Cases 11-25-2013
Cases 11-25-2013
SUPREME COURT
Manila
FIRST DIVISION
A.C. No. 5281
signatures had likewise been forged and merely copied from their respective
voters affidavits.
Complainant further asserted that no copy of such purported will was on file in
the archives division of the Records Management and Archives Office of the
National Commission for Culture and the Arts (NCCA). In this connection, the
certification of the chief of the archives division dated September 19, 1999
stated:
Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT
executed by BARTOLOME RAMIREZ on June 30, 1965 and is available in
this Office[s] files.6
Respondent in his comment dated July 6, 2001 claimed that the complaint
against him contained false allegations: (1) that complainant was a son of the
decedent Vicente Lee, Sr. and (2) that the will in question was fake and
spurious. He alleged that complainant was "not a legitimate son of Vicente Lee,
Sr. and the last will and testament was validly executed and actually notarized
by respondent per affidavit7 of Gloria Nebato, common-law wife of Vicente Lee,
Sr. and corroborated by the joint affidavit8 of the children of Vicente Lee, Sr.,
namely Elena N. Lee and Vicente N. Lee, Jr. xxx."9
Respondent further stated that the complaint was filed simply to harass him
because the criminal case filed by complainant against him in the Office of the
Ombudsman "did not prosper."
Respondent did not dispute complainants contention that no copy of the will
was on file in the archives division of the NCCA. He claimed that no copy of the
contested will could be found there because none was filed.
Lastly, respondent pointed out that complainant had no valid cause of action
against him as he (complainant) did not first file an action for the declaration of
nullity of the will and demand his share in the inheritance.
In a resolution dated October 17, 2001, the Court referred the case to the
Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation.10
In his report, the investigating commissioner found respondent guilty of
violation of pertinent provisions of the old Notarial Law as found in the Revised
Administrative Code. The violation constituted an infringement of legal ethics,
The Civil Code likewise requires that a will must be acknowledged before a
notary public by the testator and the witnesses. 19 The importance of this
requirement is highlighted by the fact that it was segregated from the other
requirements under Article 805 and embodied in a distinct and separate
provision.20
An acknowledgment is the act of one who has executed a deed in going before
some competent officer or court and declaring it to be his act or deed. It
involves an extra step undertaken whereby the signatory actually declares to
the notary public that the same is his or her own free act and deed. 21 The
acknowledgment in a notarial will has a two-fold purpose: (1) to safeguard the
testators wishes long after his demise and (2) to assure that his estate is
administered in the manner that he intends it to be done.
A cursory examination of the acknowledgment of the will in question shows
that this particular requirement was neither strictly nor substantially complied
with. For one, there was the conspicuous absence of a notation of the residence
certificates of the notarial witnesses Noynay and Grajo in the acknowledgment.
Similarly, the notation of the testators old residence certificate in the same
acknowledgment was a clear breach of the law. These omissions by respondent
invalidated the will.
As the acknowledging officer of the contested will, respondent was required to
faithfully observe the formalities of a will and those of notarization. As we held
in Santiago v. Rafanan:22
The Notarial Law is explicit on the obligations and duties of notaries
public. They are required to certify that the party to every document
acknowledged before him had presented the proper residence certificate
(or exemption from the residence tax); and to enter its number, place of
issue and date as part of such certification.
These formalities are mandatory and cannot be disregarded, considering the
degree of importance and evidentiary weight attached to notarized
documents.23 A notary public, especially a lawyer,24 is bound to strictly observe
these elementary requirements.
The Notarial Law then in force required the exhibition of the residence
certificate upon notarization of a document or instrument:
Defects in the observance of the solemnities prescribed by law render the entire
will invalid. This carelessness cannot be taken lightly in view of the importance
and delicate nature of a will, considering that the testator and the witnesses,
as in this case, are no longer alive to identify the instrument and to confirm its
contents.34 Accordingly, respondent must be held accountable for his acts. The
validity of the will was seriously compromised as a consequence of his breach
of duty.35
In this connection, Section 249 of the old Notarial Law provided:
Grounds for revocation of commission. The following derelictions of
duty on the part of a notary public shall, in the discretion of the proper
judge of first instance, be sufficient ground for the revocation of his
commission:
xxx
xxx
xxx
(b) The failure of the notary to make the proper entry or entries in his
notarial register touching his notarial acts in the manner required by law.
xxx
xxx
xxx
(f) The failure of the notary to make the proper notation regarding cedula
certificates.36
These gross violations of the law also made respondent liable for violation of his
oath as a lawyer and constituted transgressions of Section 20 (a), Rule 138 of
the Rules of Court37 and Canon 138 and Rule 1.0139 of the CPR.
The first and foremost duty of a lawyer is to maintain allegiance to the Republic
of the Philippines, uphold the Constitution and obey the laws of the land.40 For
a lawyer is the servant of the law and belongs to a profession to which society
has entrusted the administration of law and the dispensation of justice. 41
While the duty to uphold the Constitution and obey the law is an obligation
imposed on every citizen, a lawyer assumes responsibilities well beyond the
basic requirements of good citizenship. As a servant of the law, a lawyer should
moreover make himself an example for others to emulate.42 Being a lawyer, he
is supposed to be a model in the community in so far as respect for the law is
concerned.43
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.C. No. 5439
In a minute Resolution 5 passed on May 26, 2006, the IBP Board of Governors
adopted and approved the report and recommendation of Commissioner Reyes
but increased the penalty of suspension from six months to one year.
We adopt the report of the IBP Board of Governors except as to the issue on
immorality and as to the recommended penalty.
On serving as counsel for contending parties.
Records show that in Civil Case No. 95-105-MK, filed in the Regional Trial
Court (RTC), Branch 272, Marikina City, entitled "Leonora M. Aville v. Editha
Valdez" for nonpayment of rentals, herein respondent, while being the counsel
for defendant Valdez, also acted as counsel for the tenants Lagmay, Valencia,
Bustamante and Bayuga 6 by filing an Explanation and Compliance before the
RTC. 7
In Civil Case No. 98-6804 filed in the Metropolitan Trial Court (MTC), Branch
75, Marikina City, entitled "Editha S. Valdez and Joseph J. Alba, Jr. v. Salve
Bustamante and her husband" for ejectment, respondent represented Valdez
against Bustamante - one of the tenants in the property subject of the
controversy. Defendants appealed to the RTC, Branch 272, Marikina City
docketed as SCA Case No. 99-341-MK. In his decision dated May 2,
2000,8 Presiding Judge Reuben P. dela Cruz 9 warned respondent to refrain
from repeating the act of being counsel of record of both parties in Civil Case
No. 95-105-MK.
But in Civil Case No. 2000-657-MK, filed in the RTC, Branch 273, Marikina
City, entitled "Editha S. Valdez v. Joseph J. Alba, Jr. and Register of Deeds of
Marikina City," respondent, as counsel for Valdez, filed a Complaint for
Rescission of Contract with Damages and Cancellation of Transfer Certificate of
Title No. 275500 against Alba, respondent's former client in Civil Case No. 986804 and SCA Case No. 99-341-MK.
Records further reveal that at the hearing of November 14, 2003, respondent
admitted that in Civil Case No. 95-105-MK, he was the lawyer for Lagmay (one
of the tenants) but not for Bustamante and Bayuga 10 albeit he filed the
Explanation and Compliance for and in behalf of the tenants. 11 Respondent
also admitted that he represented Valdez in Civil Case No. 98-6804 and SCA
Case No. 99-341-MK against Bustamante and her husband but denied being
the counsel for Alba although the case is entitled "Valdez and Alba v.
Bustamante and her husband," because Valdez told him to include Alba as the
two were the owners of the property 12 and it was only Valdez who signed the
complaint for ejectment. 13 But, while claiming that respondent did not
represent Alba, respondent, however, avers that he already severed his
representation for Alba when the latter charged respondent with
estafa. 14 Thus, the filing of Civil Case No. 2000-657-MK against Alba.
Rule 15.03, Canon 15 of the Code of Professional Responsibility provides that a
lawyer shall not represent conflicting interests except by written consent of all
concerned given after a full disclosure of the facts.
A lawyer may not, without being guilty of professional misconduct, act as
counsel for a person whose interest conflicts with that of his present or former
client. 15 He may not also undertake to discharge conflicting duties any more
than he may represent antagonistic interests. This stern rule is founded on the
principles of public policy and good taste. 16 It springs from the relation of
attorney and client which is one of trust and confidence. Lawyers are expected
not only to keep inviolate the client's confidence, but also to avoid the
appearance of treachery and double-dealing for only then can litigants be
encouraged to entrust their secrets to their lawyers, which is of paramount
importance in the administration of justice. 17
One of the tests of inconsistency of interests is whether the acceptance of a new
relation would prevent the full discharge of the lawyer's duty of undivided
fidelity and loyalty to the client or invite suspicion of unfaithfulness or doubledealing in the performance of that duty. 18
The stern rule against representation of conflicting interests is founded on
principles of public policy and good taste. It springs from the attorney's duty to
represent his client with undivided fidelity and to maintain inviolate the client's
confidence as well as from the injunction forbidding the examination of an
attorney as to any of the privileged communications of his client. 19
An attorney owes loyalty to his client not only in the case in which he has
represented him but also after the relation of attorney and client has
terminated. 20 The bare attorney-client relationship with a client precludes an
attorney from accepting professional employment from the client's adversary
either in the same case 21 or in a different but related action. 22 A lawyer is
forbidden from representing a subsequent client against a former client when
the subject matter of the present controversy is related, directly or indirectly, to
the subject matter of the previous litigation in which he appeared for the
former client. 23
We held in Nombrado v. Hernandez 24 that the termination of the relation of
attorney and client provides no justification for a lawyer to represent an interest
adverse to or in conflict with that of the former client. The reason for the rule is
that the client's confidence once reposed cannot be divested by the expiration
of the professional employment. 25 Consequently, a lawyer should not, even
after the severance of the relation with his client, do anything which will
injuriously affect his former client in any matter in which he previously
represented him nor should he disclose or use any of the client's confidences
acquired in the previous relation. 26
In this case, respondent's averment that his relationship with Alba has long
been severed by the act of the latter of not turning over the proceeds collected
in Civil Case No. 98-6804, in connivance with the complainant, is unavailing.
Termination of the attorney-client relationship precludes an attorney from
representing a new client whose interest is adverse to his former client. Alba
may not be his original client but the fact that he filed a case entitled
"Valdez and Alba v. Bustamante and her husband," is a clear indication that
respondent is protecting the interests of both Valdez and Alba in the said case.
Respondent cannot just claim that the lawyer-client relationship between him
and Alba has long been severed without observing Section 26, Rule 138 of the
Rules of Court wherein the written consent of his client is required.
In Gonzales v. Cabucana, Jr.,
held that:
27
28
we
Upon examination of the record, it was noted that Civil Case No. 2000-657-MK
for rescission of contract and cancellation of TCT No. 275500 was also filed on
November 27, 2000, 35 before RTC, Branch 273, Marikina City, thus belying the
averment of respondent that he came to know of Alba's title only in 2002 when
the case for rescission was filed. It was revealed during the hearing before
Commissioner Raval that Civil Case Nos. 00-7137 and 2000-657-MK were filed
on the same date, although in different courts and at different times.
Hence, respondent cannot feign ignorance of the fact that the title he submitted
was already cancelled in lieu of a new title issued in the name of Alba in 1995
yet, as proof of the latter's ownership.
Respondent failed to comply with Canon 10 of the Code of Professional
Responsibility which provides that a lawyer shall not do any falsehood, nor
consent to the doing of any in court; nor shall he mislead, or allow the Court to
be mislead by any artifice. It matters not that the trial court was not misled by
respondent's submission of TCT No. 273020 in the name of Valdez, as shown
by its decision dated January 8, 2002 36 dismissing the complaint for
ejectment. What is decisive in this case is respondent's intent in trying to
mislead the court by presenting TCT No. 273020 despite the fact that said title
was already cancelled and a new one, TCT No. 275500, was already issued in
the name of Alba.
In Young v. Batuegas,37 we held that a lawyer must be a disciple of truth. He
swore upon his admission to the Bar that he will "do no falsehood nor consent
to the doing of any in court" and he shall "conduct himself as a lawyer
according to the best of his knowledge and discretion with all good fidelity as
well to the courts as to his clients." 38He should bear in mind that as an officer
of the court his high vocation is to correctly inform the court upon the law and
the facts of the case and to aid it in doing justice and arriving at correct
conclusion. 39 The courts, on the other hand, are entitled to expect only
complete honesty from lawyers appearing and pleading before them. While a
lawyer has the solemn duty to defend his client's rights and is expected to
display the utmost zeal in defense of his client's cause, his conduct must never
be at the expense of truth.
A lawyer is the servant of the law and belongs to a profession to which society
has entrusted the administration of law and the dispensation of justice. 40 As
such, he should make himself more an exemplar for others to emulate. 41
>On initiating numerous cases in exchange for nonpayment of rental fees.
Complainant alleges that respondent filed the following cases: (a) Civil Case No.
2000-657-MK at the RTC, Branch 272; (b) Civil Case No. 00-7137 at the MTC,
Branch 75; and (c) I.S. Nos. 00-4439 and 01-036162 both entitled "Valencia v.
Samala" for estafa and grave coercion, respectively, before the Marikina City
Prosecutor. Complainant claims that the two criminal cases were filed in
retaliation for the cases she filed against Lagmay docketed as I.S. No. 00-4306
for estafa and I.S. No. 00-4318 against Alvin Valencia (son of respondent) for
trespass to dwelling.
As culled from the records, Valdez entered into a retainer agreement with
respondent. As payment for his services, he was allowed to occupy the property
for free and utilize the same as his office pursuant to their retainer
agreement. 42
Respondent filed I.S. Nos. 00-4439 43 and 01-036162 44 both entitled "Valencia
v. Samala" for estafa and grave coercion, respectively, to protect his client's
rights against complainant who filed I.S. No. 00-4306 45 for estafa against
Lagmay, and I.S. No. 00-4318 46 against Alvin Valencia 47 for trespass to
dwelling.
We find the charge to be without sufficient basis. The act of respondent of filing
the aforecited cases to protect the interest of his client, on one hand, and his
own interest, on the other, cannot be made the basis of an administrative
charge unless it can be clearly shown that the same was being done to abuse
judicial processes to commit injustice.
The filing of an administrative case against respondent for protecting the
interest of his client and his own right would be putting a burden on a
practicing lawyer who is obligated to defend and prosecute the right of his
client.
On having a reputation for being immoral by siring illegitimate children.
We find respondent liable for being immoral by siring illegitimate children.
During the hearing, respondent admitted that he sired three children by
Teresita Lagmay who are all over 20 years of age, 48 while his first wife was still
alive. He also admitted that he has eight children by his first wife, the youngest
of whom is over 20 years of age, and after his wife died in 1997, he married
Lagmay in 1998. 49Respondent further admitted that Lagmay was staying in
one of the apartments being claimed by complainant. However, he does not
consider his affair with Lagmay as a relationship 50 and does not consider the
latter as his second family. 51 He reasoned that he was not staying with Lagmay
because he has two houses, one in Muntinlupa and another in Marikina. 52
In this case, the admissions made by respondent are more than enough to hold
him liable on the charge of immorality. During the hearing, respondent did not
show any remorse. He even justified his transgression by saying that he does
not have any relationship with Lagmay and despite the fact that he sired three
children by the latter, he does not consider them as his second family. It is
noted that during the hearing, respondent boasts in telling the commissioner
that he has two houses - in Muntinlupa, where his first wife lived, and in
Marikina, where Lagmay lives. 53 It is of no moment that respondent eventually
married Lagmay after the death of his first wife. The fact still remains that
respondent did not live up to the exacting standard of morality and decorum
required of the legal profession.
Under Canon 1, Rule 1.01 of the Code of Professional Responsibility, a lawyer
shall not engage in unlawful, dishonest, immoral or deceitful conduct. It may
be difficult to specify the degree of moral delinquency that may qualify an act
as immoral, yet, for purposes of disciplining a lawyer, immoral conduct has
been defined as that "conduct which is willful, flagrant, or shameless, and
which shows a moral indifference to the opinion of respectable members of the
community. 54 Thus, in several cases, the Court did not hesitate to discipline a
lawyer for keeping a mistress in defiance of the mores and sense of morality of
the community. 55 That respondent subsequently married Lagmay in 1998 after
the death of his wife and that this is his first infraction as regards immorality
serve to mitigate his liability.
ACCORDINGLY, the Court finds respondent Atty. Luciano D.
Valencia GUILTY of misconduct and violation of Canons 21, 10 and 1 of the
Code of Professional Responsibility. He is SUSPENDED from the practice of law
for three (3) years, effective immediately upon receipt of herein Resolution.
Let copies of this Resolution be furnished all courts of the land, the Integrated
Bar of the Philippines as well as the Office of the Bar Confidant for their
information and guidance, and let it be entered in respondent's personal
records.
SO ORDERED.
his last point, furthermore, I expect that you will have great difficulty in
proving that the real purchaser was other than Mr. Assad, considering
that death has already sealed your husband's lips and he cannot now
testify as to the circumstances of the sale.
For the foregoing reasons, I regret to advise you that I cannot appear in
the proceedings in your behalf. The records of the case you loaned to me
are herewith returned.
Yours very truly,
(Sgd.) VICENTE J. FRANCISCO
VJF/Rag.
In his answer to plaintiff's attorneys' complaint, Attorney Francisco alleged that
about May, 1945, a real estate broker came to his office in connection with the
legal separation of a woman who had been deserted by her husband, and also
told him (Francisco) that there was a pending suit brought by Mrs. Hilado
against a certain Syrian to annul the sale of a real estate which the deceased
Serafin Hilado had made to the Syrian during the Japanese occupation; that
this woman asked him if he was willing to accept the case if the Syrian should
give it to him; that he told the woman that the sales of real property during the
Japanese regime were valid even though it was paid for in Japanese military
notes; that this being his opinion, he told his visitor he would have no objection
to defending the Syrian;
That one month afterwards, Mrs. Hilado came to see him about a suit she had
instituted against a certain Syrian to annul the conveyance of a real estate
which her husband had made; that according to her the case was in the hands
of Attorneys Delgado and Dizon, but she wanted to take it away from them;
that as he had known the plaintiff's deceased husband he did not hesitate to
tell her frankly that hers was a lost case for the same reason he had told the
broker; that Mrs. Hilado retorted that the basis of her action was not that the
money paid her husband was Japanese military notes, but that the premises
were her private and exclusive property; that she requested him to read the
complaint to be convinced that this was the theory of her suit; that he then
asked Mrs. Hilado if there was a Torrens title to the property and she answered
yes, in the name of her husband; that he told Mrs. Hilado that if the property
was registered in her husband's favor, her case would not prosper either;
That some days afterward, upon arrival at his law office on Estrada street, he
was informed by Attorney Federico Agrava, his assistant, that Mrs. Hilado had
dropped in looking for him and that when he, Agrava, learned that Mrs.
Hilado's visit concerned legal matters he attended to her and requested her to
leave the "expediente" which she was carrying, and she did; that he told
Attorney Agrava that the firm should not handle Mrs. Hilado's case and he
should return the papers, calling Agrava's attention to what he (Francisco)
already had said to Mrs. Hilado;
That several days later, the stenographer in his law office, Teofilo Ragodon,
showed him a letter which had been dictated in English by Mr. Agrava,
returning the "expedients" to Mrs. Hilado; that Ragodon told him (Attorney
Francisco) upon Attorney Agrava's request that Agrava thought it more proper
to explain to Mrs. Hilado the reasons why her case was rejected; that he
forthwith signed the letter without reading it and without keeping it for a
minute in his possession; that he never saw Mrs. Hilado since their last
meeting until she talked to him at the Manila Hotel about a proposed
extrajudicial settlement of the case;
That in January, 1946, Assad was in his office to request him to handle his
case stating that his American lawyer had gone to the States and left the case
in the hands of other attorneys; that he accepted the retainer and on January
28, 1946, entered his appearance.
Attorney Francisco filed an affidavit of stenographer Ragodon in corroboration
of his answer.
The judge trying the case, Honorable Jose Gutierrez David, later promoted to
the Court of Appeals, dismissed the complaint. His Honor believed that no
information other than that already alleged in plaintiff's complaint in the main
cause was conveyed to Attorney Francisco, and concluded that the intercourse
between the plaintiff and the respondent did not attain the point of creating the
relation of attorney and client.
Stripped of disputed details and collateral matters, this much is undoubted:
That Attorney Francisco's law firm mailed to the plaintiff a written opinion over
his signature on the merits of her case; that this opinion was reached on the
basis of papers she had submitted at his office; that Mrs. Hilado's purpose in
submitting those papers was to secure Attorney Francisco's professional
services. Granting the facts to be no more than these, we agree with
petitioner's counsel that the relation of attorney and client between Attorney
Francisco and Mrs. Hilado ensued. The following rules accord with the ethics of
the legal profession and meet with our approval:
In order to constitute the relation (of attorney and client) a professional
one and not merely one of principal and agent, the attorneys must be
employed either to give advice upon a legal point, to prosecute or defend
an action in court of justice, or to prepare and draft, in legal form such
papers as deeds, bills, contracts and the like. (Atkinson vs. Howlett, 11
Ky. Law Rep. (abstract), 364; cited in Vol. 88, A. L. R., p. 6.)
To constitute professional employment it is not essential that the client
should have employed the attorney professionally on any previous
occasion. . . . It is not necessary that any retainer should have been paid,
promised, or charged for; neither is it material that the attorney
consulted did not afterward undertake the case about which the
consultation was had. If a person, in respect to his business affairs or
troubles of any kind, consults with his attorney in his professional
capacity with the view to obtaining professional advice or assistance, and
the attorney voluntarily permits or acquiesces in such consultation, then
the professional employment must be regarded as established. . . . (5
Jones Commentaries on Evidence, pp. 4118-4119.)
An attorney is employed-that is, he is engaged in his professional
capacity as a lawyer or counselor-when he is listening to his client's
preliminary statement of his case, or when he is giving advice thereon,
just as truly as when he is drawing his client's pleadings, or advocating
his client's cause in open court. (Denver Tramway Co. vs. Owens, 20
Colo., 107; 36 P., 848.)
Formality is not an essential element of the employment of an attorney.
The contract may be express or implied and it is sufficient that the
advice and assistance of the attorney is sought and received, in matters
pertinent to his profession. An acceptance of the relation is implied on
the part of the attorney from his acting in behalf of his client in
pursuance of a request by the latter. (7 C. J. S., 848-849; see Hirach
Bros. and Co. vs. R. E. Kennington Co., 88 A. L. R., 1.)
Section 26 (e), Rule 123 of the Rules of Court provides that "an attorney
cannot, without the consent of his client, be examined as to any
communication made by the client to him, or his advice given thereon in the
course of professional employment;" and section 19 (e) of Rule 127 imposes
upon an attorney the duty "to maintain inviolate the confidence, and at every
peril to himself, to preserve the secrets of his client." There is no law or
provision in the Rules of Court prohibiting attorneys in express terms from
acting on behalf of both parties to a controversy whose interests are opposed to
each other, but such prohibition is necessarily implied in the injunctions above
quoted. (In re De la Rosa, 27 Phil., 258.) In fact the prohibition derives validity
from sources higher than written laws and rules. As has been aptly said in In
re Merron, 22 N. M., 252, L.R.A., 1917B, 378, "information so received is
sacred to the employment to which it pertains," and "to permit it to be used in
the interest of another, or, worse still, in the interest of the adverse party, is to
strike at the element of confidence which lies at the basis of, and affords the
essential security in, the relation of attorney and client."
That only copies of pleadings already filed in court were furnished to Attorney
Agrava and that, this being so, no secret communication was transmitted to
him by the plaintiff, would not vary the situation even if we should discard
Mrs. Hilado's statement that other papers, personal and private in character,
were turned in by her. Precedents are at hand to support the doctrine that the
mere relation of attorney and client ought to preclude the attorney from
accepting the opposite party's retainer in the same litigation regardless of what
information was received by him from his first client.
The principle which forbids an attorney who has been engaged to
represent a client from thereafter appearing on behalf of the client's
opponent applies equally even though during the continuance of the
employment nothing of a confidential nature was revealed to the attorney
by the client. (Christian vs. Waialua Agricultural Co., 30 Hawaii, 553,
Footnote 7, C. J. S., 828.)
Where it appeared that an attorney, representing one party in litigation,
had formerly represented the adverse party with respect to the same
matter involved in the litigation, the court need not inquire as to how
much knowledge the attorney acquired from his former during that
relationship, before refusing to permit the attorney to represent the
adverse party. (Brown vs. Miller, 52 App. D. C. 330; 286, F. 994.)
In order that a court may prevent an attorney from appearing against a
former client, it is unnecessary that the ascertain in detail the extent to
which the former client's affairs might have a bearing on the matters
Caesar's wife, not only to keep inviolate the client's confidence, but also to
avoid the appearance of treachery and double-dealing. Only thus can litigants
be encouraged to entrust their secrets to their attorneys which is of paramount
importance in the administration of justice.
So without impugning respondent's good faith, we nevertheless can not
sanction his taking up the cause of the adversary of the party who had sought
and obtained legal advice from his firm; this, not necessarily to prevent any
injustice to the plaintiff but to keep above reproach the honor and integrity of
the courts and of the bar. Without condemning the respondents conduct as
dishonest, corrupt, or fraudulent, we do believe that upon the admitted facts it
is highly in expedient. It had the tendency to bring the profession, of which he
is a distinguished member, "into public disrepute and suspicion and
undermine the integrity of justice."
There is in legal practice what called "retaining fee," the purpose of which
stems from the realization that the attorney is disabled from acting as counsel
for the other side after he has given professional advice to the opposite party,
even if he should decline to perform the contemplated services on behalf of the
latter. It is to prevent undue hardship on the attorney resulting from the rigid
observance of the rule that a separate and independent fee for consultation
and advice was conceived and authorized. "A retaining fee is a preliminary fee
given to an attorney or counsel to insure and secure his future services, and
induce him to act for the client. It is intended to remunerate counsel for being
deprived, by being retained by one party, of the opportunity of rendering
services to the other and of receiving pay from him, and the payment of such
fee, in the absence of an express understanding to the contrary, is neither
made nor received in payment of the services contemplated; its payment has no
relation to the obligation of the client to pay his attorney for the services which
he has retained him to perform." (7 C.J.S., 1019.)
The defense that Attorney Agrava wrote the letter Exhibit A and that Attorney
Francisco did not take the trouble of reading it, would not take the case out of
the interdiction. If this letter was written under the circumstances explained by
Attorney Francisco and he was unaware of its contents, the fact remains that
his firm did give Mrs. Hilado a formal professional advice from which, as
heretofore demonstrated, emerged the relation of attorney and client. This letter
binds and estop him in the same manner and to the same degree as if he
personally had written it. An information obtained from a client by a member
or assistant of a law firm is information imparted to the firm. (6 C. J., 628; 7 C.
J. S., 986.) This is not a mere fiction or an arbitrary rule; for such member or
assistant, as in our case, not only acts in the name and interest of the firm, but
his information, by the nature of his connection with the firm is available to his
associates or employers. The rule is all the more to be adhered to where, as in
the present instance, the opinion was actually signed by the head of the firm
and carries his initials intended to convey the impression that it was dictated
by him personally. No progress could be hoped for in "the public policy that the
client in consulting his legal adviser ought to be free from apprehension of
disclosure of his confidence," if the prohibition were not extended to the
attorney's partners, employers or assistants.
The fact that petitioner did not object until after four months had passed from
the date Attorney Francisco first appeared for the defendants does not operate
as a waiver of her right to ask for his disqualification. In one case, objection to
the appearance of an attorney was allowed even on appeal as a ground for
reversal of the judgment. In that case, in which throughout the conduct of the
cause in the court below the attorney had been suffered so to act without
objection, the court said: "We are all of the one mind, that the right of the
appellee to make his objection has not lapsed by reason of failure to make it
sooner; that professional confidence once reposed can never be divested by
expiration of professional employment." (Nickels vs. Griffin, 1 Wash. Terr., 374,
321 A. L. R. 1316.)
The complaint that petitioner's remedy is by appeal and not by certiorari
deserves scant attention. The courts have summary jurisdiction to protect the
rights of the parties and the public from any conduct of attorneys prejudicial to
the administration of the justice. The summary jurisdiction of the courts over
attorneys is not confined to requiring them to pay over money collected by them
but embraces authority to compel them to do whatever specific acts may be
incumbent upon them in their capacity of attorneys to perform. The courts
from the general principles of equity and policy, will always look into the
dealings between attorneys and clients and guard the latter from any undue
consequences resulting from a situation in which they may stand unequal. The
courts acts on the same principles whether the undertaking is to appear, or, for
that matter, not to appear, to answer declaration, etc. (6 C.J., 718 C.J.S.,
1005.) This summary remedy against attorneys flows from the facts that they
are officers of the court where they practice, forming a part of the machinery of
the law for the administration of justice and as such subject to the disciplinary
authority of the courts and to its orders and directions with respect to their
relations to the court as well as to their clients. (Charest vs. Bishop, 137 Minn.,
102; 162, N.W., 1062, Note 26, 7 C. J. S., 1007.) Attorney stand on the same
footing as sheriffs and other court officers in respect of matters just mentioned.
We conclude therefore that the motion for disqualification should be allowed. It
is so ordered, without costs.
Republic of the Philippines
SUPREME COURT
SECOND DIVISION
Adm. Case No. 4680
false, the latter committed a serious breach of public trust and of their lawyers'
oath.
Respondents denied the allegations against them. They alleged that the
preparation of the SoVs was made by the 12 canvassing committees which the
Board had constituted to assist in the canvassing. They claimed that the errors
pointed out by complainant could be attributed to honest mistake, oversight,
and/or fatigue.
In his Consolidated Reply, complainant counters that respondents should be
held responsible for the illegal padding of the votes considering the nature and
extent of the irregularities and the fact that the canvassing of the election
returns was done under their control and supervision.
On December 4, 1998, the Integrated Bar of the Philippines, to which this
matter had been referred pursuant to Rule 139-B, 13, in relation to 20 of the
Rules of Court, recommended the dismissal of the complaint for lack of
merit.3 Petitioner filed a motion for reconsideration on March 11, 1999, but his
motion was denied in a resolution of the IBP Board of Governors dated April
22, 1999. On June 4, 1999, he filed this petition pursuant to Rule 139-B,
12(c).
It appears that complainant likewise filed criminal charges against respondents
before the COMELEC (E.O. Case No. 96-1132) for violation of R.A. No. 6646,
27(b). In its resolution dated January 8, 1998, the COMELEC dismissed
complainant's charges for insufficiency of evidence. However, on a petition for
certiorari filed by complainant,4 this Court set aside the resolution and directed
the COMELEC to file appropriate criminal charges against respondents.
Reconsideration was denied on August 15, 2000.
Considering the foregoing facts, we hold that respondents are guilty of
misconduct.
First. Respondent Llorente seeks the dismissal of the present petition on the
ground that it was filed late. He contends that a motion for reconsideration is a
prohibited pleading under Rule 139-B, 12(c)5 and, therefore, the filing of such
motion before the IBP Board of Governors did not toll the running of the period
of appeal. Respondent further contends that, assuming such motion can be
filed, petitioner nevertheless failed to indicate the date of his receipt of the April
22, 1999 resolution of the IBP denying his motion for reconsideration so that it
cannot be ascertained whether his petition was filed within the 15-day period
under Rule 139-B, 12(c).
The contention has no merit. The question of whether a motion for
reconsideration is a prohibited pleading or not under Rule 139-B, 12(c) has
been settled in Halimao v. Villanueva,6 in which this Court held:
Although Rule 139-B, 12(C) makes no mention of a motion for
reconsideration, nothing in its text or in its history suggests that such
motion is prohibited. It may therefore be filed within 15 days from notice
to a party. Indeed, the filing of such motion should be encouraged before
resort is made to this Court as a matter of exhaustion of administrative
remedies, to afford the agency rendering the judgment an opportunity to
correct any error it may have committed through a misapprehension of
facts or misappreciation of the evidenced.7
On the question whether petitioner's present petition was filed within the 15day period provided under Rule 139-B, 12(c), although the records show that
it was filed on June 4, 1999, respondent has not shown when petitioner
received a copy of the resolution of the IBP Board of Governors denying his
motion for reconsideration. It would appear, however, that the petition was filed
on time because a copy of the resolution personally served on the Office of the
Bar Confidant of this Court was received by it on May 18, 1999. Since copies of
IBP resolutions are sent to the parties by mail, it is possible that the copy sent
to petitioner was received by him later than May 18, 1999. Hence, it may be
assumed that his present petition was filed within 15 days from his receipt of
the IBP resolution. In any event, the burden was on respondent, as the moving
party, to show that the petition in this case was filed beyond the 15-day period
for filing it.
Even assuming that petitioner received the IBP resolution in question on May
18, 1999, i.e., on the same date a copy of the same was received by the Office
of the Bar Confidant, the delay would only be two days.8 The delay may be
overlooked, considering the merit of this case. Disbarment proceedings are
undertaken solely for public welfare. The sole question for determination is
whether a member of the bar is fit to be allowed the privileges as such or not.
The complainant or the person who called the attention of the Court to the
attorney's alleged misconduct is in no sense a party, and generally has no
interest in the outcome except as all good citizens may have in the proper
administration of justice.9 For this reason, laws dealing with double
but also in the total number of votes credited for senatorial candidate
Enrile which exceeded the total number of voters who actually voted in
those precincts during the May 8, 1995 elections, renders the defense of
honest mistake or oversight due to fatigue, as incredible and simply
unacceptable.22
Indeed, what is involved here is not just a case of mathematical error in the
tabulation of votes per precinct as reflected in the election returns and the
subsequent entry of the erroneous figures in one or two SoVs23 but a
systematic scheme to pad the votes of certain senatorial candidates at the
expense of petitioner in complete disregard of the tabulation in the election
returns. A cursory look at the evidence submitted by petitioner reveals that, in
at least 24 SoVs involving 101 precincts, the votes for candidate Enrile
exceeded the number of voters who actually voted in the said precincts and, in
18 SoVs, returns from 22 precincts were-tabulated twice. In addition, as the
Court noted in Pimentel, the total number of votes credited to each of the seven
senatorial candidates in question, as reflected in the CoC, markedly differ from
those indicated in the SoVs.24
Despite the fact that these discrepancies, especially the double recording of the
returns from 22 precincts and the variation in the tabulation of votes as
reflected in the SoVs and CoC, were apparent on the face of these documents
and that the variation involves substantial number of votes, respondents
nevertheless certified the SoVs as true and correct. Their acts constitute
misconduct.
Respondent Llorente's contention that he merely certified the genuineness and
due execution of the SoVs but not their correctness is belied by the certification
which reads:
WE HEREBY CERTIFY that the foregoing Statement of Votes by . . .
[p]recinct is true and correct. IN WITNESS WHEREOF, we sign these
presents at the City/Municipality of ___________ Province of ________ this
_______ day of May, 1995. (Emphasis added)
Nor does the fact that the canvassing was open to the public and observed by
numerous individuals preclude the commission of acts for which respondents
are liable. The fact is that only they had access to the SoVs and CoC and thus
had the opportunity to compare them and detect the discrepancies therein.
February 7, 1940
the face of the circumstances surrounding the arrest as set forth in the two
motions for dismissal by the provincial fiscal of Tayabas, which facts and
circumstances must have been investigated and duly weighed and considered
by the respondent judge of the Court of First Instance of Tayabas, the arrest
effected by Lieutenant Orais cannot be said to have be entirely unjustified. If,
"under trying circumstances and in a zealous effort to obey the orders of his
superior officer and to enforce the law, a peace officer makes a mere mistake in
good faith, he should be exculpated. Otherwise, the courts will put a premium
on crime and will terrorize peace officers through a fear of themselves violating
the law. See generally Voorhees on Arrest; 5 Corpus Juris, pp. 399, 416; 2
R.C.L., 450. (United States vs. Santos, 36 Phil., 853, 855.)"
The petition is hereby dismissed, without pronouncement regarding cost. So
ordered.
Avancea, C.J., Villa-Real, Diaz and Concepcion, JJ., concur.
Separate Opinions
The motion was overruled by Judge Gutierrez David, then presiding the second
branch of the Court of First Instance of Tayabas. Jacinto Yamson, appointed as
special fiscal to take charge of the case, moved for the reconsideration of the
order of Judge Gutierrez David. To this motion, Attorney Suarez, through
counsel, interposed an opposition. Judge Servillano Platon, then presiding the
first branch of the Court of First Instance of Tayabas, acceded to the motion
and dismissed the information. From this order, Attorney Suarez appealed, but
the appeal was dismissed by this Court on the ground that mandamus was the
proper remedy. Accordingly, the present action is filed in this Court.
The sole question here involved is whether or not, according to the evidence in
the hands of the prosecution, there is sufficient ground to proceed with the
criminal case for arbitrary detention against Lieutenant Vivencio Orais and
Justice of the Peace Damian Jimenez. A close examination of such evidence,
which is attached to the record, will disclose that the arrest of Fortunato
Suarez by Lieutenant Orais in the morning of May 9, 1935, was prompted
obviously, not by official duty, but by personal resentment against certain
statements made by the former. I have taken pains to scrutinize carefully the
testimonies of all the witnesses who testified in the preliminary investigation,
and they show nothing seditious in the utterances of Attorney Suarez on the
occasion in question. My conclusion, then, is that the detention of Attorney
Suarez by Lieutenant Orais was arbitrary, and that the charge made against
Lieutenant Orais for arbitrary detention is well founded on facts.
The fiscal, in moving for the dismissal of the case before the Court of First
Instance of Tayabas, mentioned a reinvestigation conducted by him of the case,
in which he supposedly found a new evidence warranting its dismissal.
Counsel for Attorney Fortunato Suarez, however, insisted on the production of
such new evidence before the court, but the prosecution could not respond to
such demand. This is an indication that the supposed additional evidence
never existed.
But the majority, instead of deciding the issue as to whether or not the
evidence in the hands of the prosecution was sufficient to proceed with the
charge for arbitrary detention, takes for granted that such evidence was not
sufficient, relying upon the assumption that the "circumstances surrounding
the arrest as set forth in the two motions for dismissal by the provincial fiscal
of Tayabas . . . must have been investigated and duly weighed and considered
by the respondent judge of the Court of First Instance of Tayabas." In other
words, the majority assumes that which is the subject of the petitioner's
The records and the pleadings of the parties disclose the antecedents.
On 3 November 1995, SPO3 Virgilio Dimatulac was shot dead at his residence
in Barangay San Nicolas, Masantol, Pampanga.
On 5 November 1995, a complaint for Murder was filed before the Municipal
Circuit Trial Court (MCTC) of Macabebe-Masantol in Macabebe, Pampanga, by
SPO1 Renato Layug of the Masantol Police Station against private respondents
Mayor Santiago Yabut, Martin Yabut, Servillano Yabut, Evelino David, Justino
Mandap, Casti David, Francisco Yambao, Juan Magat, Arturo Naguit,
Fortunato Mallari, Jesus de la Cruz, Joselito Miranda, SPO3 Gilberto
Malabanan, Aniano Magnaye, Vladimir Yumul, a certain "Danny," and a certain
"Koyang/Arding." The complaint was docketed as Criminal Case No. 95-360.
After conducting a preliminary examination in the form of searching questions
and answers, and finding probable cause, Judge Designate Serafin B. David of
the MCTC issued warrants for the arrest of the accused and directed them to
file their counter-affidavits.
Only accused Evelino David, Justino Mandap, Juan Magat and Francisco
Yambao were arrested; while only Francisco Yambao submitted his counter
affidavit. 3
On 1 December 1995, after appropriate proceedings, Judge David issued a
Resolution 4 in Criminal Case No. 95-360 finding reasonable ground to believe
that the crime of murder had been committed and that the accused were
probably guilty thereof. His findings of fact and conclusions were as follows:
That on or about November 3, 1995, all the accused under the
leadership of Mayor Santiago "Docsay" Yabut, including two John
Does identified only as Dan/Danny and Koyang/Arding, went to
Masantol, Pampanga for the purpose of looking for a certain PO3
Virgilio Dimatulac.
At first, the accused, riding on [sic] a truck, went to the Municipal
Hall of Masantol, Pampanga inquiring about PO3 Virgilio
Dimatulac. Thereafter, they went to the house of Mayor Lacap for
the purpose of inquiring [about] the [the location of the] house of
PO3 Virgilio Dimatulac, until finally, they were able to reach the
house of said Virgilio Dimatulac at San Nicolas, Masantol,
Pampanga.
Upon reaching the house of PO3 Virgilio Dimatulac, the truck the
accused were all riding, stopped and parked in front of the house
of said PO3 Virgilio Dimatulac, some of the accused descended
from the truck and positioned themselves around the house while
others stood by the truck and the Mayor stayed [in] the truck with
a bodyguard.
Accused Billy Yabut, Kati Yabut and Francisco Yambao, went
inside the house of Virgilio Dimatulac [and] were even offered
coffee.
[A]ccused Yabut brothers (Kati and Billy) strongly suggested to
Virgilio Dimatulac to go down to see the Mayor outside in front of
his house to say sorry.
[W]hen Virgilio Dimatulac went down his house, suddenly [a] gun
shot was heard and then, the son of Virgilio Dimatulac, Peter Paul,
started to shout the following words: "What did you do to my
father?!"
One of the men of Mayor "Docsay" Yabut shot Virgilio Dimatulac,
and as a consequence, he died; and before he expired, he left a
dying declaration pointing to the group of Mayor "Docsay" Yabut as
the one responsible.
That right after Virgilio Dimatulac was shot, accused "Docsay"
Yabut ordered his men to go on board the truck and immediately
left away leaving Virgilio Dimatulac bleeding and asking for help.
On their way home to Minalin, accused Santiago "Docsay" Yabut
gave money to accused John Doe Dan/Danny and Francisco "Boy"
Yambao was asked to bring the accused John Doe to Nueva Ecija
which he did.
Further, accused Santiago "Docsay" Yabut told his group to deny
that they ever went to Masantol.
The court, after having conducted preliminary examination on the
complainant and the witnesses presented, [is] satisfied that there is
a [sic] reasonable ground to believe that the crime of murder was
and Peter Paul's uncle, Jun Dimatulac. Virgilio warmly welcomed the group
and even prepared coffee for them. Servillano and Martin Yabut told Virgilio to
come down from his house and apologize to the Mayor, but hardly had Virgilio
descended when Peter Paul heard a gunshot. While Peter Paul did not see who
fired the shot, he was sure it was one of Mayor Yabut's companions. Peter Paul
opined that his father was killed because the latter spoke to the people of
Minalin, Pampanga, against the Mayor, Peter Paul added in a supplemental
statement (Susog na Salaysay) 7 that he heard Mayor Yabut order Virgilio killed.
It his Sinumpaang Salaysay, 8 Police Officer Leopoldo Soriano of the Masantol
Municipal Police Station in Masantol, Pampanga, declared that on 3 November
1995, between 3:30 and 4:00 p.m., while he was at the polite station, three
men approached him and asked for directions to the house of Mayor Epifanio
Lacap. Soriano recognized one of the men as SPO1 Labet Malabanan of
Minalin, Pampanga. The group left after Soriano gave them directions, but one
of the three returned to ask whether PO3 Virgilio Dimatulac was on duty, to
which Soriano replied that Dimatulac was at home. The group left on board a
military truck headed for San Nicolas, Masantol, Pampanga. Later that day,
SPO2 Michael Viray received a telephone call at the police station reporting
that someone had shot Virgilio Dimatulac.
Thereafter, Pampanga Assistant Provincial Prosecutor Sylvia Q. Alfonso-Flores
conducted a reinvestigation. However, it is not clear from the record whether
she conducted the same motu proprio or upon motion of private respondents
Santiago Yabut, Servillano Yabut and Martin Yabut (hereafter YABUTs). All of
the accused who had not submitted their counter-affidavits before the MCTC,
except accused "Danny" and "Koyang/Arding," submitted their counteraffidavits to Assistant Provincial Prosecutor Alfonso Flores.
In her Resolution dated 29 January 1996, 9 Assistant Provincial Prosecutor
Alfonso-Flores found that the YABUTs and the assailant Danny, to the
exclusion of the other accused, were in conspiracy with one another, but that
the offense committed was only homicide, not murder. In support of such
finding, Alfonso-Flores reasoned thus:
The complainant in this case charges the crime of Murder qualified
by treachery. It must be noted that to constitute treachery, two
conditions must be present, to wit, 1) the employment of the [sic]
means of execution were give [sic] the person attacked no
Pampanga, against the YABUTs and John Doe alias "Danny Manalili" and
docketed as Criminal Case No. 96-1667(M). The accusatory portion of the
information read as follows:
That on or about the 3rd day of November, 1995, in the
municipality of Masantol, province of Pampanga, Philippines and
within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together and mutually
helping one another, with deliberate intent to take the life of PO3
Virgilio A. Dimatulac, did then and there wilfully, unlawfully and
feloniously shoot the said PO3 Virgilio A. Dimatulac on his
abdomen with the use of a handgun, thereby inflicting, upon him a
gunshot wound which cause[d] the death of the said victim.
All contrary to law.
The Information, although dated 29 January 1996 was signed by Provincial
Prosecutor Manarang on "2/27/96",i.e., a day before its filing in court.
On 28 February 1996, Judge Reynaldo V. Roura, presiding judge of Branch 55,
approved the cash bonds of the YABUTs, each in the amount of P20,000.00,
and recalled the warrants for their arrest. 13
On 29 February 1996, Atty. Amado Valdez, who had entered his appearance as
private prosecutor, filed two (2) motions with the trial court: (1) a Motion to
Issue Hold Departure Order Against All Accuseds 14 [sic]; and an (2) Urgent
Motion to Defer Proceedings, 15 copies of which were furnished the Office of the
Provincial Prosecutor of Pampanga. The second motion was grounded on the
pendency of the appeal before the Secretary of Justice and a copy thereof was
attached to the motion. Judge Roura set the motions for hearing on 8 March
1996. 16
On 7 March 1996, Judge Roura ordered the arrest of the remaining accused,
Danny Manalili. 17
On 8 March 1996, the YABUTs filed their opposition 18 to the Motion to Issue
Hold Departure Order and the Motion to Defer Proceedings. The YABUTs
asserted that, as to the first, by posting bail bonds, they submitted to the
jurisdiction of the trial court and were bound by the condition therein to
"surrender themselves whenever so required by the court, and to seek
permission from the court should any one of them desire to travel;" and, as to
the second, the pendency of the appeal before the Secretary of Justice was not
a ground to defer arraignment; moreover, the trial court had to consider their
right to a speedy trial, especially since there was no definite date for the
resolution of the appeal. Then invoking this Court's rulings in Crespo v.
Mogul 19 and Balgos v. Sandiganbayan, 20 the YABUTs further asserted that
petitioners should have filed a motion to defer the filing of the information for
homicide with the Office of the Provincial Prosecutor, or sought, from the
Secretary of Justice, an order directing the Provincial Prosecutor to defer the
filing of the information in court.
In a Reply 21 to the opposition, the private prosecution, citing Section 20 of
Rule 114 of the Rules of Court, insisted on the need for a hold-departure order
against the accused; argued that the accused's right to a speedy trial would not
be impaired because the appeal to the Secretary of Justice was filed pursuant
to Department Order No. 223 of the DOJ and there was clear and convincing
proof that the killing was committed with treachery and other qualifying
circumstances not absorbed in treachery; and contended that the accused's
invocation of the right to a speedy trial was inconsistent with their filing of
various dilatory motions during the preliminary investigation. The YABUTs filed
a Rejoinder 22 to this Opposition.
On 26 March 1996, Judge Roura deferred resolution of the Motion to Issue a
Hold Departure Order until "such time that all the accused who are out on bail
are arraigned," but denied the Motion to Defer Proceedings as he found no
compelling reason therefor, considering that although the appeal was filed on
23 February 1996, "the private prosecution has not shown any indication that
[the] appeal was given due course by the Secretary of Justice." Judge Roura
also set the arraignment of the accused on 12 April 1996. 23
It would appear that the private prosecution moved to reconsider the order
denying the Motion to Defer Proceedings since, on 12 April 1996, Judge Roura
issued an Order 24 giving the private prosecutor "ten (10) days from today
within which to file a petition for certiorari questioning the order of the Court
denying his motion for reconsideration of the order of March 26, 1996."
Arraignment was then reset to 3 May 1996.
On 19 April 1996, petitioners filed a motion to inhibit Judge Roura 25 from
hearing Criminal Case No. 96-1667(M) on the ground that he: (a) hastily set
the case for arraignment while the former's appeal in the DOJ was still pending
evaluation; and (b) prejudged the matter, having remarked in open court that
there was "nothing in the records of the case that would qualify the case into
Murder." At the same time, petitioners filed a petition for prohibition 26 with the
Court of Appeals docketed therein as CA-G.R. SP No. 40393, to enjoin Judge
Roura from proceeding with the arraignment in Criminal Case No. 96-1667(M).
On 24 April 1996, Public Prosecutor Olimpio R. Datu filed a Manifestation and
Comment 27 with the trial court wherein he opposed the motion to inhibit
Judge Roura; manifested that "there is nothing in the record . . . which shows
that the subject killing is qualified into murder;" and announced that he "will
no longer allow the private prosecutor to participate or handle the prosecution
of [the] case" in view of the latter's petition to inhibit Judge Roura.
On 29 April 1996, Judge Roura voluntarily inhibited himself and ordered the
case transferred to Branch 54 of the RTC, presided over by herein public
respondent Judge Sesinando Villon. 28
On 30 April 1996, the Branch Clerk of Court of Branch 54 of the RTC received
the record of Criminal Case No. 96-1667(M). 29
On 30 April 1996, petitioners filed with the trial court a
Manifestation 30 submitting, in connection with their Motion to Defer
Proceedings and Motion to Inhibit Judge Roura, documentary evidence to
support their contention that the offense committed was murder, not homicide.
The documents which they claimed were not earlier submitted by the public
prosecution were the following:
a. Counter-Affidavit of SPO1 Gilberto D. Malabanan.
b. Sinumpaang Salaysay of Vladimir Yumul y
Dimatulac.
c. Counter-Affidavit of Francisco I. Yambao.
d. Counter-Affidavit of SPO2 Fortunato Mallari.
e. Sinumpaang Salaysay of Aniano Magnaye.
f. Sinumpaang Salaysay of Leopoldo Soriano.
1996 of the Court of Appeals in CA-G.R. SP No. 40393 which, inter alia,
deferred resolution on the application for a temporary restraining order "until
after the required comment is submitted by the respondent;" stressed that the
filing of the information for the lesser offense of homicide was "clearly unjust
and contrary to law in view of the unquestionable attendance of circumstances
qualifying the killing to murder;" and asserted that a number of Supreme
Court decisions supported suspension of the proceedings in view of the
pendency of their appeal before the DOJ.
On 31 May 1997, Judge Villon issued an Order 36 directing the accused to file
their comment on the Urgent Motion to Set Aside Arraignment within fifteen
days from notice.
In a letter 37 addressed to the Provincial Prosecutor dated 7 June 1996, public
respondent Secretary Teofisto Guingona of the DOJ resolved the appeal in favor
of petitioners. Secretary Guingona ruled that treachery was present and
directed the Provincial Prosecutor of San Fernando, Pampanga "to amend the
information filed against the accused from homicide to murder," and to include
Fortunato Mallari as accused in the amended information. The findings and
conclusions of Secretary Guingona read as follows:
Contrary to your findings, we find that there is treachery that
attended the killing of PO3 Dimatulac. Undisputedly, the victim
was suddenly shot while he was descending the stairs. The attack
was unexpected as the victim was unarmed and on his way to
make peace with Mayor Yabut, he was unsuspecting so to speak.
From the circumstances surrounding his killing, PO3 Dimatulac
was indeed deprived of an opportunity to defend himself or to
retaliate.
Corollarily, we are also convinced that such mode of attack was
consciously and deliberately adopted by the respondents to ensure
the accomplishment of their criminal objective. The admission of
respondent Malabanan is replete with details on how the principal
respondent, Mayor Yabut, in conspiracy with the assailant and
others, had consciously and deliberately adopted means to ensure
the execution of the crime. According to him, while they were on
their way to the victim's house, Mayor Yabut already instructed
Danny, the assailant, that, "Dikitan mo lang, alam no na king ano
ang gagawin mo, bahala ka na" This explains why Danny
positioned himself near the stairs of the victim's house armed with
a handgun, such positioning was precisely adopted as a means to
ensure the accomplishment of their evil design and Mayor Yabut
ordered nobody else but Danny to shoot the victim while
descending the stairs as his position was very strategic to ensure
the killing of the victim.
As has been repeatedly held, to constitute treachery, two
conditions must be present, to wit: (1) employment of means of
execution that gives the person [attacked] no opportunity to defend
himself or retaliate; and (2) the means of execution were
deliberately or consciously adopted (People vs. Talaver, 230 SCRA
281 [1994]). In the case at bar, these two (2) requisites are present
as established from the foregoing discussion. Hence, there being a
qualifying circumstance of treachery, the crime committed herein
is murder, not homicide (People vs. Gapasin, 231 SCRA 728
[1994]).
Anent the alleged participation of respondents Fortunato Mallari
and Francisco Yambao, we find sufficient evidence against Mallari
as part of the conspiracy but not against Yambao. As can be
gleaned from the sworn-statement of Yambao, which appears to be
credible, Mallari tried also to persuade the victim to go with them,
using as a reason that he (victim) was being invited by General
Ventura. He was also seen trying to fix the gun which was used in
killing the victim. These actuations are inconsistent with the claim
that his presence at the crime scene was merely passive.
On the other hand, we find credible the version and explanation of
Yambao. Indeed, under the obtaining circumstances, Yambao had
no other option but to accede to the request of Mayor Yabut to
provide transportation to the assailant. There being an actual
danger to his life then, and having acted under the impulse of an
uncontrollable fear, reason dictates that he should be freed from
criminal liability. 38
The YABUTs moved to reconsider the resolution, 39 citing Section 4 of
"Administrative/Administration Order No. 223 of the DOJ." 40
the court order dated May 20, 1996, the petition for review insofar
as the respondents-Yabut are concerned has been rendered moot
and academic.
However, the Secretary reiterated that Fortunato Mallari should be
included in the information for homicide.
On 30 July 1996, Public Prosecutor Jaime Bustos filed a Motion for Leave to
Amend Information and to Admit Amended Information. 46 The Amended
Information 47 merely impleaded Fortunato Mallari as one of the accused.
In his Order 48 of 1 August 1996, Judge Villon denied petitioners' motion to set
aside arraignment, citing Section 4, DOJ Department Order No. 223, and the
letter of the Secretary of Justice of 1 July 1996. Petitioners forthwith moved for
reconsideration 49 of the order, arguing that the Motion to Defer the
Proceedings filed by petitioners was meritorious and did not violate the
accused's right to speedy trial; and that the DOJ had ruled that the proper
offense to be charged was murder and did not reverse such finding. Petitioners
also cited the Solicitor General's stand 50 in CA-G.R. SP No. 40393 that holding
accused's arraignment in abeyance was proper under the circumstances.
Finally, petitioners contended that in proceeding with the arraignment despite
knowledge of a petition for prohibition pending before the Court of Appeals, the
trial court violated Section 3(d), Rule 71 of the Rules of Court on indirect
contempt. The YABUTs opposed the motion on the ground that it raised no
argument which had not yet been resolved. 51
On 3 September 1996, petitioners filed a Motion to Defer Arraignment of
Accused Fortunato Mallari, 52 which the trial court granted in view of
petitioners' motion for reconsideration of the court's order denying petitioners'
motion to set aside private respondents' arraignment. 53 As expected, Mallari
moved to reconsider the trial court's order and clamored for consistency in the
trial court's rulings. 54
In an order 55 dated 15 October 1996, Judge Villon denied reconsideration of
the order denying petitioners' motion to set aside arraignment, citing the
YABUTs' right to a speedy trial and explaining that the prosecution of an
offense should be under the control of the public prosecutor, whereas
petitioners did not obtain the conformity of the prosecutor before they filed
various motions to defer proceedings. Considering said order, Judge Villon
deemed accused Mallari's motion for reconsideration moot and academic. 56
On 16 October 1996, the Court of Appeals promulgated its decision 57 in CAG.R. SP No. 40393 dismissing the petition therein for having become moot and
academic in view of Judge Roura's voluntary inhibition, the arraignment of the
YABUTs and the dismissal, by the Secretary of Justice, of petitioners' appeal as
it had been mooted by said arraignment.
Judge Villon was later detailed to Branch 24 of the Regional Trial Court of
Manila, and Judge Roura was ordered by the Supreme Court to preside over
cases pending in Branch 54 of the Regional Trial Court of Macabebe,
Pampanga, which was previously presided over by Judge Villon. 58 Judge Roura
informed the Office of the Court Administrator and this Court that he had
already inhibited himself from hearing Criminal Case No. 96-1667(M). 59
On 28 December 1996, petitioners filed the instant Petition
for Certiorari/Prohibition and Mandamus. They urge this Court to reverse the
order of respondent Judge denying their Motion to Set Aside Arraignment; set
aside arraignment of private respondents; order that no further action be taken
by any court in Criminal Case No. 96-1667(M) until this petition is resolved;
and order respondents Secretary of Justice and the prosecutors concerned to
amend the information from homicide to murder.
Petitioners insist that the killing of PO3 Virgilio Dimatulac was attended by
treachery since private respondents tricked the victim into coming out of his
house and then shot him while he was going down the stairs. There was,
petitioners claim, "an orchestrated effort on the part of [private respondents] to
manipulate the rules on administrative appeals with the end in view of evading
prosecution for the [non-bailable] offense of murder," as shown by the following
events or circumstances:
(1) Assistant Provincial Prosecutor Alfonso-Flores
downgraded the nature of the crime committed to
homicide, a bailable offense, on strength of a motion
for reinvestigation filed by the YABUTs who had not yet
been arrested.
(2) Respondent Mayor and his companions returned to
Minalin after the killing and went into hiding for four
(4) months until the offense charged was downgraded.
proceed with the arraignment despite the pending review of the case by
respondent Secretary of Justice. Further, Judge Villon unjustly invoked private
respondents' right to a speedy trial, after a lapse of barely three (3) months
from the filing of the information on 23 February 1996; overlooked that private
respondents were estopped from invoking said right as they went into hiding
after the killing, only to resurface when the charge was reduced to homicide;
and failed to detect the Provincial Prosecutor's bias in favor of private
respondents. Judge Villon should have been more circumspect as he knew that
by proceeding with the arraignment, the appeal with the DOJ would be
rendered technically nugatory.
Finally, petitioners submit that the DOJ rule prohibiting appeals from
resolutions of prosecutors to the Secretary of Justice once the accused had
already been arraigned applies only to instances where the appellants are the
accused, since by submitting to arraignment, they voluntarily abandon their
appeal.
In their comment, private respondents contend that no sufficient legal
justification exists to set aside private respondents' arraignment, it having
already been reset twice from 12 April 1996 to 3 may 1996, due to petitioners'
pending appeals with the DOJ; and from 3 May 1996 to 20 May 1996, due to
the transfer of this case to Branch 54. Moreover, as of the latter date, the DOJ
had not yet resolved petitioners' appeal and the DOJ did not request that
arraignment be held in abeyance, despite the fact that petitioners' appeal had
been filed as early as 23 February 1996, at least 86 days prior to private
respondents' arraignment. They point out that petitioners did not move to
reconsider the RTC's 26 March 1996 denial of the Motion to Defer, opting
instead for Judge Roura's recusal and recourse to the Court of Appeals, and as
no restraining order was issued by the Court of Appeals, it was but proper for
respondent Judge to proceed with the arraignment of private respondent, to
which the public and private prosecutors did not object.
Private respondents further argue that the decision of respondent Secretary,
involving as it did the exercise of discretionary powers, is not subject to judicial
review. Under the principle of separation of powers, petitioners' recourse should
have been to the President. While as regards petitioners' plea that the Secretary
be compelled to amend the information from homicide to murder, private
respondents submit that mandamus does not lie, as the determination as to
what offense was committed is a prerogative of the DOJ, subject only to the
control of the President.
As regards DOJ Department Order No. 223, private respondents theorize that
appeal by complainants is allowed only if the complaint is dismissed by the
prosecutor and not when there is a finding of probable cause, in which case,
only the accused can appeal. Hence, petitioners' appeal was improper.
Finally, private respondents stress the fact that petitioners never appealed the
withdrawal by the public prosecutor of the private prosecutor's authority to
handle the case.
In its comment for the public respondents, the Office of the Solicitor General
(OSG) prays that the petition be denied because: (a) in accordance with Section
4 of DOJ Order No. 223, upon arraignment of the accused, the appeal to the
Secretary of Justice shall be dismissed motu proprio; (b) the filing of the
information for homicide was in compliance with the directive under Section
4(2), D.O. No. 223, i.e., an appeal or motion for reinvestigation from a
resolution finding probable cause shall not hold the filing of the information in
court; (c) the trial court even accommodated petitioners by initially deferring
arraignment pending resolution by the Court of Appeals of the petition for
prohibition, and since said Court did not issue any restraining order,
arraignment was properly had; and (d) reliance on Roberts is misplaced, as
there, accused Roberts and others had not been arraigned and respondent
Judge had ordered the indefinite postponement of the arraignment pending
resolution of their petitions before the Court of Appeals and the Supreme
Court.
We now consider the issues enumerated at the outset of this ponencia.
Plainly, the proceedings below were replete with procedural irregularities which
lead us to conclude that something had gone awry in the Office of the
Provincial Prosecutor of Pampanga resulting in manifest advantage to the
accused, more particularly the YABUTs, and grave prejudice to the State and to
private complainants, herein petitioners.
First, warrants for the arrest of the YABUTs were issued by the MCTC, with no
bail recommended for their temporary liberty. However, for one reason or
another undisclosed in the record, the YABUTs were not arrested; neither did
they surrender. Hence, they were never brought into the custody of the law. Yet,
Asst. Provincial Fiscal Alfonso Reyes, either motu proprio or upon motion of the
YABUTs, conducted a reinvestigation. Since said accused were at large, AlfonsoReyes should not have done so. While it may be true that under the second
ask the latter for instructions. Clearly, under the circumstances, the latter
course of action would have been the most prudent thing to do.
Fifth, as if to show further bias in favor of the YABUTs, the Office of the
Provincial Prosecutor of Pampanga did not even bother to motu proprio, inform
the trial court that the private prosecution had appealed from the resolution of
Alfonso-Flores and had sought, with all the vigour it could muster, the filing of
an information for murder, as found by the MCTC and established by the
evidence before it.
Unsatisfied with what had been done so far to accommodate the YABUTs, the
Office of the Provincial Prosecutor did not even have the decency to agree to
defer arraignment despite its continuing knowledge of the pendency of the
appeal. This amounted to defiance of the DOJ's power of control and
supervision over prosecutors, a matter which we shall later elaborate on.
Moreover, in an unprecedented move, the trial prosecutor, Olimpio Datu, had
the temerity, if not arrogance, to announce that "he will no longer allow the
private prosecutor to participate or handle the prosecution of [the] case" simply
because the private prosecution had asked for the inhibition of Judge Roura.
Said prosecutor forgot that since the offended parties here had not waived the
civil action nor expressly reserved their right to institute it separately from the
criminal action, then they had the right to intervene in the criminal case
pursuant to Section 16 of Rule 1l0 of the Rules of Court.
It is undebatable that petitioners had the right to appeal to the DOJ from the
resolution of Alfonso-Flores. The last paragraph of Section 4 of Rule 112 of the
Rules of Court provides:
If upon petition by a proper party, the Secretary of Justice reverses
the resolution of the provincial or city fiscal or chief state
prosecutor, he shall direct the fiscal concerned to file the
corresponding information without conducting another preliminary
investigation or to dismiss or move for the dismissal of the
complaint or information.
It is clear from the above, that the proper party referred to therein could
be either the offended party or the accused.
More importantly, an appeal to the DOJ is an invocation of the Secretary's
power of control over prosecutors. Thus, in Ledesma v. Court of Appeals, 16 we
emphatically held:
Up to the level then of Judge Villon, two pillars of the criminal justice system
failed in this case to function in a manner consistent with the principle of
accountability inherent in the public trust character of a public office. Judges
Roura and Villon and prosecutors Alfonso-Flores and Datu need be reminded
that it is in the public interest that every crime should be punished 70 and
judges and prosecutors play a crucial role in this regard for theirs is the
delicate duty to see justice done, i.e., not to allow the guilty to escape nor the
innocent to
suffer. 71
Prosecutors must never forget that, in the language of Suarez v. Platon, 72 they
are the representatives not of an ordinary party to a controversy, but of a
sovereignty whose obligation to govern impartially is as compelling as its
obligation to govern at all; and whose interest, therefore, in a criminal
prosecution is not that it shall win every case but that justice be done. As
such, they are in a peculiar and every definite sense the servants of the law,
whose two-fold aim is that guilt shall not escape or innocence suffer.
Prosecutors are charged with the defense of the community aggrieved by a
crime, and are expected to prosecute the public action with such zeal and vigor
as if they were the ones personally aggrieved, but at all times cautious that
they refrain from improper methods designed to secure a wrongful
conviction. 73 With them lies the duty to lay before the court the pertinent facts
at the judge's disposal with strict attention to punctilios, thereby clarifying
contradictions and sealing all gaps in the evidence, with a view to erasing all
doubt from the court's mind as to the accused's innocence or guilt.
The judge, on the other hand, "should always be imbued with a high sense of
duty and responsibility in the discharge of his obligation to promptly and
properly administer justice." 74 He must view himself as a priest, for the
administration of justice is akin to a religious crusade. Thus, exerting the same
devotion as a priest "in the performance of the most sacred ceremonies of
religious liturgy," the judge must render service with impartiality
commensurate with the public trust and confidence reposed in
him. 75 Although the determination of a criminal case before a judge lies within
his exclusive jurisdiction and competence, 76 his discretion is not unfettered,
but rather must be exercised within reasonable confines. 77 The judge's action
must not impair the substantial rights of the accused, nor the right of the State
and offended party to due process of law. 78
Indeed, for justice to prevail, the scales must balance; justice is not to be
dispensed for the accused alone. The interests of society and the offended
parties which have been wronged must be equally considered. Verily, a verdict
of conviction is not necessarily a denial of justice; and an acquittal is not
necessarily a triumph of justice, for, to the society offended and the party
wronged, it could also mean injustice. 79 Justice then must be rendered evenhandedly to both the accused, on one hand, and the State and offended party,
on the other.
In this case, the abuse of discretion on the part of the public prosecution and
Judges Roura and Villon was gross, grave and palpable, denying, the State and
the offended parties their day in court, or in a constitutional sense,due
process. As to said judges, such amounted to lack or excess of jurisdiction, or
that their court was ousted of the jurisdiction in respect thereto, thereby
nullifying as having been done without jurisdiction, the denial of the motion to
defer further hearings, the denial of the motion to reconsider such denial, the
arraignment of the YABUTs and their plea of not guilty.
These lapses by both the judges and prosecutors concerned cannot be taken
lightly. We must remedy the situation before the onset of any irreversible
effects. We thus have no other recourse, for as Chief Justice Claudio Teehankee
pronounced in Galman v. Sandiganbayan: 80
The Supreme Court cannot permit such a sham trial and verdict
and travesty of justice to stand unrectified. The courts of the land
under its aegis are courts of law and justice and equity. They
would have no reason to exist if they were allowed to be used as
mere tools of injustice, deception and duplicity to subvert and
suppress the truth, instead of repositories of judicial power whose
judges are sworn and committed to render impartial justice to all
alike who seek the enforcement or protection of a right or the
prevention of redress of a wrong, without fear or favor and removed
from the pressures of politics and prejudice.
We remind all members of the pillars of the criminal justice system that
theirs is not a mere ministerial task to process each accused in and out
of prison, but a noble duty to preserve our democratic society under a
rule of law.
Anent the third issue, it was certainly grave error for the DOJ to reconsider its
7 June 1996 resolution, holding that murder was committed and directing the
Provincial Prosecutor to accordingly amend the information, solely on the basis
of the information that the YABUTs had already been arraigned. In so doing,
the DOJ relinquished its power of control and supervision over the Provincial
Prosecutor and the Assistant Provincial Prosecutors of Pampanga; and meekly
surrendered to the latter's inappropriate conductor even hostile attitude, which
amounted to neglect of duty or conduct prejudicial to the best interest of the
service, as well as to the undue haste of Judge Roura and Villon in respect of
the arraignment of the YABUTs. The sins of omission or commission of said
prosecutors and judges resulted, in light of the finding of the DOJ that the
crime committed was murder, in unwarranted benefit to the YABUTs and gross
prejudice to the State and the offended parties. The DOJ should have
courageously exercised its power of control by taking bolder steps to rectify the
shocking "mistakes" so far committed and, in the final analysis, to prevent
further injustice and fully serve the ends of justice. The DOJ could have, even
if belatedly, joined cause with petitioners to set aside arraignment. Further, in
the exercise of its disciplinary powers over its personnel, the DOJ could have
directed the public prosecutors concerned to show cause why no disciplinary
action should be taken against them for neglect of duty or conduct prejudicial
to the best interest of the service in not, inter alia, even asking the trial court to
defer arraignment in view of the pendency of the appeal, informing the DOJ,
from time to time, of the status of the case, and, insofar as prosecutor Datu
was concerned, in disallowing the private prosecutor from further participating
in the case.
Finally, the DOJ should have further inquired into the vicissitudes of the case
below to determine the regularity of arraignment, considering that the appeal
was received by the DOJ as early as 23 February 1996.
We then rule that the equally hasty motu proprio "reconsideration" of the 7
June 1996 resolution of the DOJ was attended with grave abuse of discretion.
It is settled that when the State is deprived of due process in a criminal case by
reason of grave abuse of discretion on the part of the trial court, the acquittal
of the accused 81 or the dismissal of the case 82 is void, hence double jeopardy
cannot be invoked by the accused. If this is so in those cases, so must it be
where the arraignment and plea of not guilty are void, as in this case as above
discussed.