the Regional
Trial Court of Cavite, Branch 18, presided over by Judge Julieto Tabiolo. In
support of its application for registration, Maguesun Corporation presented a
Deed of Absolute Sale dated June 10, 1990, executed by Zenaida Melliza as
vendor and indicating the purchase price to be P170,000.00. Zenaida Melliza
in turn, bought the property from the original petitioner herein, Trinidad de
Leon vda. de Roxas for P200,000.00 two and a half months earlier, as
evidenced by a Deed of Sale dated March 26, 1990 and an Affidavit of Self-
Adjudication dated March 24, 1990.
Notices of the initial hearing were sent by the Land Registration Authority
(the National Land Titles and Deeds Registration Authority or NALTDRA) to
Hilario Luna, Jose Gil and Leon Luna on the basis of Maguesun
Corporation's application for registration. Since Trinidad de Leon vda. de
Roxas was not named as an adjoining owner, occupant or adverse claimant,
she was not sent a notice of the proceedings. Publication was made in the
Official Gazette and the Record Newsweekly.[2] After an Order of general
default was issued, the trial court proceeded to hear the land registration
case. On October 4, 1990, the Land Registration Authority reported, among
other things, that the subject parcels of land had previously been applied for
registration in Land Registration Case No. 500, GLRO Record No. 55072 at
the Court of First Instance of Cavite by Manuel A. Roxas and Trinidad de
Leon but no decision has been rendered thereon.[3] Eventually, on February
13, 1991 the Regional Trial Court granted Maguesun Corporation's
application for registration (Land Registration Case No. TG-373) in a three-
page decision with the following dispositive portion:[4]
"WHEREFORE, this Court gives imprimatur to the application for registration
of said lands described in plan As-04-000108? Lot Nos. 7231 and 7239, one
with an area of 3,641 and the other with an area of 10,674 square meters, as
supported and shown by the corresponding technical descriptions now
forming part of the records, in the name of Maguesun Management and
Development Corporation, with office address at 521 Edsa, Quezon City,
free from all liens and encumbrances and from any other adverse claims of
any kind and nature.
Upon finality of this Decision, the same ipso facto becomes executory, upon
which eventuality the corresponding decree of registration may thus be
issued.
SO ORDERED."
Consequently, the Regional Trial Court issued the Order for Issuance
of the Decree on March 14, 1991, after the afore-mentioned Decision in LRC
No. TG-373 became final[5] but not before it ordered, on February 14, 1991,
Land Registration Case No. 500 (GLRO Record No. 55072) applied for by
Manuel A Roxas and Trinidad de Leon, dismissed.
It was only when the caretaker of the property was being asked to
vacate the land that petitioner Trinidad de Leon Vda. de Roxas learned of its
sale and the registration of the lots in Maguesun Corporation's name.
Hence, on April 21, 1991, petitioner filed a petition for review before the
Regional Trial Court, docketed as Civil Case No. TG-1183 to set aside the
decree of registration on the ground that Maguesun Corporation committed
actual fraud. She alleged that the lots were among the properties she inherited
from her husband, former President Manuel A. Roxas, who died on April 15,
1946 and that her family had been in open, continuous, adverse and
uninterrupted possession of the subject property in the concept of owner for
more than thirty years before they applied for its registration under the Torrens
System of land titling. Petitioner further denied that she sold the lots to Zenaida
Melliza whom she had never met before and that her signature was forged in
both the Deed of Sale and the Affidavit of Self-Adjudication. In support of her
claims, she also listed a number of irregularities in the documents to prove
actual fraud. In addition, and perhaps more significantly, she claimed that
Maguesun Corporation intentionally omitted her name as an adverse claimant,
occupant or adjoining owner in the application for registration submitted to the
Land Registration Authority such that the latter could not send her a Notice of
Initial Hearing. As result, an order of general default was issued and Maguesun
Corporation's application for registration was granted. She charged Maguesun
Corporation with knowledge or authorship of the fraud owing to the fact that
Maguesun Corporation's president, Manolita Guevarra Suntay after whom the
corporation was named, was her niece. Manolita Suntay is the daughter of
Lourdes Guevarra Suntay, a deceased cousin of petitioner Vda. de Roxas who
used to help with the latter's business affairs. Manolita Suntay used to take
care of the registration and insurance of the latter's cars.[6]
The sole issue of the case, as laid down by the trial court after the pre-
trial, was whether or not Vda. de Roxas' signatures on the Deed of Absolute
Sale and the Affidavit of Self-Adjudication in favor of Zenaida Melliza were
forged.[7] Petitioner, who was then already 92 years of age, testified in open
court on February 11, 1992 that she has never met Zenaida Melliza, that she
did not sell the subject lots and that her signatures on the Deed of Sale and
Affidavit of Self-Adjudication were forged.[8] A document examiner from the
Philippine National Police (PNP) concluded that there was no forgery.[9] Upon
petitioner's motion, the signatures were re-examined by another expert from
the National Bureau of Investigation The latter testified that the signatures on
the questioned and sample documents were not written by the same
person.[10] Despite the foregoing testimonies and pronouncements, the trial
court dismissed the petition for review of decree of registration on April 15,
1992.[11] Placing greater weight on the findings and testimony of the PNP
document examiner, it concluded that the questioned documents were not
forged and if they were, it was Zenaida Melliza, and not Maguesun
Corporation, who was responsible. Accordingly, Maguesun Corporation did
not commit actual fraud. The court further noted that petitioner Mrs. Trinidad
Roxas had not been paying taxes for several years, which fact "exhibited what
appeared to be unmistakeable signs of not actually owning (the lots) any
more," and that her application for registration was "previously dismissed and
abandoned," thus indicating that "petitioner herself is aware that she had
already lost . x x interest, if not actually her rights, over the property in
question."[12]
In a decision dated December 8, 1994,[13] respondent court denied the
petition for review and affirmed the findings of the trial court. The Court of
Appeals held that petitioner failed to demonstrate that there was actual or
extrinsic fraud, not merely constructive or intrinsic fraud, a prerequisite for
purposes of annuling a judgment or reviewing a decree of registration.
Additionally, respondent court stated that the discrepancies or irregularities in
the Deed of Sale and Affidavit of Self-Adjudication pointed out by petitioner
are not patent or obvious, involve matters that are too trivial, requiring
knowledge of the intricacies of the law and are "not necessarily and exclusively
indicia of extrinsic fraud and/or bad faith especially when considered in the
light of circumstances hereinafter discussed." The records also show,
according to the appellate court, that Maguesun Corporation had not
concealed from the court either the existence of petitioner or any interest she
may have had in the registration proceedings. Finally, the Court of Appeals
ruled that publication of the initial hearing in the Official Gazette is sufficient to
confer jurisdiction upon the court.[14]
Hence, the instant petition for review where it is alleged that the Court
of Appeals erred in ruling that Maguesun Corporation did not commit actual
fraud warranting the setting aside of the registration decree and in resolving
the appeal on the basis of Maguesun Corporation's good faith. Petitioners pray
that the registration of the subject lots in the name of Maguesun Corporation
be cancelled, that said property be adjudicated in favor of petitioners and that
respondent corporation pay moral damages not less than P100,000.00,
exemplary damages not less than P36,000.00 and attorney's fees
of P60,000.00.
We find the petition for review impressed with merit.
1. Registration of untitled land under the Torrens System is done
pursuant to Presidential Decree No. 1529, the Property Registration Decree
which amended and codified laws relative to registration of
property.[15] Adjudication of land in a registration (or cadastral) case does not
become final and incontrovertible until the expiration of one year after the entry
of the final decree. Before such time, the decision remains under the control
and sound discretion of the court rendering the decree, which court after
hearing, may set aside the decision or decree and adjudicate the land to
another party.[16]Absence, minority or other disability of any person affected,
or any proceeding in court for reversing judgments, are not considered
grounds to reopen or revise said decree. However, the right of a person
deprived of land or of any estate or interest therein by adjudication or
confirmation of title obtained by actual fraud is recognized by law (Section 32
of Presidential Decree No. 1529) as a valid and legal basis for reopening and
revising a decree of registration.[17] It is further required that a petition for
reopening and review of the decree of registration be filed within one year from
the date of entry of said decree, that the petitioner has a real and dominical
right and the property has not yet been transferred to an innocent purchaser.[18]
Fraud is of two kinds: actual or constructive. Actual or positive fraud
proceeds from an intentional deception practiced by means of the
misrepresentation or concealment of a material fact.[19] Constructive fraud is
construed as a fraud because of its detrimental effect upon public interests
and public or private confidence, even though the act is not done or committed
with an actual design to commit positive fraud or injury upon other persons. [20]
Fraud may also be either extrinsic or intrinsic. Fraud is regarded as
intrinsic where the fraudulent acts pertain to an issue involved in the original
action, or where the acts constituting the fraud were or could have been
litigated therein, and is regarded as extrinsic where it prevents a party from
having a trial or from presenting his entire case to the court, or where it
operates upon matters pertaining not to the judgment itself but to the manner
in which it is procured, so that there is not a fair submission of the
controversy.[21] Extrinsic fraud is also actual fraud, but collateral to the
transaction sued upon.[22]
The distinctions are significant because only actual fraud or extrinsic
fraud has been accepted as grounds for a judgment to be annulled or, as in
this case, a decree of registration reopened and reviewed. [23] In the oft-cited
Macabingkil v. People's Homesite and Housing Corporation case, the Court
drew from American jurisprudence stating that "relief has been granted on the
ground that, by some fraud practiced directly upon the party seeking relief
against the judgment or decree, (and) that party has been prevented from
presenting all of his case to the court."[24] The "fraud" contemplated by the law
in this case (Section 32, P.D. No. 1529) is actual and extrinsic, which includes,
an intentional omission of fact required by law.[25] For fraud to justify a review
of a decree, it must be extrinsic or collateral, and the facts upon which it is
based have not been controverted or resolved in the case where the judgment
sought to be annulled was rendered.[26] Persons who were fraudulently
deprived of their opportunity to be heard in the original registration case are
entitled to a review of a decree of registration.
In Ramirez v. CA,[27] this Court adopted the Court of Appeals' ruling that
the suppression of the fact that the applicant spouses possessed the subject
ricefield merely as antichretic creditors and the fraudulent concealment and
misrepresentation in the application that no other persons had any claim or
interest in the said land, constitute specific allegations of extrinsic fraud
supported by competent proof. Failure and intentional omission of the
applicants to disclose the fact of actual physical possession by another person
constitutes an allegation of actual fraud.[28] Likewise, it is fraud to knowingly
omit or conceal a fact, upon which benefit is obtained to the prejudice of a third
person.[29]
The Court here finds that respondent Maguesun Corporation committed
actual fraud in obtaining the decree of registration sought to be reviewed by
petitioner.
Petitioner Vda. de Roxas contended that Maguesun Corporation
intentionally omitted their name, or that of the Roxas family, as having a claim
to or as an occupant of the subject property. In the corporation's application
for registration filed with the trial court in LRC No. TG-373, the following
declaration appears:
"6. That the names in full and addresses, as far as known to the
undersigned, of the owners of all adjoining properties; of the persons
mentioned in paragraphs 3 and 5 (mortgagors, encumbrancers, and
occupants) and of the person shown on the plan as claimants are as follows:
Hilario Luna, Jose Gil. Leon Luna. Provincial Road all at Tagaytay City (no
house No.)"[30]
The highlighted words are typed in with a different typewriter, with the first five
letters of the word "provincial" typed over correction fluid. Magesun
Corporation, however, annexed a differently-worded application for the petition
to review case (Civil Case No. TG-1183, "Trinidad de Leon Vda. deRoxas v.
Maguesun Management and Development Corporation, et al."). In the copy
submitted to the trial court, the answer to the same number is as follows:
Hilario Luna, Jose Gil, Leon Luna, Roxas.[31]
The discrepancy which is unexplained appears intentional. If the word "Roxas"
were indeed erased and replaced with "Provincial Road all at Tagaytay City
(no house No.)" in the original application submitted in LRC No. TG-373 but
the copy with the word "Roxas" was submitted to the trial court in Civil Case
No. TG-1183, it is reasonable to assume that the reason is to mislead the court
into thinking that "Roxas" was placed in the original application as an adjoining
owner, encumbrancer, occupant or claimant, the same application which
formed the basis for the Land Registration Authority in sending out notices of
initial hearing. Section 15 of Presidential Decree No 1529 also requires the
applicant for registration to state the full names and addresses of all occupants
of the land and those of adjoining owners, if known and if not known, the extent
of the search made to find them. Respondent corporation likewise failed to
comply with this requirement of law.
The truth is that the Roxas family had been in possession of the property
uninterruptedly through their caretaker, Jose Ramirez. [32] Respondent
Maguesun Corporation also declared in number 5 of the same application that
the subject land was unoccupied when in truth and in fact, the Roxas family
caretaker resided in the subject property. Respondent corporation is likewise
charged with the knowledge of such possession and occupancy, for its
President, who signed the Deed of Sale over the property, knew fully well that
her grandaunt Trinidad de Leon vda. de Roxas owned the property. It is
reasonable to expect her as a buyer to have inspected the property prior to the
sale such that the ascertainment of the current possessors or occupants could
have been made facilely. Respondent corporation's intentional concealment
and representation of petitioner's interest in the subject lots as possessor,
occupant and claimant constitutes actual fraud justifying the reopening and
review of the decree of registration. Through such misfeasance, the Roxas
family was kept ignorant of the registration proceedings involving their
property, thus effectively depriving them of their day in court.
2. Respondent Court of Appeals held that Maguesun Corporation had
not concealed from the court either the existence of Trinidad de Leon Vda.
deRoxas or any interest she may have in the registration proceedings for the
records are replete with references by Maguesun Corporation itself to
petitioner.[33] Mention of the late President's name as well as that of petitioner
was made principally in the Formal Offer of Exhibits for respondent
corporation, in a Copy of Plan of Lots 7231 and 7239, tax declarations and as
predecessor-in-interest. However, this is not sufficient compliance with what
the law requires to be stated in the application for registration. Disclosure of
petitioner's adverse interest, occupation and possession should be made at
the appropriate time, i.e., at the time of the application for registration,
otherwise, the persons concerned will not be sent notices of the initial hearing
and will, therefore, miss the opportunity to present their opposition or claims.
3. Publication of the Notice of Initial Hearing was made in the Official
Gazette and in the Record Newsweekly, admittedly not a newspaper of
general circulation. The Court of Appeals held that pursuant to Section 23 of
Presidential Decree No. 1529, publication in the Official Gazette is sufficient to
confer jurisdiction. Said provision of law expressly states that "the
Commissioner of Land Registration shall cause a notice of initial hearing to be
published once in the Official Gazette and once in a newspaper of general
circulation in the Philippines. Provided, however, that the publication in the
Official Gazette shall be sufficient to confer jurisdiction upon the court. x x x"
While publication of the notice in the Official Gazette is sufficient to
confer jurisdiction upon the court, publication in a newspaper of general
circulation remains an indispensable procedural requirement. Couched in
mandatory terms, it is a component of procedural due process and aimed at
giving "as wide publicity as possible" so that all persons having an adverse-
interest in the land subject of the registration proceedings may be notified
thereof.[34] Although jurisdiction of the court is not affected, the fact that
publication was not made in a newspaper of general circulation is material and
relevant in assessing the applicant's right or title to the land.
4. The allegations of forgery and the discrepancies in the documentary,
as well as in the testimonial evidence regarding this issue which are all crucial
to this case, compelled the Court to undertake a careful review of the facts of
the case.[35] A close scrutiny of the evidence on record leads the Court to the
irresistible conclusion that forgery was indeed attendant in the case at bar.
Although there is no proof of respondent Maguesun Corporation's direct
participation in the execution and preparation of the forged instruments, there
are sufficient indicia which proves that Maguesun Corporation is not the
"innocent purchaser for value" who merits the protection of the law.
In response to the questions fielded by the trial counsel and by counsel
for petitioner, PNP Document Examiner Zacarias Semacio sought to explain
all the differences pointed out in the questioned signatures and in the sample
signatures as having been caused merely by "natural variation." [36] He
concluded that the questioned signatures were not forged. In contrast, Chief
of the Questioned Documents Division of the National Bureau of Investigation,
Arcadio Ramos testified with more specificity as befits an expert that the
questioned and sample signatures were not written by one and the same
person because of "(t)he manner of execution of strokes the personalized
proportional characteristics of letters; the linking/connecting between letters
the structural pattern of letters and other minute details x x x."[37] Moreover,
petitioner Trinidad de Leon vda. de Roxas categorically declared that she has
never met Zenaida Melliza and did not sell the subject property.[38] Petitioner,
then over ninety years old, has no motive to attest to a falsehood. Petitioner
and her family also own several other pieces of property, some of which are
leased out as restaurants, e.g. Leo's Restaurant and Ma Mon Luk
Restaurant.[39] This is an indication that petitioner is not unaware of the value
of her properties. Hence, it is unlikely that she would sell over thirteen
thousand square meters of prime property in Tagaytay City to a stranger for a
measly P200,000.00. Finally, even to a layman's eye, the documents, as well
as the enlarged photographic exhibit of the signatures, reveal forgery. The
questioned signatures taken from the Deed of Sale and Affidavit of Self-
Adjudication are starkly different from the sample signatures in several
documents executed by petitioner. The questioned signatures are smooth and
rounded, and have none of the jagged and shaky character of petitioner's
signatures, characteristic of the penmanship of elderly persons.
There are also added considerations reflective of the dubious character
of the Affidavit of Self-Adjudication purportedly executed by petitioner.[40] In it
she declares that she is a resident of 22 8th Street, New Manila, Quezon City,
when she actually lives in 2 Park Road, North Forbes Park, Makati. She also
states that she is the "sole heir of the late Manuel De Roxas who died
sometime on the year 1944 at Manila." Petitioner's husband is President
Manuel A. Roxas and she refers to herself as Trinidad de Leon vda. de Roxas.
President Roxas was survived by petitioner and their two children, Ma. Rosario
Roxas and Gerardo Roxas (who predeceased petitioner). The fact that
petitioner was not the sole heir was known to the general public, as well as the
demise of the late President on April 15, 1946 while delivering a speech at
Clark Field, Pampanga. The aforementioned irregularities are too glaring to
have been ignored. If petitioner did in fact execute said Affidavit, there is no
reason why she should state facts other than the unadulterated truth
concerning herself and her family.
Additionally, Zenaida Melliza's non-appearance raises doubt as to her
existence. Her given address was Matina, Davao City. How was she related
to petitioner and what led her to purchase the subject property? Respondent
corporation could very well have presented her to prove the legitimacy of their
transaction. If petitioner were selling said property, would she not have offered
them first to interested relatives such as Manolita G. Suntay? Would an
ordinary person sell more than thirteen thousand square meters of prime
property for P170,000.00 when it was earlier purchased for P200,000.00?
These questions highlight several implausibilities in the alleged sale of the
subject property by herein petitioner. As Maguesun Corporation's President
who is related to petitioner, Manolita G. Suntay should have verified the sale
of the subject property by Zenaida Melliza. Manolita G. Suntay's closeness to
petitioner Vda. de Roxas, as one who even registered the latter's car,
suggests acquaintance with the late petitioner's properties as well as the
possibility that she took advantage of such knowledge.
From the foregoing, it is quite clear that respondent corporation cannot
tack its possession to that of petitioner as predecessor-in-interest. Zenaida
Melliza conveyed no title over the subject parcels of land to Maguesun
Corporation as she was not the owner thereof.[41] Maguesun Corporation is
thus not entitled to the registration decree which the trial court granted in its
decision. Palpably, petitioner has not been interrupted in her more than thirty
years of open, uninterrupted, exclusive and notorious possession in the
concept of an owner over the subject lots by the irregular transaction to
Zenaida Melliza. She therefore retains title proper and sufficient for original
registration over the two parcels of land in question pursuant to Section 14 of
Presidential Decree No. 1529.[42]
WHEREFORE, the instant petition is hereby GRANTED. The Decision
of the Court of Appeals in C.A. G.R. CV No. 38328 ("Trinidad de
Leon Vda. de Roxas v. Maguesun Management & Development
Corporation, et al.") promulgated on December 8, 1994 is hereby REVERSED
AND SET ASIDE. Accordingly, registration of title over the subject parcels of
land, described in Plan AS-04-000108, Lot Nos. 7231 and 7239, with an area
of 3,461 and 10,674 square meters, respectively, as shown and supported by
the corresponding technical descriptions now forming part of the Records of
LRC No. TG-373, is awarded to herein petitioner Trinidad de Leon vda. de
Roxas and her heirs, herein substituted as petitioners. Upon finality of this
Decision, the Land Registration Authority is hereby directed to ISSUE with
reasonable dispatch the corresponding decree of registration and certificate of
title pursuant to Section 39 of Presidential Decree No. 1529.
SO ORDERED.
[A.C. No. 4904. August 12, 2004]
ANA A. CHUA and MARCELINA HSIA, complainants, vs. ATTY. SIMEON M.
MESINA, JR., respondent.
DECISION
PER CURIAM:
By a verified complaint[1] received by the Office of the Bar Confidant on May 5,
1998,[2] Ana Alvaran Chua and Marcelina Hsia administratively charged Atty. Simeon M.
Mesina, Jr., for breach of professional ethics, gross professional misconduct, and
culpable malpractice.
As related by complainants, the following facts gave rise to the filing of the
complaint.
Respondent was, for years, Ana Alvaran Chua and her now deceased husband
Chua Yap Ans legal counsel and adviser upon whom they reposed trust and
confidence. They were in fact lessees of a building situated at Burgos Street,
Cabanatuan City (Burgos property) owned by respondents family, and another property
containing an area of 854 sq. m., situated at Melencio Street, Cabanatuan City (Melencio
property), also owned by respondents family whereon they (spouses Chua) constructed
their house. These two properties were mortgaged by the registered owner, respondents
mother Felicisima Melencio vda. de Mesina (Mrs. Mesina), in favor of the Planters
Development Bank to secure a loan she obtained.
As Mrs. Mesina failed to meet her obligation to the bank, respondent convinced
complainant Ana Chua and her husband to help Mrs. Mesina by way of settling her
obligation in consideration for which the Melencio property would be sold to them
at P850.00/sq. m.
Accommodating respondents request, the spouses Chua and their business
partner, herein co-complainant Marcelina Hsia, settled Mrs. Mesinas bank obligation in
the amount of P983,125.40.
A Deed of Absolute Sale dated January 19, 1985[3] conveying the Melencio
property for P85,400.00 was thereafter executed by Mrs. Mesina, whose name appears
therein as Felicisima M. Melencio, in favor of complainants.
As complainants were later apprised of the amount of capital gains tax they were
to pay, they consulted respondent about it. Respondent thus suggested to them that
another Deed of Absolute Sale should be executed, antedated to 1979 before the
effectivity of the law mandating the payment of capital gains tax. As suggested by
respondent, another Deed of Absolute Sale antedated February 9, 1979[4] was executed
by Mrs. Mesina, whose name again appears therein as Felicisima M. Melencio, in favor
of complainants wherein the purchase price was also indicated to be P85,400.00.
After liquidating the advances made by the Chua spouses in the redemption of
the MESINA properties, Mrs. Mesina was found to have an existing balance due the
spouses in the amount of P400,000.00, on account of which they advised respondent
about it. Respondent, by Affidavit of February 18, 1986, acknowledged such obligation
to be his and undertook to settle it within two years.
Complainants were subsequently issued on January 21, 1986 a title over the
Melencio property.
Not long after the execution of the February 9, 1979 Deed of Absolute Sale or in
February 1986, one Juanito Tecson (Tecson) filed an Affidavit[5]dated February 20, 1986
before the Cabanatuan City Prosecutors Office charging respondents mother, the
spouses Chua, Marcelina Hsia and the two witnesses to the said Deed of Absolute Sale,
for Falsification of Public Document and violation of the Internal Revenue Code. In his
complaint affidavit, Tecson alleged that he was also a lessee of the Melencio property
and was, along with the Chua spouses, supposed to purchase it but that contrary to their
agreement, the property was sold only to complainant and her co-complainant, to his
exclusion. Tecson went on to relate that the February 9, 1979 Deed of Absolute Sale
did not reflect the true value of the Melencio property and was antedated to evade
payment of capital gains tax.
Tecson submitted documents showing that indeed the July 9, 1979 Deed of
Absolute Sale was antedated.
Respondent thereupon hatched a plan to dodge the falsification charge against
Mrs. Mesina et al. He proposed to complainants that they would simulate a deed of sale
of the Melencio property wherein complainants would resell it to Mrs. Mesina.
Heeding the proposal of respondent, complainants executed a Deed of Absolute
Sale dated April 1, 1986[6] conveying to Felicisima M. Melencio the Melencio property
for P85,400.00.
A new title was accordingly issued on April 4, 1986 in the name of Felicisima M.
Melencio, the owners copy of which was entrusted to complainants.
Tecson subsequently filed before the Cabanatuan City Prosecutors Office an
Affidavit of Desistance dated September 5, 1986[7] alleging that his filing of the criminal
complaint arose out of mere misunderstanding and difference with herein complainants
and their co-respondents and he had no sufficient evidence against them.
Some years later or on May 2, 1990, respondent approached complainants and
told them that he would borrow the owners copy of Mrs. Mesinas title with the
undertaking that he would, in four months, let Mrs. Mesina execute a deed of sale over
the Melencio property in complainants favor. In fact, respondent gave complainants a
written undertaking[8] dated May 2, 1990 reading:
Received the owners duplicate copy of TCT No. 4383 issued by the Register of Deeds,
Cabanatuan City registered in the name of Felicisima Mesina, widow, consisting of
about 854 square meters more or less located at calle Melencio, Cabanatuan City from
Mrs. Ana Chua and Marcelina Hsia.
I promise to and undertake to have the Deed of Sale of the above-
mentioned property in favor of Ana
Chua and Marcelina Hsia to be signed by Mrs. Felicisima Mesina, within four (4) month
s from date hereof so that the above-mentioned property and title maybe transferred in
the name of Ana Chua and Macelina Hsia. (Underscoring supplied)
In the meantime, Mrs. Mesina died in the early part of 1991.
Despite respondents repeated promises to effect the transfer of title in
complainants name, he failed to do so. Complainants were later informed that the
Melencio property was being offered for sale to the public.
The spouses Chua and complainant Marcelina Hsia thus filed on August 24,
1992 a Complaint[9] against respondent and his two siblings before the Regional Trial
Court (RTC) of Nueva Ecija in Cabanatuan City, for Declaration of Nullity of Sale and
Reconveyance of Real Property.
As of the time of the filing of the present administrative complaint in 1998, the
civil case against the Mesina siblings was still pending.
This Court, by Resolution of July 13, 1998,[10] directed respondent to file
Comment on the complaint within ten days.
By Resolution of December 2, 1998,[11] this Court, noting that the copy of the
Resolution of July 13, 1998 requiring respondent to comment on the complaint sent to
him at his office address at S. M. Mesina Law Office, 30 Jupiter St., Paseo de Roxas,
Bel-Air Subd., Makati City was returned unserved with the notation Moved, considered
the Resolution of July 13, 1998 served on respondent by substituted service pursuant
to Rule 13, Section 8 of the 1997 Rules of Civil Procedure. Respondent was accordingly
deemed to have waived the filing of the required comment.
By the same Resolution of December 2, 1998, the case was referred to the
Integrated Bar of the Philippines (IBP) for investigation, report and recommendation
within ninety days.
The IBP, acting on the complaint, issued a notice of hearing on September 14,
2001,[12] copy of which was sent to respondent at his office address via registered mail,
covered by Registry Receipt No. 2605 of the Meralco Post Office.[13] On the scheduled
date of hearing, complainants personally appeared with their counsel. Respondent failed
to show up.
Given the length of time that the case remained pending from its filing, the IBP
Commission on Bar Discipline, by Order of October 12, 2001,[14]directed complainants
to just file their position paper with affidavits and supporting documents in lieu of actual
presentation of witnesses and to serve a copy thereof to respondent at his last known
address.
In compliance with the IBP Order, complainants filed on April 1, 2002 their
position paper,[15] annexed to which were photocopies of: 1) a May 5, 1993
Certification[16] issued by the Metrobank Cabanatuan Branch certifying that it issued the
demand drafts to the payees enumerated below, which were debited from the account
of Mr. Chua Yap An under Savings Account No. 760:
D/D No. Payee Amount Date of Issue
214597 Planters Dev. Bank P 805,299.54 12-19-85
214760 Planters Dev. Bank 100,000.00 01-14-86
214761 Atty. Simeon Mesina, Jr. 77,826.10 01-14-86;
2) Affidavit dated February 18, 1986[17] of respondent acknowledging a debt
of P400,000.00 to complainant Ana Alvaran Chua and promising to pay interest thereon
within 2 years to commence upon the signing thereof [February 16, 1998] and, in the
event no partial or full payment of the principal is made within 2 years, Ana Alvaran Chua
is under no obligation to pay any lease rentals over the lot situated in Burgos Avenue,
Cabanatuan City where the Oceanic Hardware Bldg. is erected; 3) Deed of Absolute no presumption of innocence or improbability of wrongdoing is considered in an
Sale dated January 19, 1985[18] and 4) Deed of Absolute Sale dated July 9, 1979,[19] both attorneys favor.35 (Underscoring supplied)
executed by Felicisima M. Melencio in favor of complainant; 5) TCT No. T-
48114[20] issued by the Cabanatuan City in the name of complainants on January 21,
Respondent having welched on his promise to cause the reconveyance of the
1986; 6) Affidavit of Juanito C. Tecson[21] dated January 20, 1986 charging complainants
Melencio property to complainants, consideration of whether he should be ordered to
et al. for Falsification of Public Documents; 7) Deed of Absolute Sale dated April 1, 1986
honor such promise should be taken up in the civil case filed for the purpose, the issue
executed by complainants in favor of Mrs. Mesina;[22] and 8) TCT No. T-48383issued on
there being one of ownership while that in the case at bar is moral fitness.37
April 4, 1986 in the name of Felicisima M. Melencio;[23] and 9) Complaint of spouses
Chua Yap An and Ana Alvaran Chua and Marcelina Hsia, for Declaration of Nullity of In fine, respondent violated his oath of office and, more specifically, the following
Deed of Sale and Reconveyance of Real Property against respondent and his two canons of the Code of Professional Responsibility:
siblings.[24]

A copy of complainants position paper was sent on March 18, 2002 to CANON 1. A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS
respondent at his office address by registered mail covered by Registry Receipt No. OF THE LAND AND PROMOTE RESPECT FOR LAW AND LEGAL PROCESSES.
5278.[25] There is no showing if respondent received this mail matter.

The IBP once more scheduled, by notice of December 13, 2002,[26] a hearing of Rule 1.01. - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful
the administrative case to January 15, 2003, copy of which notice was sent to conduct.
respondent at his office address by registered mail covered by Registry Receipt No.
2953 issued by the Meralco Post Office.[27] Rule 1.02. - A lawyer shall not counsel or abet activities aimed at defiance of the law or
at lessening confidence in the legal system.
On the scheduled hearing on January 15, 2003, the IBP Investigating
Commissioner, by Order of even date,[28] noted the presence of complainants, and the
absence of respondent, copy of the notice of hearing to whom was returned unserved CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND
with the notation RTS-Moved. The case was thereupon deemed submitted for report DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE
and recommendation. INTEGRATED BAR.
On June 21, 2003, the IBP passed Resolution No. XV-2003-342[29] adopting and
approving the report and recommendation of Atty. Rebecca Villanueva-Maala, the Rule 7.03. - A lawyer shall not engage in conduct that adversely reflects on his fitness
Investigating Commissioner of the case. to practice law, nor shall he, whether in public or private life, behave in a scandalous
manner to the discredit of the legal profession.
In her March 3, 2003 Report and Recommendation,[30] Investigation
Commissioner Maala observed as follows:
CANON 15. A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND LOYALTY IN
ALL HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENTS.
A lawyer should not engage or participate on any unlawful, dishonest, immoral or
deceitful conduct. The moral character he displayed when he applied for admission at
Rule 15.07. - A lawyer shall impress upon his client compliance with the laws and the
the Bar must be maintained incessantly. Otherwise, his privilege to practice the legal
principles of fairness.
profession may be withdrawn from him (Rule 1.01, Code of Professional
Responsibility). On the basis of the uncontroverted facts and evidence
presented, respondent CANON 17. A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE
Atty. Simeon M. Mesina has committed gross misconduct which shows him to be unfit SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM.
for the office and unworthy of the privilege which his license and law confer upon him,
WHEREFORE, respondent ATTY. SIMEON M. MESINA, JR. is, for gross
and recommended that respondent be suspended for a period of One (1) Year. misconduct, hereby DISBARRED.
This Court finds that indeed, respondent is guilty of gross misconduct. Let copies of this Decision be furnished all courts, the Integrated Bar of the
Philippines, and the Office of the Bar Confidant.
First, by advising complainants to execute another Deed of Absolute Sale
antedated to 1979 to evade payment of capital gains taxes, he violated his duty to SO ORDERED.
promote respect for law and legal processes,28 and not to abet activities aimed at
defiance of the law;29 That respondent intended to, as he did defraud not a private party
but the government is aggravating.30

Second, when respondent convinced complainants to execute another

document, a simulated Deed of Absolute Sale wherein they made it appear that
complainants reconveyed the Melencio property to his mother, he committed
dishonesty.31

Third, when on May 2, 1990 respondent inveigled his own clients, the Chua
spouses, into turning over to him the owners copy of his mothers title upon the
misrepresentation that he would, in four months, have a deed of sale executed by his
mother in favor of complainants, he likewise committed dishonesty.

That the signature of Felicisima M. Melencio in the 1985 document32 and that in
the 1979 document33 are markedly different is in fact is a badge of falsification of either
the 1979 or the 1985 document or even both.

A propos is this Courts following pronouncement in Nakpil v. Valdez34

As a rule, a lawyer is not barred from dealing with his client

but the business transaction must be characterized with utmost honesty and good faith
. The measure ofgood faith which an attorney is required to exercise in his dealings wit
h his client is a much higher standard that is required in business dealings where the p
arties tradeat arms length. Business transactions between an attorney and his client
are disfavored and discouraged by the policy of the law. Hence, courts carefully watch
these transactions to assure that no advantage is taken by a lawyer over his
client. This rule is founded on public policy for, by virtue of his office, an attorney is in
an easy position to take advantage of the credulity and ignorance of his client. Thus,
G.R. No. 80718 January 29, 1988
FELIZA P. DE ROY and VIRGILIO RAMOS, petitioners, vs.
COURT OF APPEALS and LUIS BERNAL, SR., GLENIA BERNAL, LUIS
BERNAL, JR., HEIRS OF MARISSA BERNAL, namely, GLICERIA DELA
CRUZ BERNAL and LUIS BERNAL, SR., respondents.
RESOLUTION
CORTES, J.:
This special civil action for certiorari seeks to declare null and void two (2)
resolutions of the Special First Division of the Court of Appeals in the case of
Luis Bernal, Sr., et al. v. Felisa Perdosa De Roy, et al., CA-G.R. CV No.
07286. The first resolution promulgated on 30 September 1987 denied
petitioners' motion for extension of time to file a motion for reconsideration
and directed entry of judgment since the decision in said case had become
final; and the second Resolution dated 27 October 1987 denied petitioners'
motion for reconsideration for having been filed out of time.
At the outset, this Court could have denied the petition outright for not being
verified as required by Rule 65 section 1 of the Rules of Court. However,
even if the instant petition did not suffer from this defect, this Court, on
procedural and substantive grounds, would still resolve to deny it.
The facts of the case are undisputed. The firewall of a burned-out building
owned by petitioners collapsed and destroyed the tailoring shop occupied by
the family of private respondents, resulting in injuries to private respondents
and the death of Marissa Bernal, a daughter. Private respondents had been
warned by petitioners to vacate their shop in view of its proximity to the
weakened wall but the former failed to do so. On the basis of the foregoing
facts, the Regional Trial Court. First Judicial Region, Branch XXXVIII,
presided by the Hon. Antonio M. Belen, rendered judgment finding
petitioners guilty of gross negligence and awarding damages to private
respondents. On appeal, the decision of the trial court was affirmed in toto by
the Court of Appeals in a decision promulgated on August 17, 1987, a copy
of which was received by petitioners on August 25, 1987. On September 9,
1987, the last day of the fifteen-day period to file an appeal, petitioners filed a
motion for extension of time to file a motion for reconsideration, which was
eventually denied by the appellate court in the Resolution of September 30,
1987. Petitioners filed their motion for reconsideration on September 24,
1987 but this was denied in the Resolution of October 27, 1987.
This Court finds that the Court of Appeals did not commit a grave abuse of
discretion when it denied petitioners' motion for extension of time to file a
motion for reconsideration, directed entry of judgment and denied their
motion for reconsideration. It correctly applied the rule laid down
in Habaluyas Enterprises, Inc. v. Japzon, [G.R. No. 70895, August 5,
1985,138 SCRA 461, that the fifteen-day period for appealing or for filing a
motion for reconsideration cannot be extended. In its Resolution denying the
motion for reconsideration, promulgated on July 30, 1986 (142 SCRA 208),
this Court en banc restated and clarified the rule, to wit:
Beginning one month after the promulgation of this Resolution, the rule shall
be strictly enforced that no motion for extension of time to file a motion for
reconsideration may be filed with the Metropolitan or Municipal Trial Courts,
the Regional Trial Courts, and the Intermediate Appellate Court. Such a
motion may be filed only in cases pending with the Supreme Court as the
court of last resort, which may in its sound discretion either grant or deny the
extension requested. (at p. 212)
Lacsamana v. Second Special Cases Division of the intermediate Appellate
Court, [G.R. No. 73146-53, August 26, 1986, 143 SCRA 643], reiterated the
rule and went further to restate and clarify the modes and periods of appeal.
Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 15,
1986,144 SCRA 161],stressed the prospective application of said rule, and
explained the operation of the grace period, to wit:
In other words, there is a one-month grace period from the
promulgation on May 30, 1986 of the Court's Resolution in the
clarificatory Habaluyas case, or up to June 30, 1986, within which
the rule barring extensions of time to file motions for new trial or
reconsideration is, as yet, not strictly enforceable.
Since petitioners herein filed their motion for extension on
February 27, 1986, it is still within the grace period, which expired
on June 30, 1986, and may still be allowed.
This grace period was also applied in Mission v. Intermediate Appellate
Court [G.R. No. 73669, October 28, 1986, 145 SCRA 306].]
In the instant case, however, petitioners' motion for extension of time was
filed on September 9, 1987, more than a year after the expiration of the
grace period on June 30, 1986. Hence, it is no longer within the coverage of
the grace period. Considering the length of time from the expiration of the
grace period to the promulgation of the decision of the Court of Appeals on
August 25, 1987, petitioners cannot seek refuge in the ignorance of their
counsel regarding said rule for their failure to file a motion for reconsideration
within the reglementary period.
Petitioners contend that the rule enunciated in the Habaluyas case should
not be made to apply to the case at bar owing to the non-publication of
the Habaluyas decision in the Official Gazette as of the time the subject
decision of the Court of Appeals was promulgated. Contrary to petitioners'
view, there is no law requiring the publication of Supreme Court decisions in
the Official Gazette before they can be binding and as a condition to their
becoming effective. It is the bounden duty of counsel as lawyer in active law
practice to keep abreast of decisions of the Supreme Court particularly
where issues have been clarified, consistently reiterated, and published in
the advance reports of Supreme Court decisions (G. R. s) and in such
publications as the Supreme Court Reports Annotated (SCRA) and law
journals.
This Court likewise finds that the Court of Appeals committed no grave
abuse of discretion in affirming the trial court's decision holding petitioner
liable under Article 2190 of the Civil Code, which provides that "the proprietor
of a building or structure is responsible for the damage resulting from its total
or partial collapse, if it should be due to the lack of necessary repairs.
Nor was there error in rejecting petitioners argument that private respondents
had the "last clear chance" to avoid the accident if only they heeded the.
warning to vacate the tailoring shop and , therefore, petitioners prior
negligence should be disregarded, since the doctrine of "last clear chance,"
which has been applied to vehicular accidents, is inapplicable to this case.
WHEREFORE, in view of the foregoing, the Court Resolved to DENY the
instant petition for lack of merit.
Fernan (Chairman), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.
.