Ethics-Chapter III 1
CBD Case No. 176 January 20, 1995
SALLY D. BONGALONTA, Complainant, vs. ATTY. PABLITO M. CASTILLO
and ALFONSO M. MARTIJA, Respondents.
Facts: In a sworn letter-complaint dated February 15, 1995, addressed to
the Commission on Bar Discipline, National Grievance Investigation Office,
Integrated Bar of the Philippines, complainant Sally Bongalonta charged
Pablito M. Castillo and Alfonso M. Martija, members of the Philippine Bar,
with unjust and unethical conduct, to wit: representing conflicting interests
and abetting a scheme to frustrate the execution or satisfaction of a
judgment which complainant might obtain.
The letter-complaint stated that complainant filed with the Regional Trial
Court of Pasig, for estafa, against the Sps. Luisa and Solomer Abuel. She also
filed, a separate civil action, where she was able to obtain a writ of
preliminary attachment and by virtue thereof, a piece of real property
situated in Pasig, Rizal and registered in the name of the Sps. Abuel. Atty.
Pablito Castillo was the counsel of the Sps. Abuel in the aforesaid criminal
and civil cases.
During the pendency of these cases, one Gregorio Lantin filed a civil case for
collection of a sum of money based on a promissory note, also with the Pasig
Regional Trial Court, against the Sps. Abuel. In the said case Gregorio Lantin
was represented by Atty. Alfonso Martija. In this case, the Sps. Abuel were
declared in default for their failure to file the necessary responsive pleading
and evidence ex-parte was received against them followed by a judgment by
default rendered in favor of Gregorio Lantin. A writ of execution was, in due
time, issued and the same property previously attached by complainant was
levied upon.
It is further alleged that in all the pleadings filed in these three (3)
aforementioned cases, Atty. Pablito Castillo and Atty. Alfonso Martija placed
the same address, the same PTR and the same IBP receipt number.
Thus, complainant concluded that the civil case filed by Gregorio Lantin was
merely a part of the scheme of the Sps. Abuel to frustrate the satisfaction of
the money judgment which complainant might obtain in the civil case he
filed.
After hearing, the IBP Board of Governors issued it Resolution with the
following findings and recommendations:
Among the several documentary exhibits submitted by
Bongalonta and attached to the records is a xerox copy of
TCT No. 38374, which Bongalonta and the respondents
admitted to be a faithful reproduction of the original. And it
clearly appears under the Memorandum of Encumbrances on
aid TCT that the Notice of Levy in favor of Bongalonta and
her husband was registered and annotated in said title of
February 7, 1989, whereas, that in favor of Gregorio Lantin,
on October 18, 1989. Needless to state, the notice of levy in
favor of Bongalonta and her husband is a superior lien on the
said registered property of the Abuel spouses over that of
Gregorio Lantin.
Consequently, the charge against the two respondents (i.e.
representing conflicting interests and abetting a scheme to
frustrate the execution or satisfaction of a judgment which
Bongalonta and her husband might obtain against the Abuel
spouses) has no leg to stand on.
However, as to the fact that indeed the two respondents
placed in their appearances and in their pleadings the same
IBP No., respondent Atty. Pablito M. Castillo deserves to be
SUSPENDED for using, apparently thru his negligence, the IBP
official receipt number of respondent Atty. Alfonso M.
Martija.
The explanation of Atty. Castillo's Cashier-Secretary by the
name of Ester Fraginal who alleged in her affidavit dated
March 4, 1993, that it was all her fault in placing the IBP
official receipt number pertaining to Atty. Alfonso M. Martija
in the appearance and pleadings Atty. Castillo and in failing
to pay in due time the IBP membership dues of her employer,
deserves scant consideration, for it is the bounded duty and
obligation of every lawyer to see to it that he pays his IBP
membership dues on time, especially when he practices
before the courts, as required by the Supreme Court.
WHEREFORE, it is respectfully recommended that Atty.
Pablito M. Castillo be SUSPENDED from the practice of law
for a period of six (6) months for using the IBP Official
Receipt No. of his co-respondent Atty. Alfonso M. Martija.
The complaint against Atty. Martija is hereby DISMISSED for
lack of evidence.
Held: The Court agrees with the foregoing findings and recommendations.
It is well to stress again that the practice of law is not a right but a privilege
bestowed by the State on those who show that they possess, and continue to
possess, the qualifications required by law for the conferment of such
privilege. One of these requirements is the observance of honesty and candor.
Courts are entitled to expect only complete candor and honesty from the
lawyers appearing and pleading before them. A lawyer, on the other hand,
has the fundamental duty to satisfy that expectation. for this reason, he is
required to swear to do no falsehood, nor consent to the doing of any in
court.chanroblesvirtualawlibrary chanrobles virtual law library
WHEREFORE, finding respondent Atty. Pablito M. Castillo guilty committing a
falsehood in violation of his lawyer's oath and of the Code of Professional
Responsibility, the Court Resolved to SUSPEND him from the practice of law
for a period of six (6) months, with a warning that commission of the same or
similar offense in the future will result in the imposition of a more severe
penalty.

ETERNAL GARDENS MEMORIAL PARK CORPORATION, Petitioner, vs.
COURT OF APPEALS and SPS. LILIA SEVILLA and JOSE SEELIN,
Respondents.
Facts: The case started on May 18, 1981 when private respondent-spouses
Jose Seelin and Lilia Sevilla Seelin filed a complaint against Central Dyeing &
Finishing Corporation (Central Dyeing for brevity) for quieting of title and for
declaration of nullity of Transfer Certificate of Title issued in the name of
said corporation, before the Regional Trial Court of Caloocan City.
On August 24, 1989, the trial court rendered judgment, the dispositive
portion of which reads:
"WHEREFORE, judgment is hereby rendered:
Declaring the defendant's Certificate of Title No. 205942 null and void.
Dismissing counterclaim of defendant without pronouncement as to costs."
The aforesaid decision was affirmed by respondent Court of Appeals and
eventually upheld by this Court.
The RTC decision, having become final and executory, private respondents
moved for execution which was granted by the lower court. Accordingly, a
writ of execution of the decision was issued.
Subsequently, private respondents filed an Urgent Manifestation and Motion
for an Immediate Writ of Possession/Break Open Order. The motion was
opposed by herein petitioner Eternal Gardens Memorial Park Corporation
contending that it is not submitting to the jurisdiction of the trial court; that
it is completely unaware of the suit between private respondents and Central
Dyeing; that it is the true and registered owner of the lot having bought the
same from Central Dyeing; and that it was a buyer in good faith.
On July 1, 1992, the trial court granted private respondents motion. Another
Order was issued on August 18, 1992 by the trial court holding that the
judgment was binding on petitioner, being the successor-in-interest of
defendant Central Dyeing pursuant to Rule 39, Section 48(b) of the Revised
Rules of Court.
Petitioner went to the Court of Appeals in a petition for certiorari. On
September 30, 1992 the Court of Appeals rendered judgment dismissing the
petition.
Indeed, since petitioner admits that it bought the property from Central
Dyeing and Finishing Corporation, petitioner is bound by the decision
rendered therein by respondent Judge.
Under Section 20, Rule 3, Revised Rules of Court, a transferee pendente lite
does not have to be included or impleaded by name in order to be bound by
the judgment because the action or suit may be continued for or against the
original party or the transferor and still be binding on the transferee.
The motion for reconsideration was also denied by the Court of Appeals.
On further appeal to this Court, petitioners petition for review on certiorari,
was denied.
Thereafter, private respondents filed another motion for the issuance of a
second writ of execution before the trial court which was granted.
Not willing to give up, petitioner sought a reconsideration. Petitioners motion
was initially granted by the trial court thru Judge Arturo Romero. However,
Ethics-Chapter III 2
upon motion of private respondents, the said order was reconsidered by
Judge Emilio L. Leachon, Jr., who succeeded Judge Romero. Forthwith, alias
writs of execution were issued.
Desperately needing a favorable judgment, Petitioner, for the second time,
filed a petition for certiorari with respondent Court of Appeals, arguing inter
alia: that the judgment cannot be executed against it because it was not a
party to Civil Case; that the decision of the trial court in said case never
mandated Central Dyeing to deliver possession of the property to the private
respondents; that certain facts and circumstances which occurred after the
finality of the judgment will render the execution highly unjust, illegal and
inequitable; that the issuance of the assailed writ of execution violates the lot
buyers freedom of religion and worship; and that private respondents title is
being questioned in another case.
On September 29, 1995, the respondent court rendered judgment dismissing
the petition for certiorari on the ground that the lower court's decision in
Civil Case had long become final and executory.
Held: The petition must fail.
It is a settled rule that once a court renders a final judgment, all the issues
between or among the parties before it are deemed resolved and its judicial
functions with respect to any matter related to the controversy litigated come
to an end.
Petitioners argument that the trial court cannot order it and the one hundred
(100) memorial lot owners to surrender and/or deliver possession of the
property in dispute on the ground that they were never parties to the case
between private respondents and Central Dyeing, has long been resolved by
respondent Court of Appeals.
Under Section 20, Rule 3, Revised Rules of Court, a transferee pendente lite
does not have to be included or impleaded by name in order to be bound by
the judgment because the action or suit may be continued for or against the
original party or the transferor and still be binding on the transferee.
A note of caution. This case has again delayed the execution of a final
judgment for seventeen (17) years to the prejudice of the private
respondents. In the meantime that petitioner has thwarted execution,
interment on the disputed lot has long been going on, so that by the time this
case is finally terminated, the whole lot shall have already been filled with
tombstones, leaving nothing for private respondents, the real owners of the
property. This is a mockery of justice.
We note that while lawyers owe entire devotion to the interest of their clients
and zeal in the defense of their client's right, they should not forget that they
are officers of the court, bound to exert every effort to assist in the speedy
and efficient administration of justice. They should not, therefore, misuse
the rules of procedure to defeat the ends of justice or unduly delay a case,
impede the execution of a judgment or misuse court processes.
As officers of the court, lawyers have a responsibility to assist in the proper
administration of justice. They do not discharge this duty by filing pointless
petitions that only add to the workload of the judiciary, especially this Court,
which is burdened enough as it is. A judicious study of the facts and the law

should advise them when a case such as this, should not be permitted to be
filed to merely clutter the already congested judicial dockets. They do not
advance the cause of law or their clients by commencing litigations that for
sheer lack of merit do not deserve the attention of the courts.
G.R. No. 144412 : November 18, 2003]
ALLIED BANKING CORPORATION,, Petitioner, v. COURT OF APPEALS and
POTENCIANO L. GALANIDA, respondents.
Facts: Private respondent Potenciano Galanida was hired by petitioner
Allied Banking Corporation and rose from accountant-book keeper to
assistant manager. His appointment was covered by a Notice of Personnel
Action which provides as one of the conditions of employment the provision
on petitioners right to transfer employees:
REGULAR APPOINTMENT: xxx It is understood that the bank reserves the
right to transfer or assign you to other departments or branches of the bank
as the need arises and in the interest of maintaining smooth and
uninterrupted service to the public.
Private respondent was promoted several times and was transferred to
several branches.
Effecting a rotation/movement of officers assigned in the Cebu homebase,
petitioner listed respondent as second in the order of priority of assistant
managers to be assigned outside of Cebu City having been stationed in Cebu
for seven years already. Private respondent manifested his refusal to be
transferred to Bacolod City citing as reason parental obligations, expenses,
and the anguish that would result if he is away from his family. He then filed
a complaint before the Labor Arbiter for constructive dismissal.
Subsequently, petitioner bank informed private respondent that he was to
report to the Tagbilaran City Branch. Private respondent refused and was
eventually dismissed.
The Ruling of the Labor Arbiter
After several hearings, the Labor Arbiter held that Allied Bank had abused its
management prerogative in ordering the transfer of Galanida to its Bacolod
and Tagbilaran branches. In ruling that Galanidas refusal to transfer did not
amount to insubordination, the Labor Arbiter misquoted this Courts decision
in Dosch v. NLRC,[9] thus:
As a general rule, the right to transfer or reassign an employee is recognized
as an employers exclusive right and the prerogative of management.
Ethics-Chapter III 3
The exercise of this right, is not however, absolute. It has certain limitations.
Thus, in Helmut Dosch vs. NLRC, et al. 123 SCRA 296 (1983), the Supreme
Court, ruled:
While it may be true that the right to transfer or reassign an employee is an
employers exclusive right and the prerogative of management, such right is
not absolute. The right of an employer to freely select or discharge his
employee is limited by the paramount police power xxx for the relations
between capital and labor are not merely contractual but impressed with
public interest. xxx And neither capital nor labor shall act oppressively
against each other.
Refusal to obey a transfer order cannot be considered insubordination where
employee cited reason for said refusal, such (sic) as that of being away from
the family.
The Labor Arbiter reasoned that Galanidas transfer was inconvenient and
prejudicial because Galanida would have to incur additional expenses for
board, lodging and travel. On the other hand, the Labor Arbiter held that
Allied Bank failed to show any business urgency that would justify the
transfer.
Still, the Labor Arbiter declined to award Galanida back wages because he was
not entirely free from blame. Since another bank had already employed
Galanida, the Labor Arbiter granted Galanida separation pay in lieu of
reinstatement.
The Ruling of the NLRC
On appeal, the NLRC likewise ruled that Allied Bank terminated Galanida
without just cause. The NLRC agreed that the transfer order was
unreasonable and unjustified, considering the family considerations
mentioned by Galanida. The NLRC characterized the transfer as a demotion
since the Bacolod and Tagbilaran branches were smaller than the Jakosalem
branch, a regional office, and because the bank wanted Galanida, an assistant
manager, to replace an assistant accountant in the Tagbilaran branch. The
NLRC found unlawful discrimination since Allied Bank did not transfer
several junior accountants in Cebu. The NLRC also held that Allied Bank gave
Ms. Co special treatment by assigning her to Cebu even though she had
worked for the bank for less than two years.
The NLRC ruled that Galanidas termination was illegal for lack of due
process. The NLRC stated that Allied Bank did not conduct any hearing. The
NLRC declared that Allied Bank failed to send a termination notice, as
required by law for a valid termination. The Memo merely stated that Allied
Bank would issue a notice of termination, but the bank did not issue any
notice.
The NLRC concluded that Allied Bank dismissed Galanida in bad faith,
tantamount to an unfair labor practice as the dismissal undermined
Galanidas right to security of tenure and equal protection of the laws.
Dissatisfied, Allied Bank filed a petition for review questioning the Decision
and Resolution of the NLRC before the Court of Appeals.
The Ruling of the Court of Appeals
Citing Dosch v. NLRC,[14] the Court of Appeals held that Galanidas refusal to
comply with the transfer orders did not warrant his dismissal. The appellate

court ruled that the transfer from a regional office to the smaller Bacolod or
Tagbilaran branches was effectively a demotion. The appellate court agreed
that Allied Bank did not afford Galanida procedural due process because
there was no hearing and no notice of termination. The Memo merely stated
that the bank would issue a notice of termination but there was no such
notice.
The Court of Appeals affirmed the ruling of the NLRC.
Allied Bank appealed the appellate courts decision and resolution to the
Supreme Court. Allied Bank prayed that the Supreme Court: (1) issue a
temporary restraining order or writ of preliminary injunction ex parte to
restrain the implementation or execution of the questioned Decision and
Resolution; (2) declare Galanidas termination as valid and legal; (3) set aside
the Court of Appeals Decision and Resolution; (4) make permanent the
restraining order or preliminary injunction; (5) order Galanida to pay the
costs; and (6) order other equitable reliefs.
Issues: WON the Labor Arbiter and respondents counsel violated the CPR?
On the other hand, Galanida defended his right to refuse the transfer order.
The memorandum for Galanida filed with this Court, prepared by Atty. Loreto
M. Durano, again misquoted the Courts ruling in Dosch v. NLRC, thus:
xxx His [Galanidas] refusal to transfer falls well within the ruling of the
Supreme Court in Helmut Dosch vs. NLRC, et. al., 123 SCRA 296 (1983)
quoted as follows:
xxx
Refusal to obey a transfer order cannot be considered insubordination where
employee cited reason for said refusal, such as that of being away from the
family.[18]
Held: The petition is partly meritorious.
Preliminary Matter: Misquoting Decisions of the Supreme Court
The memorandum prepared by Atty. Durano and, worse, the assailed
Decision of the Labor Arbiter, both misquoted the Supreme Courts ruling in
Dosch v. NLRC. The Court held in Dosch:
We cannot agree to Northwests submission that petitioner was guilty of
disobedience and insubordination which respondent Commission sustained.
The only piece of evidence on which Northwest bases the charge of
contumacious refusal is petitioners letter dated August 28, 1975 to R.C.
Jenkins wherein petitioner acknowledged receipt of the formers
memorandum dated August 18, 1975, appreciated his promotion to Director
of International Sales but at the same time regretted that at this time for
personal reasons and reasons of my family, I am unable to accept the transfer
from the Philippines and thereafter expressed his preference to remain in his
position, saying: I would, therefore, prefer to remain in my position of
Manager-Philippines until such time that my services in that capacity are no
longer required by Northwest Airlines. From this evidence, We cannot discern
even the slightest hint of defiance, much less imply insubordination on the
part of petitioner.
The phrase [r]efusal to obey a transfer order cannot be considered
insubordination where employee cited reason for said refusal, such as that of
being away from the family does not appear anywhere in the Dosch decision.
Ethics-Chapter III 4
Galanidas counsel lifted the erroneous phrase from one of the italicized lines
in the syllabus of Dosch found in the Supreme Court Reports Annotated
(SCRA).
The syllabus of cases in official or unofficial reports of Supreme Court
decisions or resolutions is not the work of the Court, nor does it state this
Courts decision. The syllabus is simply the work of the reporter who gives his
understanding of the decision. The reporter writes the syllabus for the
convenience of lawyers in reading the reports. A syllabus is not a part of the
courts decision.[20] A counsel should not cite a syllabus in place of the
carefully considered text in the decision of the Court.
In the present case, Labor Arbiter Almirante and Atty. Durano began by
quoting from Dosch, but substituted a portion of the decision with a
headnote from the SCRA syllabus, which they even underscored. In short,
they deliberately made the quote from the SCRA syllabus appear as the words
of the Supreme Court. We admonish them for what is at the least patent
carelessness, if not an outright attempt to mislead the parties and the courts
taking cognizance of this case. Rule 10.02, Canon 10 of the Code of
Professional Responsibility mandates that a lawyer shall not knowingly
misquote or misrepresent the text of a decision or authority. It is the duty of
all officers of the court to cite the rulings and decisions of the Supreme Court
accurately.[21]
Decision affirmed. Labor Arbiter Dominador A. Almirante and Atty. Loreto M.
Durano are ADMONISHED to be more careful in citing the decisions of the
Supreme Court in the future.
ADM. CASE No. 7006 October 9, 2007
RE : SUSPENSION OF ATTY. ROGELIO Z. BAGABUYO, FORMER SENIOR
STATE PROSECUTOR.
DECISION
AZCUNA, J.:
This administrative case stemmed from the events of the proceedings in
Crim. Case No. 5144, entitled People v. Luis Bucalon Plaza, heard before the
sala of Presiding Judge Jose Manuel P. Tan, Regional Trial Court (RTC) of
Surigao City, Branch 29.
Crim. Case No. 5144 was originally raffled to the sala of Judge Floripinas C.
Buyser, RTC of Surigao City, Branch 30. In an Order dated March 14, 2002,
Judge Buyser denied the Demurrer to the Evidence of the accused, declaring
that the evidence thus presented by the prosecution was sufficient to prove
the crime of homicide and not the charge of murder. Consequently, the
counsel for the defense filed a Motion to Fix the Amount of Bail Bond.
Respondent Atty. Rogelio Z. Bagabuyo, then Senior State Prosecutor and the
deputized prosecutor of the case, objected thereto mainly on the ground that
the original charge of murder, punishable with reclusion perpetua, was not
subject to bail under Sec. 4, Rule 114 of the Rules of Court.1

In an Order dated August 30, 2002,2 Judge Buyser inhibited himself from
further trying the case because of the "harsh insinuation" of Senior
Prosecutor Rogelio Z. Bagabuyo that he "lacks the cold neutrality of an
impartial magistrate," by allegedly suggesting the filing of the motion to fix
the amount of bail bond by counsel for the accused.
The case was transferred to Branch 29 of the RTC of Surigao City, presided by
Judge Jose Manuel P. Tan. In an Order dated November 12, 2002, Judge Tan
favorably resolved the Motion to Fix the Amount of Bail Bond, and fixed the
amount of the bond at P40,000.
Respondent filed a motion for reconsideration of the Order dated November
12, 2002, which motion was denied for lack of merit in an Order dated
February 10, 2003. In October, 2003, respondent appealed from the Orders
dated November 12, 2002 and February 10, 2003, to the Court of Appeals
(CA).
Instead of availing himself only of judicial remedies, respondent caused the
publication of an article regarding the Order granting bail to the accused in
the August 18, 2003 issue of the Mindanao Gold Star Daily. The article,
entitled "Senior prosecutor lambasts Surigao judge for allowing murder
suspect to bail out," reads:
SENIOR state prosecutor has lashed at a judge in Surigao City for
allowing a murder suspect to go out on bail.
Senior state prosecutor Rogelio Bagabuyo lambasted Judge Manuel
Tan of the Regional Trial Court (RTC) Branch 29 based in Surigao City
for ruling on a motion that sought a bailbond for Luis Plaza who
stands charged with murdering a policeman . . . .
Plaza reportedly posted a P40-thousand bail bond.
Bagabuyo argued that the crime of murder is a non-bailable offense.
But Bagabuyo admitted that a judge could still opt to allow a murder
suspect to bail out in cases when the evidence of the prosecution is
weak.
But in this murder case, Bagabuyo said the judge who previously
handled it, Judge F[lori]pinas B[uy]ser, described the evidence to be
strong. B[uy]ser inhibited from the case for an unclear reason.
xxx
Bagabuyo said he would contest Tan's decision before the Court of
Appeals and would file criminal and administrative charges of
certiorari against the judge.
Bagabuyuo said he was not afraid of being cited in contempt by
Judge Tan.
"This is the only way that the public would know that there are
judges there who are displaying judicial arrogance." he said.3
In an Order dated August 21, 2003, the RTC of Surigao City, Branch 29,
directed respondent and the writer of the article, Mark Francisco of the
Mindanao Gold Star Daily, to appear in court on September 20, 2003 to
explain why they should not be cited for indirect contempt of court for the
publication of the article which degraded the court and its presiding judge
with its lies and misrepresentation.
Ethics-Chapter III 5
The said Order stated that contrary to the statements in the article, Judge
Buyser described the evidence for the prosecution as not strong, but
sufficient to prove the guilt of the accused only for homicide. Moreover, it
was not true that Judge Buyser inhibited himself from the case for an unclear
reason. Judge Buyser, in an Order dated August 30, 2002, declared in open
court in the presence of respondent that he was inhibiting himself from the
case due to the harsh insinuation of respondent that he lacked the cold
neutrality of an impartial judge.
On the scheduled hearing of the contempt charge, Mark Francisco admitted
that the Mindanao Gold Star Daily caused the publication of the article. He
disclosed that respondent, in a press conference, stated that the crime of
murder is non-bailable. When asked by the trial court why he printed such
lies, Mr. Francisco answered that his only source was respondent.4 Mr.
Francisco clarified that in the statement alleging that Judge Buyser inhibited
himself from the case for an unclear reason, the phrase "for an unclear
reason," was added by the newspaper's Executive Editor Herby S. Gomez.5
Respondent admitted that he caused the holding of the press conference, but
refused to answer whether he made the statements in the article until after
he shall have filed a motion to dismiss. For his refusal to answer, the trial
court declared him in contempt of court pursuant to Sec. 3, Rule 71 of the
Rules of Court.6 The Court's Order dated September 30, 2003 reads:
ORDER
Mr. Mark Francisco for publishing this article which is a lie clothed in
half truth to give it a semblance of truth is hereby ordered to pay a
fine of P10,000. Prosecutor Bagabuyo, for obstinately refusing to
explain why he should not be cited for contempt and admitting that
the article published in the Mindanao Gold Star Daily on August 18,
2003 and quoted in the Order of this Court dated August 21, 2003
which is contemptuous was caused by him to be published, is hereby
adjudged to have committed indirect contempt of Court pursuant to
Section 3 of Rule 71 of the Rules of Court and he is hereby ordered to
suffer the penalty of 30 days in jail. The BJMP is hereby ordered to
arrest Prosecutor Rogelio Z. Bagabuyo if he does not put up a bond of
P100,000.00.
SO ORDERD.7
Respondent posted the required bond and was released from the custody of
the law. He appealed the indirect contempt order to the CA.
Despite the citation of indirect contempt, respondent presented himself to
the media for interviews in Radio Station DXKS, and again attacked the
integrity of Judge Tan and the trial court's disposition in the proceedings of
Crim. Case No. 5144.
In an Order dated October 20, 2003, the RTC of Surigao City, Branch 29,
required respondent to explain and to show cause within five days from
receipt thereof why he should not be held in contempt for his media
interviews that degraded the court and the presiding judge, and why he
should not be suspended from the practice of law for violating the Code of
Professional Responsibility, specifically Rule 11.05 of Canon 11 8 and Rule
13.02 of Canon 13.9

In the Order, the trial court stated that respondent was interviewed by Jun
Clergio, and that the interview was repeatedly aired on September 30, 2003
and in his news program between 6:00 and 8:00 a.m. on October 1, 2003. He
was also interviewed by Tony Consing on October 1 and 2, 2003, between
8:00 and 9:00 a.m. in his radio program. In those radio interviews, respondent
allegedly called Judge Tan a judge who does not know the law, a liar, and a
dictator who does not accord due process to the people.
The hearing for the second contempt charge was set on December 4, 2003.
On November, 20, 2003, respondent filed an Urgent Motion for Extension of
Time to File Answer to Contempt alleging that he was saddled with work of
equal importance and needed ample time to answer the same. He also prayed
for a bill of particulars in order to properly prepare for his defense.
In an Order dated November 20, 2003, the trial court denied the motion. It
stated that a bill of particulars is not applicable in contempt proceedings, and
that respondent's actions and statements are detailed in the Order of October
20, 2003.
On the scheduled hearing of December 4, 2003 respondent neither appeared
in court nor informed the court of his absence. The trial court issued an
Order dated December 4, 2003 cancelling the hearing "to give Prosecutor
Bagabuyo all the chances he asks for," and ordered him to appear on January
12, 2004 to explain in writing or orally why he should not be cited in
contempt of court pursuant to the facts stated in the Order dated October 20,
2003. However, respondent did not appear in the scheduled hearing of
January 12, 2004.
On January 15, 2004, the trial court received respondent's Answer dated
January 8, 2004. Respondent denied the charge that he sought to be
interviewed by radio station DXKS. He, however, stated that right after the
hearing of September 30, 2003, he was approached by someone who asked
him to comment on the Order issued in open court, and that his comment
does not fall within the concept of indirect contempt of court. He also
admitted that he was interviewed by his friend, Tony Consing, at the latter's
instance. He justified his response during the interview as a simple exercise
of his constitutional right of freedom of speech and that it was not meant to
offend or malign, and was without malice.
On February 8, 2004, the trial court issued an Order, the dispositive portion
of which reads:
WHEREFORE, finding preponderant evidence that Prosecutor
Bagabuyo has grossly violated the Canons of the legal profession and
[is] guilty of grave professional misconduct, rendering him unfit to
continue to be entrusted with the duties and responsibilities
belonging to the office of an attorney, he is hereby SUSPENDED from
the practice of law.
Likewise, he is also found guilty of indirect contempt of court, for
which he is hereby ordered to suffer the penalty of IMPRISONMENT
for ninety (90) days to be served at the Surigao City Jail and to pay
the maximum fine of THIRTY THOUSAND PESOS (P30,000.00). Future
acts of contempt will be dealt with more severely.
Ethics-Chapter III 6
Let copies of the relevant records be immediately forwarded to the
Supreme Court for automatic review and for further determination of
grounds for [the] disbarment of Prosecutor Rogelio Z. Bagabuyo.10
The trial court found respondent's denials to be lame as the tape of his
interview on October 2, 2003, duly transcribed, showed disrespect of the
court and its officers, thus:
TONY CONSING: Fiscal, nanglabay ang mga oras, nanglabay ang
gamay'ng panahon ang samad sa imong kasingkasing nagpabilin pa
ba ni. O ingnon nato duna na bay pagbag-o sa imong huna-huna
karon?
(Fiscal, after the lapse of time, are you still hurt? Or have you not
changed your mind yet?)
BAGABUYO : Ang akong huna-huna kon aduna man ugaling pagbag-
o ang pagsiguro, ang mga Huwes nga dili mahibalo sa balaod
tangtangon pagka abogado, mao kana.
(If my mind has changed at all, it is that I ensure that all judges who
are ignorant of the law should be disbarred. That's it.)
xxx
BAGABUYO : Mao kana ang tinuod, Ton, ug kining akong guibatonan
karon nga hunahuna mahitungod nianang mga Huwes nga dili
kahibalo sa balaod, magkadugay magkalami. Kada adlao nagatoon
ako. Nagabasa ako sa mga bag-ong jurisprudence ug sa atong balaod
aron sa pagsiguro gayod nga inigsang-at unya nako sa kaso nga
disbarment niining di mahibalo nga Huwes, sigurado gayod ako nga
katangtangan siya sa lisensiya . . . . Ang kini nga Huwes nga dili
mahibalo sa balaod, pagatangtangon na, dili lamang sa pagka-Huwes
kon dili sa pagka-abogado. Tan-awa ra gyod kining iyang gibuhat nga
Order, Ton, ang iyang pagkabakakon . . . .
(That's true, Ton, and this conviction I have now about judges who
are ignorant of the law is made firmer by time. I study everyday. I
read new jurisprudence and the law to insure that when I file the
disbarment case against this Judge who does not know his law, I am
certain that he loses his license. . . . This judge who is ignorant of the
law should not only be removed as a judge but should also be
disbarred. Just take a look at his Order, Ton, and see what a liar he is
. . . .)
xxx
BAGABUYO : Yes, nag-ingon ang iyang Order. . . . Ngano nga
nakaingon ako nga bakakon kini, nag-ingon nga kini konong order
given in open court, ang kalooy sa dios, ang iyang order sa Korte
wala siya mag-ingon ug kantidad nga P100,000.00 nga bail bond. . . .
(Yes, his Order said that . . . . Why did I say that he is a liar? It states
that this Order was "given in open court," and in God's mercy, he did
not state the amount of P100,000.00 as bail bond. . . .)
BAGABUYO : Kay dili man lagi mahibalo sa balaod, ako
siyang gui-ingnan, Your Honor, I have the right to appeal. Mibalik
dayon, ug miingon siya, BJMP arrest Bagabuyo.

(Because he does not know the law, I said, "Your Honor, I have the
right to appeal." Then he came back and said, "BJMP, arrest
Bagabuyo.")
xxx
BAGABUYO : . . . P100,000.00 ang iyang guipapiyansa.
Naunsa na? Dinhi makita nimo ang iyang pagka gross ignorance of
the law. . . .
(He imposed a bail of P100,000.00. How come? This is where you will
see his gross ignorance of the law. . . . )
xxx
TONY CONSING : So karon, unsay plano nimo karon?
(So what is your plan now?)
BAGABUYO : Sumala sa akong gui-ingon moundang lang ako kon
matangtang na siya sa pagka abogado. . . .
(As I have said, I will only stop if he is already disbarred. . . .)
xxx
BAGABUYO : Nasuko siya niini kay hambugero kuno, pero angayan
niyang hibaw-an nga ang trabajo sa Huwes dili ang pagtan-aw kon
ang tawo hambugero . . . . Ug ang akong gisulti mao lamang ang
balaod nga siya in fact at that time I said he is not conversant of the
law, with regards to the case of murder. . . .
(He got angry because I was allegedly bragging but he should know
that it is not for a judge to determine if a person is a braggart. . .
.And what I said was based on the law. In fact, at that time, I said he
is not conversant of the law, with regards to the case of murder . . . .)
xxx
BAGABUYO : Ah, mi sit down sab ako, contempt ra ba kadto . . . . Mao
kana, pero unsa may iyang katuyoan ang iyang katuyoan nga ipa-
adto ako didto kay didto, iya akong pakauwawan kay iya kong
sikopon, iya kong ipa-priso, pero kay di man lagi mahibalo sa balaod,
ang iyang gui orderan BJMP, intawon por dios por Santo, Mr. Tan,
pagbasa intawon ug balaod, naunsa ka ba Mr. Tan? Unsa may imong
hunahuna nga kon ikaw Huwes, ikaw na ang diktador, no way, no sir,
ours is a democratic country where all and everyone is entitled to due
process of law you did not accord me due process of law . . . .
(I sat down. . . . That's it. But what was his purpose? He made me
come in order to humiliate me because he wanted me arrested, he
wanted me imprisoned, but because he is ignorant of the law, he
ordered the BMJP. For God's sake, Mr. Tan, what's wrong with you,
Mr. Tan? Please read the law. What is your thinking? That when you
are a judge, you are also a dictator? No way, no sir, ours is a
democratic country where all and everyone is entitled to due process
of law you did not accord me due process of law. . . .)
TONY CONSING: So mopasaka kang disbarment, malaumon kita nga
maaksiyonan kini, with all this problem sa Korte Suprema.
(So you are filing a disbarment case? We hope that this be given
action with all the problems in the Supreme Court.)
Ethics-Chapter III 7
BAGABUYO : Dili ako mabalaka niana kay usa ka truck ang akong
jurisprudence, nga ang mga Huwes nga di mahibalo sa balaod
pagatangtangon gayod sa ilang pagka Huwes. . . . Apan unsa man
intawon ang balaod ang iyang gibasa niini nadunggan ko nga kini
kuno siya madjongero, mao bitaw na, madjong ang iyang guitunan?
(I am not worried because I have a truckload of jurisprudence that
judges who are ignorant of the law must be removed from the Bench.
But what law has he been reading? I heard that he is a mahjong
aficionado (mahjongero) and that is why he is studying mahjong.11
The trial court concluded that respondent, as a member of the bar and an
officer of the court, is duty bound to uphold the dignity and authority of the
court, and should not promote distrust in the administration of justice.
The trial court stated that it is empowered to suspend respondent from the
practice of law under Sec. 28, Rule 138 of the Rules of Court12 for any of the
causes mentioned in Sec. 2713 of the same Rule. Respondent was given the
opportunity to be heard, but he opted to be silent. Thus, it held that the
requirement of due process has been duly satisfied.
In accordance with the provisions of Sec. 29,14 Rule 138 and Sec. 9,15 Rule 139
of the Rules of Court, the RTC of Surigao City, Branch 29, transmitted to the
Office of the Bar Confidant the Statement of Facts of respondent's
suspension from the practice of law, dated July 14, 2005, together with the
order of suspension and other relevant documents.
In its Report dated January 4, 2006, the Office of the Bar Confidant found
that the article in the August 18, 2003 issue of the Mindanao Gold Star Daily,
which maligned the integrity and independence of the court and its officers,
and respondent's criticism of the trial court's Order dated November 12,
2002, which was aired in radio station DXKS, both in connection with Crim.
Case No. 5144, constitute grave violation of oath of office by respondent. It
stated that the requirement of due process was complied with when
respondent was given an opportunity to be heard, but respondent chose to
remain silent.
The Office of the Bar Confidant recommended the implementation of the trial
court's order of suspension dated February 8, 2004, and that respondent be
suspended from the practice of law for one year, with a stern warning that
the repetition of a similar offense will be dealt with more severely.
The Court approves the recommendation of the Office of the Bar Confidant. It
has been reiterated in Gonzaga v. Villanueva, Jr.16 that:
A lawyer may be disbarred or suspended for any violation of his
oath, a patent disregard of his duties, or an odious deportment
unbecoming an attorney. Among the grounds enumerated in Section
27, Rule 138 of the Rules of Court are deceit; malpractice; gross
misconduct in office; grossly immoral conduct; conviction of a crime
involving moral turpitude; any violation of the oath which he is
required to take before admission to the practice of law; willful
disobedience of any lawful order of a superior court; corrupt or
willful appearance as an attorney for a party to a case without
authority to do so. The grounds are not preclusive in nature even as
they are broad enough as to cover practically any kind of impropriety

that a lawyer does or commits in his professional career or in his
private life. A lawyer must at no time be wanting in probity and
moral fiber which are not only conditions precedent to his entrance
to the Bar, but are likewise essential demands for his continued
membership therein.
Lawyers are licensed officers of the courts who are empowered to appear,
prosecute and defend; and upon whom peculiar duties, responsibilities and
liabilities are devolved by law as a consequence.17 Membership in the bar
imposes upon them certain obligations.18 Canon 11 of the Code of
Professional Responsibility mandates a lawyer to "observe and maintain the
respect due to the courts and to judicial officers and [he] should insist on
similar conduct by others." Rule 11.05 of Canon 11 states that a lawyer "shall
submit grievances against a judge to the proper authorities only."
Respondent violated Rule 11.05 of Canon 11 when he admittedly caused the
holding of a press conference where he made statements against the Order
dated November 12, 2002 allowing the accused in Crim. Case No. 5144 to be
released on bail.
Respondent also violated Canon 11 when he indirectly stated that Judge Tan
was displaying judicial arrogance in the article entitled, Senior prosecutor
lambasts Surigao judge for allowing murder suspect to bail out, which
appeared in the August 18, 2003 issue of the Mindanao Gold Star Daily.
Respondent's statements in the article, which were made while Crim. Case No.
5144 was still pending in court, also violated Rule 13.02 of Canon 13, which
states that "a lawyer shall not make public statements in the media regarding
a pending case tending to arouse public opinion for or against a party."
In regard to the radio interview given to Tony Consing, respondent violated
Rule 11.05 of Canon 11 of the Code of Professional Responsibility for not
resorting to the proper authorities only for redress of his grievances against
Judge Tan. Respondent also violated Canon 11 for his disrespect of the court
and its officer when he stated that Judge Tan was ignorant of the law, that as
a mahjong aficionado, he was studying mahjong instead of studying the law,
and that he was a liar.
Respondent also violated the Lawyer's Oath, as he has sworn to "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."
As a senior state prosecutor and officer of the court, respondent should have
set the example of observing and maintaining the respect due to the courts
and to judicial officers. Montecillo v. Gica19 held:
It is the duty of the lawyer to maintain towards the courts a
respectful attitude. As an officer of the court, it is his duty to uphold
the dignity and authority of the court to which he owes fidelity,
according to the oath he has taken. Respect for the courts guarantees
the stability of our democratic institutions which, without such
respect, would be resting on a very shaky foundation.
The Court is not against lawyers raising grievances against erring judges but
the rules clearly provide for the proper venue and procedure for doing so,
precisely because respect for the institution must always be maintained.
Ethics-Chapter III 8
WHEREFORE, in view of the foregoing, Atty. Rogelio Z. Bagabuyo is found
guilty of violating Rule 11.05, Canon 11 and Rule 13.02, Canon 13 of the Code
of Professional Responsibility, and of violating the Lawyer's Oath, for which
he is SUSPENDED from the practice of law for one (1) year effective upon
finality of this Decision, with a STERN WARNING that the repetition of a
similar offense shall be dealt with more severely.
Let copies of this Decision be furnished the Office of the Bar Confidant to be
appended to respondent's personal record as an attorney, the Integrated Bar
of the Philippines, the Department of Justice, and all courts in the country for
their information and guidance.
No costs.
SO ORDERED.
Puno, Chief Justice Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio-Morales, Tinga, Chico-Nazario, Garcia,
Velasco, Jr., Nachura, Reyes, JJ., concur.
G.R. No. 79690-707 February 1, 1989
ENRIQUE A. ZALDIVAR, petitioner,
vs.
THE HONORABLE SANDIGANBAYAN and HONORABLE RAUL M.
GONZALEZ, claiming to be and acting as Tanodbayan-Ombudsman under
the 1987 Constitution, respondents.
G.R. No. 80578 February 1, 1989
ENRIQUE A. ZALDIVAR, petitioner,
vs.
HON. RAUL M. GONZALES, claiming to be and acting as Tanodbayan-
Ombudsman under the 1987 Constitution, respondent.
RESOLUTION
PER CURIAM:
We have examined carefully the lengthy and vigorously written Motion for
Reconsideration dated October 18, 1988 filed by counsel for respondent Raul
M. Gonzalez, relating to the per curiam Resolution of the Court dated
October 7, 1988. We have reviewed once more the Court's extended per
curiam Resolution, in the light of the argument adduced in the Motion for
Reconsideration, but must conclude that we find no sufficient basis for
modifying the conclusions and rulings embodied in that Resolution. The
Motion for Reconsideration sets forth copious quotations and references to
foreign texts which, however, whatever else they may depict, do not reflect
the law in this jurisdiction.
Nonetheless, it might be useful to develop further, in some measure, some of
the conclusions reached in the per curiam Resolution, addressing in the
process some of the "Ten (10) Legal Points for Reconsideration," made in the
Motion for Reconsideration.
1. In respondent's point A, it is claimed that it was error for
this Court "to charge respondent [with] indirect contempt
and convict him of direct contempt."

In the per curiam Resolution (page 50), the Court concluded that "respondent
Gonzalez is guilty both of contempt of court in facie curiae and of gross
misconduct as an officer of the court and member of the bar." The Court did
not use the phrase "in facie curiae" as a technical equivalent of "direct
contempt," though we are aware that courts in the United States have
sometimes used that phrase in speaking of "direct contempts' as "contempts
in the face of the courts." Rather, the court sought to convey that it regarded
the contumacious acts or statements (which were made both in a pleading
filed before the Court and in statements given to the media) and the
misconduct of respondent Gonzalez as serious acts flaunted in the face of
the Court and constituting a frontal assault upon the integrity of the Court
and, through the Court, the entire judicial system. What the Court would
stress is that it required respondent, in its Resolution dated 2 May 1988, to
explain "why he should not be punished for contempt of court and/or
subjected to administrative sanctions" and in respect of which, respondent
was heard and given the most ample opportunity to present all defenses,
arguments and evidence that he wanted to present for the consideration of
this Court. The Court did not summarily impose punishment upon the
respondent which it could have done under Section 1 of Rule 71 of the
Revised Rules of Court had it chosen to consider respondent's acts as
constituting "direct contempt."
2. In his point C, respondent's counsel argues that it was
"error for this Court to charge respondent under Rule 139 (b)
and not 139 of the Revised Rules of Court."
In its per curiam Resolution, the Court referred to Rule 139 (b) of the Revised
Rules of Court pointing out that:
[R]eference of complaints against attorneys either to the
Integrated Bar of the Philippines or to the Solicitor General is
not mandatory upon the Supreme Court such reference to
the Integrated Bar of the Philippines or to the Solicitor
General is certainly not an exclusive procedure under the
terms of Rule 139 (b) of the Revised Rules of Court,
especially where the charge consists of acts done before the
Supreme Court.
The above statement was made by the Court in response to respondent's
motion for referral of this case either to the Solicitor General or to the
Integrated Bar of the Philippines under Rule 139 (b). Otherwise, there would
have been no need to refer to Rule 139 (b). It is thus only necessary to point
out that under the old rule, Rule 139, referral to the Solicitor General was
similarly not an exclusive procedure and was not the only course of action
open to the Supreme Court. It is well to recall that under Section 1 (entitled
"Motion or complaint") of Rule 139, "Proceedings for the removal or
suspension of attorneys may be taken by the Supreme Court, (1) on its own
motion, or (2) upon the complaint under oath of another in writing"
(Parentheses supplied). The procedure described in Sections 2 et seq. of Rule
139 is the procedure provided for suspension or disbarment proceedings
initiated upon sworn complaint of another person, rather than a procedure
required for proceedings initiated by the Supreme Court on its own motion. It
Ethics-Chapter III 9
is inconceivable that the Supreme Court would initiate motu proprio
proceedings for which it did not find probable cause to proceed against an
attorney. Thus, there is no need to refer a case to the Solicitor General, which
referral is made "for investigation to determine if there is sufficient ground to
proceed with the prosecution of the respondent" (Section 3, Rule 139), where
the Court itself has initiated against the respondent. The Court may, of
course, refer a case to the Solicitor General if it feels that, in a particular case,
further factual investigation is needed. In the present case, as pointed out in
the per curiam Resolution of the Court (page 18), there was "no need for
further investigation of facts in the present case for it [was] not substantially
disputed by respondent Gonzalez that he uttered or wrote certain statements
attributed to him" and that "in any case, respondent has had the amplest
opportunity to present his defense: his defense is not that he did not make
the statements ascribed to him but that those statements give rise to no
liability on his part, having been made in the exercise of his freedom of
speech. The issues which thus need to be resolved here are issues of law and
of basic policy and the Court, not any other agency, is compelled to resolve
such issues."
In this connection, we note that the quotation in page 7 of the Motion for
Reconsideration is from a dissenting opinion of Mr. Justice Black in Green v.
United State. 1 It may be pointed out that the majority in Green v. United
States, through Mr. Justice Harlan, held, among other things, that: Federal
courts do not lack power to impose sentences in excess of one year for
criminal contempt; that criminal contempts are not subject to jury trial as a
matter of constitutional right; nor does the (US) Constitution require that
contempt subject to prison terms of more than one year be based on grand
jury indictments.
In his concurring opinion in the same case, Mr. Justice
Frankfurter said:
Whatever the conflicting views of scholars in construing
more or less dubious manuscripts of the Fourteenth Century,
what is indisputable is that from the foundation of the United
States the constitutionality of the power to punish for
contempt without the intervention of a jury has not been
doubted. The First Judiciary Act conferred such a power on
the federal courts in the very act of their establishment, 1
State 73, 83, and of the Judiciary Committee of eight that
reported the bill to the Senate, five member including the
chairman, Senator, later to be Chief Justice, Ellsworth, had
been delegates to the Constitutional Convention (Oliver
Ellsworth, Chairman, William Paterson, Caleb Strong, Ricard
Basett, William Few. 1 Annals of Cong 17). In the First
Congress itself no less than nineteen member including
Madison who contemporaneously introduced the Bill of
Rights, had been delegates to the Convention. And when an
abuse under this power manifested itself, and led Congress
to define more explicitly the summary power vested in the
courts, it did not remotely deny the existence of the power

but merely defined the conditions for its exercise more
clearly, in an Act "declaratory of the law concerning
contempts of court." Act of Mar. 2, 1831, 4 Stat 487.
xxxxxxxxx
Nor has the constitutionality of the power been doubted by
this Court throughout its existence . In at least two score cases
in this Court, not to mention the vast mass of decisions in the
lower federal courts, the power to punish summarily has been
accepted without question. ... 2
To say that a judge who punishes a contemnor judges his own cause, is
simplistic at best. The judge who finds himself compelled to exercise the
power to punish for contempt does so not really to avenge a wrong inflicted
upon his own person; rather he upholds and vindicates the authority, dignity
and integrity of the judicial institution and its claim to respectful behaviour
on the part of all persons who appears before it, and most especially from
those who are officers of the court.
3. In his point D, respondent counsel urges that it is error
"for this Court to apply the "visible tendency" rule rather
than the "clear and present danger" rule in disciplinary and
contempt charges."
The Court did not purport to announce a new doctrine of "visible tendency,"
it was, more modestly, simply paraphrasing Section 3 (d) of Rule 71 of the
Revised Rules of Court which penalizes a variety of contumacious conduct
including: "any improper conduct tending, directly or indirectly, to impede,
obstruct or degrade the administration of justice."
The "clear and present danger" doctrine invoked by respondent's counsel is
not a magic incantation which dissolves all problems and dispenses with
analysis and judgment in the testing of the legitimacy of claims to free
speech, and which compels a court to exonerate a defendant the moment the
doctrine is invoked, absent proof of impending apocalypse. The clear and
present danger" doctrine has been an accepted method for marking out the
appropriate limits of freedom of speech and of assembly in certain contexts.
It is not, however, the only test which has been recognized and applied by
courts. In Logunzad v. Vda. de Gonzales, 3 this Court, speaking through Mme.
Justice Melencio-Herrera said:
...The right of freedom of expression indeed, occupies a
preferred position in the "hierarchy of civil liberties"
(Philippine Blooming Mills Employees Organization v.
Philippine Blooming Mills Co., Inc., 51 SCRA 191 [1963]. It is
not, however, without limitations. As held in Gonzales v.
Commission on Elections, 27 SCRA 835, 858 [1960]:
"From the language of the specific constitutional provision, it
would appear that the right is not susceptible of any
limitation. No law may be passed abridging the freedom of
speech and of the press. The realities of life in a complex
society preclude however, a literal interpretation. Freedom of
expression is not an absolute. It would be too much to insist
that all times and under all circumstances it should remain
Ethics-Chapter III 10
unfettered and unrestrained. There are other societal values
that press for recognition."
The prevailing doctrine is that the clear and present danger
rule is such a limitation. Another criterion for permissible
limitation on freedom of speech and of the press, which
includes such vehicles of the mass media as radio, television
and the movies, is the "balancing-of-interests test" (Chief
Justice Enrique M. Fernando on the Bill of Rights, 1970 ed., p.
79). The principle "requires a court to take conscious and
detailed consideration of the interplay of interests observable
in a given situation or type of situation (Separate Opinion of
the late Chief Justice Castro in Gonzales v. Commission on
Elections, supra, p. 899). (Emphasis Supplied) 4
Under either the "clear and present danger" test or the "balancing-of-interest
test," we believe that the statements here made by respondent Gonzalez are
of such a nature and were made in such a manner and under such
circumstances, as to transcend the permissible limits of free speech. This
conclusion was implicit in the per curiam Resolution of October 7, 1988. It is
important to point out that the "substantive evil" which the Supreme Court
has a right and a duty to prevent does not, in the instant case, relate to
threats of physical disorder or overt violence or similar disruptions of public
order. 5 What is here at stake is the authority of the Supreme Court to
confront and prevent a "substantive evil" consisting not only of the
obstruction of a free and fair hearing of a particular case but also the
avoidance of the broader evil of the degradation of the judicial system of a
country and the destruction of the standards of professional conduct
required from members of the bar and officers of the courts. The
"substantive evil" here involved, in other words, is not as palpable as a threat
of public disorder or rioting but is certainly no less deleterious and more far
reaching in its implications for society.
4. In his point H, respondent's counsel argues that it is error
"for this Court to hold that intent is irrelevant in charges of
misconduct." What the Court actually said on this point was:
Respondent Gonzalez disclaims an intent to attack and
denigrate the Court. The subjectivities of the respondent are
irrelevant so far as characterization of his conduct or
misconduct is concerned. He will not, however, be allowed to
disclaim the natural and plain import of his words and acts.
It is, upon the other hand, not irrelevant to point out that the
respondent offered no apology in his two (2) explanations
and exhibited no repentance (Resolution, p. 7; footnotes
omitted).
The actual subjectivities of the respondent are irrelevant because such
subjectivities (understood as pyschological phenomena) cannot be
ascertained and reached by the processes of this Court. Human intent can
only be shown derivatively and implied from an examination of acts and
statements. Thus, what the Court was saying was that respondent's
disclaimer of an intent to attack and denigrate the Court, cannot prevail over

the plain import of what he did say and do. Respondent cannot negate the
clear import of his acts and statements by simply pleading a secret intent or
state of mind incompatible with those acts or statements. It is scarcely open
to dispute that, e.g., one accused of homicide cannot successfully deny his
criminal intent by simply asserting that while he may have inserted a knife
between the victim's ribs, he actually acted from high motives and kind
feelings for the latter.
5 In his point 1, respondent's counsel argues that it is error
"for this Court to punish respondent for contempt of court
for out of court publications."
Respondent's counsel asks this Court to follow what he presents as alleged
modern trends in the United Kingdom and in the United States concerning
the law of contempt. We are, however, unable to regard the texts that he cites
as binding or persuasive in our jurisdiction. The Court went to some length to
document the state of our case law on this matter in its per curiam
Resolution. There is nothing in the circumstances of this case that would
suggest to this Court that that case law, which has been followed for at least
half a century or so, ought to be reversed.
6. In his point J, respondent's counsel pleads that the
imposition of indefinite suspension from the practice of law
constitutes "cruel, degrading or inhuman punishment". The
Court finds it difficult to consider this a substantial
constitutional argument. The indefiniteness of the
respondent's suspension, far from being "cruel" or
"degrading" or "inhuman," has the effect of placing, as it
were, the key to the restoration of his rights and privileges as
a lawyer in his own hands. That sanction has the effect of
giving respondent the chance to purge himself in his own
good time of his contempt and misconduct by
acknowledging such misconduct, exhibiting appropriate
repentance and demonstrating his willingness and capacity
to live up to the exacting standards of conduct rightly
demanded from every member of the bar and officer of the
courts.
ACCORDINGLY, the Court Resolved to DENY the Motion for Reconsideration
for lack of merit. The denial is FINAL.
The Court also NOTED the Ex-Parte Manifestation and Motion, dated October
25, 1988 and the Supplemental Manifestation, dated October 27, 1988, filed
by respondent
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano,
Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea and
Regalado, JJ., concur.
G.R. No. 102781. April 22, 1993.
BONIFACIO SANZ MACEDA, Presiding Judge, Branch 12, Regional Trial
Court, Antique, petitioner,
vs.
Ethics-Chapter III 11
HON. OMBUDSMAN CONRADO M. VASQUEZ AND ATTY. NAPOLEON A.
ABIERA, respondents.
Bonifacio Sanz Maceda for and in his own behalf.
Public Attorney's Office for private respondent.
SYLLABUS
1. REMEDIAL LAW; JURISDICTION; OFFICE OF THE OMBUDSMAN HAS
JURISDICTION TO INVESTIGATE OFFENSE COMMITTED BY JUDGE WHETHER
OR NOT OFFENSE RELATES TO OFFICIAL DUTIES; REASON. Petitioner also
contends that the Ombudsman has no jurisdiction over said cases despite
this Court's ruling in Orap vs. Sandiganbayan, since the offense charged arose
from the judge's performance of his official duties, which is under the control
and supervision of the Supreme Court . . . The Court disagrees with the first
part of petitioner's basic argument. There is nothing in the decision in Orap
that would restrict it only to offenses committed by a judge unrelated to his
official duties. A judge who falsifies his certificate of service is
administratively liable to the Supreme Court for serious misconduct and
inefficiency under Section 1, Rule 140 of the Rules of Court, and criminally
liable to the State under the Revised Penal Code for his felonious act.
2. ID.; ID.; ID.; JURISDICTION TO INVESTIGATE OFFENSE RELATED TO
OFFICIAL DUTIES SUBJECT TO PRIOR ADMINISTRATIVE ACTION TAKEN
AGAINST JUDGE BY SUPREME COURT; REASON. However, We agree with
petitioner that in the absence of any administrative action taken against him
by this Court with regard to his certificates of service, the investigation being
conducted by the Ombudsman encroaches into the Court's power of
administrative supervision over all courts and its personnel, in violation of
the doctrine of separation of powers.
3. ID.; ID.; ID.; ID.; PROCEDURE TO BE OBSERVED BY OMBUDSMAN
REGARDING COMPLAINT AGAINST JUDGE OR OTHER COURT EMPLOYEE;
PURPOSE. Thus, the Ombudsman should first refer the matter of
petitioner's certificates of service to this Court for determination of whether
said certificates reflected the true status of his pending case load, as the
Court has the necessary records to make such a determination . . . In fine,
where a criminal complaint against a judge or other court employee arises
from their administrative duties, the Ombudsman must defer action on said
complaint and refer the same to this Court for determination whether said
judge or court employee had acted within the scope of their administrative
duties.
4. ID.; ID.; ID.; ID.; OMBUDSMAN CANNOT SUBPOENA SUPREME COURT AND
ITS PERSONNEL; REASON. The Ombudsman cannot compel this Court, as
one of the three branches of government, to submit its records, or to allow its
personnel to testify on this matter, as suggested by public respondent Abiera
in his affidavit-complaint. The rationale for the foregoing pronouncement is
evident in this case. Administratively, the question before Us is this: should a
judge, having been granted by this Court an extension of time to decide cases
before him, report these cases in his certificate of service? As this question
had not yet been raised with, much less resolved by, this Court, how could
the Ombudsman resolve the present criminal complaint that requires the
resolution of said question?

DECISION
NOCON, J p:
The issue in this petition for certiorari with prayer for preliminary mandatory
injunction and/or restraining order is whether the Office of the Ombudsman
could entertain a criminal complaint for the alleged falsification of a judge's
certification submitted to the Supreme Court, and assuming that it can,
whether a referral should be made first to the Supreme Court.
Petitioner Bonifacio Sanz Maceda, Presiding Judge of Branch 12 of the
Regional Trial Court of Antique, seeks the review of the following orders of
the Office of the Ombudsman: (1) the Order dated September 18, 1991
denying the ex-parte motion to refer to the Supreme Court filed by petitioner;
and (2) the Order dated November 22, 1951 denying petitioner's motion for
reconsideration and directing petitioner to file his counter-affidavit and other
controverting evidences.
In his affidavit-complaint dated April 18, 1991 filed before the Office of the
Ombudsman, respondent Napoleon A. Abiera of the Public Attorney's Office
alleged that petitioner had falsified his Certificate of Service 1 dated February
6, 1989, by certifying "that all civil and criminal cases which have been
submitted for decision or determination for a period of 90 days have been
determined and decided on or before January 31, 1998," when in truth and in
fact, petitioner knew that no decision had been rendered in five (5) civil and
ten (10) criminal cases that have been submitted for decision. Respondent
Abiera further alleged that petitioner similarly falsified his certificates of
service for the months of February, April, May, June, July and August, all in
1989; and the months beginning January up to September 1990, or for a total
of seventeen (17) months.
On the other hand, petitioner contends that he had been granted by this
Court an extension of ninety (90) days to decide the aforementioned cases.
Petitioner also contends that the Ombudsman has no jurisdiction over said
case despite this Court's ruling in Orap vs. Sandiganbayan, 2 since the offense
charged arose from the judge's performance of his official duties, which is
under the control and supervision of the Supreme Court. Furthermore, the
investigation of the Ombudsman constitutes an encroachment into the
Supreme Court's constitutional duty of supervision over all inferior courts.
The Court disagrees with the first Part of petitioner's basic argument. There
is nothing in the decision in Orap that would restrict it only to offenses
committed by a judge unrelated to his official duties. A judge who falsifies
his certificate of service is administratively liable to the Supreme Court for
serious misconduct and inefficiency under Section 1, Rule 140 of the Rules of
Court, and criminally liable to the State under the Revised Penal Code for his
felonious act.
However, We agree with petitioner that in the absence of any administrative
action taken against him by this Court with regard to his certificates of
service, the investigation being conducted by the Ombudsman encroaches
into the Court's power of administrative supervision over all courts and its
personnel, in violation of the doctrine of separation of powers.
Article VIII, section 6 of the 1987 Constitution exclusively vests in the
Supreme Court administrative supervision over all courts and court
Ethics-Chapter III 12
personnel, from the Presiding Justice of the Court of Appeals down to the
lowest municipal trial court clerk. By virtue of this power, it is only the
Supreme Court that can oversee the judges' and court personnel's compliance
with all laws, and take the proper administrative action against them if they
commit any violation thereof. No other branch of government may intrude
into this power, without running afoul of the doctrine of separation of
powers.
The Ombudsman cannot justify its investigation of petitioner on the powers
granted to it by the Constitution, 3 for such a justification not only runs
counter to the specific mandate of the Constitution granting supervisory
powers to the Supreme Court over all courts and their personnel, but likewise
undermines the independence of the judiciary.
Thus, the Ombudsman should first refer the matter of petitioner's certificates
of service to this Court for determination of whether said certificates
reflected the true status of his pending case load, as the Court has the
necessary records to make such a determination. The Ombudsman cannot
compel this Court, as one of the three branches of government, to submit its
records, or to allow its personnel to testify on this matter, as suggested by
public respondent Abiera in his affidavit-complaint. 4
The rationale for the foregoing pronouncement is evident in this case.
Administratively. the question before Us is this: should a judge, having been
granted by this Court an extension of time to decide cases before him, report
these cases in his certificate of service? As this question had not yet been
raised with, much less resolved by, this Court. how could the Ombudsman
resolve the present criminal complaint that requires the resolution of said
question?
In fine, where a criminal complaint against a Judge or other court employee
arises from their administrative duties, the Ombudsman must defer action on
said complaint and refer the same to this Court for determination whether
said Judge or court employee had acted within the scope of their
administrative duties.
WHEREFORE, the instant petition is hereby GRANTED. The Ombudsman is
hereby directed to dismiss the complaint filed by public respondent Atty.
Napoleon A. Abiera and to refer the same to this Court for appropriate action.
SO ORDERED.
Narvasa, C .J ., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Regalado, Davide,
Jr., Romero, Bellosillo, Melo and Quiason, JJ ., concur.
[G.R. No. 133090. January 19, 2001]
REXIE EFREN A. BUGARING AND ROYAL BECHTEL BUILDERS, INC.,
petitioners, vs. HON. DOLORES S. ESPAOL, in her capacity as Presiding
Judge of the Regional Trial Court Branch 90, Imus, Cavite, respondent.
DECISION
DE LEON, JR., J.:
Before us is a petition for review on certiorari of the Decision dated March 6,
1998 of the Court of Appeals i[1] affirming the decision of the Regional Trial

Court of Cavite, Branch 90, Imus, Cavite, declaring petitioner Rexie Efren A.
Bugaring guilty in direct contempt of court.
The incident subject of the petition occurred during a hearing held on
December 5, 1996 of Civil Case No. 1266-96 entitled Royal Becthel [2]
Builders, Inc. vs. Spouses Luis Alvaran and Beatriz Alvaran, et al., for
Annulment of Sale and Certificates of Title, Specific Performance and
Damages with Prayer for Preliminary Injunction and/or Temporary
Restraining Order in the sala of respondent judge Dolores S. Espaol of the
Regional Trial Court of Cavite, Branch 90, Imus, Cavite.
Pursuant to a motion filed by the previous counsel of Royal Bechtel Builders,
Inc., the trial court issued an order on February 27, 1996 directing the
Register of Deeds of the Province of Cavite to annotate at the back of certain
certificates of title a notice of lis pendens. Before the Register of Deeds of the
Province of Cavite could comply with said order, the defendant Spouses
Alvaran on April 15, 1996, filed a motion to cancel lis pendens. On July 19,
1996, Petitioner, the newly appointed counsel of Royal Bechtel Builders, Inc.,
filed an opposition to the motion to cancel lis pendens. On August 16, 1996,
the motion to cancel lis pendens was granted by the court. Petitioner filed a
motion for reconsideration, which was opposed by the defendants. On
November 5, 1996, petitioner filed an Urgent Motion to Resolve, and on
November 6, 1996, filed a Rejoinder to Opposition and a Motion for
Contempt of Court. ii[3]
During the hearing of the motion for contempt of court held on December 5,
1996, the following incident transpired:
ATTY. BUGARING: For the plaintiff, your Honor, we are ready.
ATTY CORDERO: Same appearance for the defendant, your Honor.
ATTY. BUGARING: Your Honor please, we are ready with respect to the
prosecution of our motion for contempt, your Honor : May we know from the
record if the Register of Deeds is properly notified for todays hearing.
COURT: Will you call on the Register of Deeds.
INTERPRETER: Atty. Diosdado Concepcion, He is here, your Honor.
ATTY. BUGARING: We are ready, your Honor.
COURT: There is a motion for contempt in connection with the order of this
Court which directed your office to register lis pendens of the complaint in
connection with this case of Royal Becthel Builder, Inc. versus spouses Luis
Alvaran and Beatriz Alvaran, et al.
ATTY. CONCEPCION: Your Honor, I just received this morning at ten o clock
[in the morning] the subpoena.
ATTY. BUGARING: May we put it on record that as early as November 6, 1996,
the Office of the Register of Deeds was furnished with a copy of our motion,
your Honor please, and the record will bear it out. Until now they did not file
any answer, opposition or pleadings with respect to this motion.
ATTY. CONCEPCION: Well I was not informed because I am not the Register
of Deeds. I am only the Deputy Register of Deeds and I was not informed by
the receiving clerk of our office regarding this case. As a matter of fact I was
surprised when I received this morning the subpoena, your Honor.
ATTY. BUGARING: Your Honor please, may we put that on record that the
manifestation of the respondent that he was not informed.
Ethics-Chapter III 13
COURT: That is recorded. This is a Court of record and everything that you
say here is recorded.
ATTY. BUGARING: Yes your Honor please, we know that but we want to be
specific because we will be [filing] a case against this receiving clerk who did
not [inform] him your Honor please, with this manifestation of the Deputy of
the Register of Deeds that is irregularity in the performance of the official
duty of the clerk not to inform the parties concerned.
COURT: Counsel, the Court would like to find out who this fellow who is
taking the video recording at this proceedings. There is no permission from
this Court that such proceedings should be taken.
ATTY. BUGARING: Your Honor, my Assistant. I did not advise him to take a
video he just accompanied me this morning.
COURT: Right, but the video recording is prepared process and you should
secure the permission of this Court.
ATTY. BUGARING: Actually, I did not instruct him to take some video tape.
COURT: Why would he be bringing camera if you did not give him the go
signal that shots should be done.
ATTY. BUGARING: This Court should not presume that, your Honor please,
we just came from an occasion last night and I am not yet come home, your
Honor please. I could prove your Honor please, that the contents of that tape
is other matters your Honor please. I was just surprised why he took video
tape your Honor please, that we ask the apology of this Court if that offend
this Court your Honor please.
COURT: It is not offending because this is a public proceedings but the
necessary authority or permission should be secured.
ATTY. BUGARING: In fact I instructed him to go out, your Honor.
COURT: After the court have noticed that he is taking a video tape.
ATTY. BUGARING: Yes, your Honor, in fact that is not my personal problem
your Honor please, that is personal to that guy your Honor please if this
representation is being .
COURT: That is very shallow, dont give that alibi.
ATTY. BUGARING: At any rate, your Honor please, we are going to mark our
documentary evidence as part of our motion for contempt, your Honor
please.
COURT: What has the Register of Deeds got to say with this matter?
ATTY. CONCEPCION: Well as I have said before, I have not received any
motion regarding this contempt you are talking. I am willing now to testify.
ATTY. BUGARING: Your Honor I am still of the prosecution stage, it is not yet
the defense. This is a criminal proceedings, contempt proceedings is a
criminal.
ATTY. CONCEPCION: Your Honor please, may I ask for the assistance from
the Fiscal.
COURT: If this is going to proceed, we need the presence of a Fiscal or a
counsel for the Register of Deeds.
ATTY. CONCEPCION: Can I appoint an outside lawyer not a Fiscal but a
private counsel, your Honor.
COURT: That is at your pleasure. The Court will consider that you should be
amply represented.

ATTY. CONCEPCION: As a matter of fact I have a lawyer here, Atty. Barzaga if
he is willing
ATTY. BARZAGA[4] : Yes, your Honor, I will just review the records.
ATTY. BUGARING: Anyway your Honor please, I will not yet present my
witness but I will just mark our documentary exhibits which are part of the
record of the case and thereafter your Honor please.
COURT: You wait for a minute counsel because there is a preparation being
done by newly appointed counsel of the respondent, Atty. Barzaga is
considered as the privately hired counsel of the register of deeds and the
respondent of this contempt proceedings. How much time do you need to go
over the record of this case so that we can call the other case in the
meanwhile.
ATTY. BARZAGA: Second call, your Honor.
------------------------------------------------------------
-------------------
COURT: Are you ready Atty. Barzaga?
ATTY. BARZAGA: Yes, your Honor. Well actually your Honor, after reviewing
the record of the case your Honor, I noticed that the motion for contempt of
Court was filed on November 6, 1966 and in paragraph 6 thereof, your Honor
it is stated that, the record of the case shows up to the filing of this motion,
the Register as well as the Deputy Register Diosdado Concepcion of the Office
of the Register of Deeds of the Province of Cavite, did not comply with the
Court Orders dated February 27, 1996, March 29, 1996, respectively.
However, your Honor, Atty. Diosdado Concepcion has shown to me a letter
coming from Atty. Efren A. Bugaring dated September 18, 1996 addressed to
the Register regarding this notice of Lis Pendens pertaining to TCT Nos. T-
519248, 519249 and 519250 and this letter request, your Honor for the
annotation of the lis pendens clearly shows that it has been already entered
in the book of primary entry. We would like also to invite the attention of the
Hon. Court that the Motion for Contempt of Court was filed on November 6,
1996. The letter for the annotation of the lis pendens was made by the
counsel for the plaintiff only on September 18, 1996, your Honor. However,
your Honor, as early as August 16, 1996 an Order has already been issued by
the Hon. Court reading as follows, Wherefore in view of the above, the motion
of the defendant is GRANTED and the Register of Deeds of the Province of
Cavite, is hereby directed to CANCEL the notice of lis pendens annotated at
the back of Certificate of Title Nos. 519248, 51949 (sic) and 51950 (sic).
ATTY. BUGARING: Your Honor please, may we proceed your Honor, will first
mark our documentary evidence.
COURT: You wait until the Court allows you to do what you want to do, okay.
The counsel has just made manifestation, he has not prayed for anything. So
let us wait until he is finished and then wait for the direction of this Court
what to do to have an orderly proceedings in this case.
ATTY. BARZAGA: Considering your Honor, that the issues appear to be a little
bit complicated your Honor, considering that the order regarding the
annotation of the lis pendens has already been revoked by the Hon. Court
your Honor, we just request that we be given a period of ten days from today
Ethics-Chapter III 14
your Honor, within which to submit our formal written opposition your
Honor.
COURT: Counsel, will you direct your attention to the manifestation filed
earlier by Atty. Tutaan in connection with the refusal of the Register of Deeds
to annotate the lis pendens because of certain reasons. According to the
manifestation of Atty. Tutaan and it is appearing in the earlier part of the
record of this case, the reason for that is because there was a pending
subdivision plan, it is so stated. I think it was dated March, 1996 : May I have
the record please.
ATTY. BARZAGA: Yes, your Honor.
COURT: This Court would like to be enlightened with respect to that matter.
ATTY. BARZAGA: Well, according to Atty. Diosdado Concepcion he could
already explain this, your Honor.
COURT: Have it properly addressed as part of the manifestation so that this
court can be guided accordingly. Because this Court believes that the root of
the matter started from that. After the submission of the . what are you
suppose to submit?
ATTY. BARZAGA: Comment your Honor, on the motion to cite Atty. Diosdado
Concepcion in contempt of Court.
COURT: After the submission of the Comment and furnishing a copy of the
comment to the counsel for the plaintiff, this Court is going to give the
counsel for the plaintiff an equal time within which to submit his reply.
ATTY. BUGARING: Your Honor please, it is the position of this representation
your Honor please, that we will be marking first our documentary evidence
because this is set for hearing for today, your Honor please.
COURT: If you are going to mark your evidence and they do not have their
comment yet what are we going to receive as evidence.
ATTY. BUGARING: If your Honor please
COURT: Will you listen to the Court and just do whatever you have to do after
the submission of the comment.
ATTY. BUGARING: I am listening, your Honor please, but the record will show
that the motion for contempt was copy furnished with the Register of Deeds
and Diosdado Concepcion.
COURT: Precisely, if you are listening then you will get what the Court would
want to do. This should be an orderly proceedings and considering that this
is a Court of record the comment has to be in first then in your reply you can
submit your evidence to rebut the argument that is going to be put up by the
respondent and so we will be able to hear the case smoothly.
ATTY. BUGARING: My point here your Honor please, is that the respondent
had been long time furnished of this contempt proceedings. With a copy of
the motion they should have filed it in due time in accordance with the rules
and because it is scheduled for trial, we are ready to mark our evidence and
present to this Court, your Honor.
COURT: (Banging the gavel) Will you listen.
ATTY. BUGARING: I am listening, your Honor.
COURT: And this Court declares that you are out of order.

ATTY. BUGARING: Well, if that is the contention of the Court your Honor
please, we are all officers of the Court, your Honor, please, we have also ----
and we know also our procedure, your Honor.
COURT: If you know your procedure then you follow the procedure of the
Court first and then do whatever you want.
ATTY. BUGARING: Yes, your Honor please, because we could feel the
antagonistic approach of the Court to this representation ever since I
appeared your Honor please and I put on record that I will be filing an
inhibition to this Hon. Court.
COURT: Do that right away. (Banging the gavel)
ATTY. BUGARING: Because we could not find any sort of justice in town.
COURT: Do that right away.
ATTY. BUGARING: We are ready to present our witness and we are deprive to
present our witness.
COURT: You have presented a witness and it was an adverse witness that was
presented.
ATTY. BUGARING: I did not.
COURT: With respect to this, the procedure of the Court is for the respondent
to file his comment.
ATTY. BUGARING: Well your Honor please, at this point in time I dont want to
comment on anything but I reserve my right to inhibit this Honorable Court
before trying this case.
COURT: You can do whatever you want.
ATTY. BUGARING: Yes, your Honor, that is our prerogative your Honor.
COURT: As far as this Court is concerned it is going to follow the rules.
ATTY. BUGARING: Yes, your Honor, we know all the rules.
COURT: Yes, you know your rules thats why you are putting the cart ahead of
the horse.
ATTY. BUGARING: No your Honor, Ive been challenged by this Court that I
know better than this Court. Modestly (sic) aside your Honor please, Ive been
winning in many certiorari cases, your Honor.
COURT: Okay, okay, do that, do that. I am going to cite you for contempt of
Court. (Banging the gavel) You call the police and I am going to send this
lawyer in jail. (Turning to the Sheriff)
ATTY. BUGARING: I am just manifesting and arguing in favor of my client
your Honor please.
COURT: You have been given enough time and you have been abusing the
discretion of this Court.
ATTY. BUGARING: I am very sorry your Honor, if that is the appreciation of
the Court but this is one way I am protecting my client, your Honor.
COURT: That is not the way to protect your client that is an abuse of the
discretion of this Court. (Turning to the Sheriff) Will you see to it that this
guy is put in jail. (pp. 29-42. Rollo)
Hence, in an Order dated December 5, 1996, Judge Espaol cited petitioner in
direct contempt of court, thus:
During the hearing of this case, plaintiffs and counsel were present together
with one (1) operating a video camera who was taking pictures of the
proceedings of the case while counsel, Atty. Rexie Efren Bugaring was making
Ethics-Chapter III 15
manifestation to the effect that he was ready to mark his documentary
evidence pursuant to his Motion to cite (in contempt of court) the Deputy
Register of Deeds of Cavite, Diosdado Concepcion.
The Court called the attention of said counsel who explained that he did not
cause the appearance of the cameraman to take pictures, however, he
admitted that they came from a function, and that was the reason why the
said cameraman was in tow with him and the plaintiffs. Notwithstanding the
flimsy explanation given, the counsel sent out the cameraman after the Court
took exception to the fact that although the proceedings are open to the
public and that it being a court of record, and since its permission was not
sought, such situation was an abuse of discretion of the Court.
When the respondent, Deputy Register of Deeds Concepcion manifested that
he needed the services of counsel and right then and there appointed Atty.
Elpidio Barzaga to represent him, the case was allowed to be called again. On
the second call, Atty. Bugaring started to insist that he be allowed to mark
and present his documentary evidence in spite of the fact that Atty. Barzaga
was still manifesting that he be allowed to submit a written pleading for his
client, considering that the Motion has so many ramifications and the issues
are complicated.
At this point, Atty. Bugaring was insisting that he be allowed to mark his
documentary evidence and was raring to argue as in fact he was already
perorating despite the fact that Atty. Barzaga has not yet finished with his
manifestation. As Atty. Bugaring appears to disregard orderly procedure, the
Court directed him to listen and wait for the ruling of the Court for an
orderly proceeding.
While claiming that he was listening, he would speak up anytime he felt like
doing so. Thus, the Court declared him out of order, at which point, Atty.
Bugaring flared up and uttered words insulting the Court; such as: that he
knows better than the latter as he has won all his cases of certiorari in the
appellate Courts, that he knows better the Rules of Court; that he was going
to move for the inhibition of the Presiding Judge for allegedly being
antagonistic to his client, and other invectives were hurled to the discredit of
the Court.
Thus, in open court, Atty. Bugaring was declared in direct contempt and
order the Courts sheriff to arrest and place him under detention.
WHEREFORE, in view of the foregoing and the fact that Atty. Rexie Efren
Bugaring committed an open defiance, even challenging the Court in a
disrespectful, arrogant, and contumacious manner, he is declared in direct
contempt of Court and is sentenced to three (3) days imprisonment and
payment of a fine of P3,000.00. His detention shall commence immediately at
the Municipal Jail of Imus, Cavite.[5]
Pursuant to said Order, the petitioner served his three (3) day sentence at the
Imus Municipal Jail, and paid the fine of P3,000.00. [6]
While serving the first day of his sentence on December 5, 1996, petitioner
filed a motion for reconsideration of the Order citing him in direct contempt
of court. The next day, December 6, 1996, petitioner filed another motion
praying for the resolution of his motion for reconsideration. Both motions
were never resolved and petitioner was released on December 8, 1996. [7]

To clear his name in the legal circle and the general public, petitioner filed a
petition before the Court of Appeals praying for the annulment of the Order
dated December 5, 1996 citing him in direct contempt of court and the
reimbursement of the fine of P3,000.00 on grounds that respondent Judge
Dolores S. Espaol had no factual and legal basis in citing him in direct
contempt of court, and that said Order was null and void for being in
violation of the Constitution and other pertinent laws and jurisprudence. [8]
The Court of Appeals found that from a thorough reading of the transcript of
stenographic notes of the hearing held on December 5, 1996, it was obvious
that the petitioner was indeed arrogant, at times impertinent, too
argumentative, to the extent of being disrespectful, annoying and sarcastic
towards the court. iii[9] It affirmed the order of the respondent judge, but
found that the fine of P3,000.00 exceeded the limit of P2,000.00 prescribed
by the Rules of Court, [10] and ordered the excess of P1,000.00 returned to
petitioner. On March 6, 1998, it rendered judgment, the dispositive portion of
which reads:
WHEREFORE, the petition is hereby DISMISSED for lack of merit and the
assailed order dated December 5, 1996 issued by the trial court is hereby
AFFIRMED with the modification that the excess fine of P1,000.00 is
ORDERED RETURNED to the petitioner.
Before us, petitioner ascribes to the Court of Appeals this lone error:
THE APPELLATE COURT COMMITTED A REVERSIBLE ERROR IN AFFIRMING
THE ASSAILED ORDER OF THE TRIAL COURT WHICH TO PETITIONERS
SUBMISSIONS SMACKS OF OPPRESSION AND ABUSE OF AUTHORITY, HENCE
IT COMMITTED A GRAVE ERROR OF LAW IN ITS QUESTIONED DECISION.[11]
Petitioner insists that a careful examination of the transcript of stenographic
notes of the subject proceedings would reveal that the contempt order issued
by respondent judge had no factual and legal basis. It would also show that
he was polite and respectful towards the court as he always addressed the
court with the phrase your honor please.
We disagree.
Section 1, Rule 71 of the Rules of Court as amended by Administrative
Circular No. 22-95 provides:
Direct contempt punished summarily. - A person guilty of misbehavior in the
presence of or so near a court or judge as to obstruct or interrupt the
proceedings before the same, including disrespect toward the court or judge,
offensive personalities toward others, or refusal to be sworn or to answer as
a witness, or to subscribe an affidavit or deposition when lawfully required to
do so, may be summarily adjudged in contempt by such court or judge and
punished by a fine not exceeding two thousand pesos or imprisonment not
exceeding ten (10) days, or both, if it be a superior court, or a judge thereof,
or by a fine not exceeding two hundred pesos or imprisonment not exceeding
one (1) day, or both, if it be an inferior court.
We agree with the statement of the Court of Appeals that petitioners alleged
deference to the trial court in consistently addressing the respondent judge
as your Honor please throughout the proceedings is belied by his behavior
therein:
Ethics-Chapter III 16
1. the veiled threat to file a petition for certiorari against the trial court (pp.
14-15, tsn, December 5, 1996; pp. 41-42, Rollo) is contrary to Rule 11.03,
Canon 11 of the Code of Professional Responsibility which mandates that a
lawyer shall abstain from scandalous, offensive or menacing language or
behavior before the Courts.
2. the hurled uncalled for accusation that the respondent judge was partial in
favor of the other party (pp. 13-14, tsn, December 5, 1996; pp. 40-41, Rollo) is
against Rule 11.04, Canon 11 of the Code of Professional Responsibility
which enjoins lawyers from attributing to a judge motives not supported by
the record or have no materiality to the case.
3. behaving without due regard to the trial courts order to maintain order in
the proceedings (pp. 9-13, tsn, December 5, 1996; pp. 36-40, Rollo) is in utter
disregard to Canon 1 of the Canons of Professional Ethics which makes it a
lawyers duty to maintain towards the courts (1) respectful attitude in order to
maintain its importance in the administration of justice, and Canon 11 of the
Code of Professional Responsibility which mandates lawyers to observe and
maintain the respect due to the Courts and to judicial officers and should
insist on similar conduct by others.
4. behaving without due regard or deference to his fellow counsel who at the
time he was making representations in behalf of the other party, was rudely
interrupted by the petitioner and was not allowed to further put a word in
edgewise (pp. 7-13, tsn, December 5, 1996; pp. 34-39, Rollo) is violative of
Canon 8 of the Code of Professional Responsibility and Canon 22 of the
Canons of Professional Ethics which obliges a lawyer to conduct himself with
courtesy, fairness and candor toward his professional colleagues, and
5. the refusal of the petitioner to allow the Registrar of Deeds of the Province
of Cavite, through counsel, to exercise his right to be heard (Ibid) is against
Section 1 of Article III, 1997 Constitution on the right to due process of law,
Canon 18 of the Canons of Professional Ethics which mandates a lawyer to
always treat an adverse witness with fairness and due consideration, and
Canon 12 of Code of Professional Responsibility which insists on a lawyer to
exert every effort and consider it his duty to assist in the speedy and efficient
administration of justice.
The Court cannot therefore help but notice the sarcasm in the petitioners use
of the phrase your honor please. For, after using said phrase he manifested
utter disrespect to the court in his subsequent utterances. Surely this
behavior from an officer of the Court cannot and should not be
countenanced, if proper decorum is to be observed and maintained during
court proceedings.[12]
Indeed, the conduct of petitioner in persisting to have his documentary
evidence marked to the extent of interrupting the opposing counsel and the
court showed disrespect to said counsel and the court, was defiant of the
courts system for an orderly proceeding, and obstructed the administration
of justice. The power to punish for contempt is inherent in all courts and is
essential to the preservation of order in judicial proceedings and to the
enforcement of judgments, orders, and mandates of the court, and
consequently, to the due administration of justice. iv[13] Direct contempt is
committed in the presence of or so near a court or judge, as in the case at

bar, and can be punished summarily without hearing. [14] Hence, petitioner
cannot claim that there was irregularity in the actuation of respondent judge
in issuing the contempt order inside her chamber without giving the
petitioner the opportunity to defend himself or make an immediate
reconsideration. The records show that petitioner was cited in contempt of
court during the hearing in the sala of respondent judge, and he even filed a
motion for reconsideration of the contempt order on the same day. v[15]
Petitioner argued that while it might appear that he was carried by his
emotions in espousing the case of his client - by persisting to have his
documentary evidence marked despite the respondent judges contrary order
- he did so in the honest belief that he was bound to protect the interest of
his client to the best of his ability and with utmost diligence.
The Court of Appeals aptly stated:
But a lawyer should not be carried away in espousing his clients cause
(Buenaseda v. Flavier, 226 SCRA 645, 656). He should not forget that he is an
officer of the court, bound to exert every effort and placed under duty, to
assist in the speedy and efficient administration of justice pursuant to Canon
12, Canons of Professional Responsibility (Gomez v. Presiding Judge, RTC, Br.
15, Ozamis City, 249 SCRA 432, 439). He should not , therefore, misuse the
rules of procedure to defeat the ends of justice per Rule 10.03. Canon 10 of
the Canons of Professional Responsibility, or unduly delay a case, impede the
execution of a judgment or misuse court processes, in accordance with Rule
12.04, Canon 12 of the same Canons (Ibid).
Lawyers should be reminded that their primary duty is to assist the courts in
the administration of justice. Any conduct which tends to delay, impede or
obstruct the administration of justice contravenes such lawyers duty.[16]
Although respondent judge was justified in citing petitioner in direct
contempt of court, she erred in imposing a fine in the amount of P3,000.00
which exceeded the ceiling of P2,000.00 under Supreme Court Administrative
Circular No. 22-95 which took effect on November 16, 1995. It was not
established that the fine was imposed in bad faith. The Court of Appeals thus
properly ordered the return of the excess of P1,000.00. Aside from the fine,
the three days imprisonment meted out to petitioner was justified and within
the 10-day limit prescribed in Section 1, Rule 71 of the Rules of Court, as
amended.
It is our view and we hold, therefore, that the Court of Appeals did not
commit any reversible error in its assailed decision.
WHEREFORE , the assailed Decision dated March 6, 1998 of the Court of
Appeals is hereby AFFIRMED. The Regional Trial Court of Cavite, Branch 90,
Imus, Cavite is ordered to return to the petitioner, Rexie Efren A. Bugaring,
the sum of P1,000.00 out of the original fine of P3,000.00.
SO ORDERED.
G.R. No. 78569 February 11, 1991
EARTH MINERALS EXPLORATION, INC., petitioner,
vs.
DEPUTY EXECUTIVE SECRETARY CATALINO MACARAIG, JR., OFFICE OF
THE PRESIDENT, MALACAANG, MANILA, BUREAU OF MINES DIRECTOR
Ethics-Chapter III 17
BENJAMIN A. GONZALES, AND PHILZEA MINING AND DEV. CORP.,
respondents.
Domingo G. Foronda and Taada, Vivo & Tan for petitioner.
Fortunato F. L. Viray, Jr. for private respondent Philzea Mining & Development
Corporation.
PARAS, J.:p
This is a petition for Certiorari and Prohibition with Preliminary Injunction
seeking the reversal of the decision 1 dated June 27, 1986 and resolution 2
dated May 5, 1987 of the Deputy Executive Secretary in O.P. Case No. 3023.
The decision and resolution set aside the orders of the Minister of Natural
Resources and Director of Mines and Geo-Sciences dated November 7, 1985
rendered in MNR Case No. 6353 and July 23, 1985 rendered in Mines Sp. Case
No. V-183, respectively, that upheld petitioner's action to cancel/rescind the
mining contract dated September 11, 1980 between Zambales Chromite
Mining Co., Inc. and private respondent Philzea Mining and Development
Corporation.
The antecedent facts and the proceedings that spawned the instant case, are
as follows:
Zambales Chromite Mining Co., Inc. (Zambales Chromite, for short) is the
exclusive owner of ten (10) patentable chromite mining claims located in the
Municipality of Sta. Cruz, Zambales. On September 11, 1980, Zambales
Chromite, as claim-owner, on one hand, and Philzea Mining and Development
Corporation (Philzea Mining, for short, herein private respondent) as
operator, on the other, entered into a "Contract of Development, Exploitation
and Productive Operation" on the ten (10) patentable mining claims (Annex
"C", Rollo, p. 120). During the lifetime of such contract, Earth Minerals
Exploration, Inc. (Earth Minerals, for short, herein petitioner) submitted a
Letter of Intent on June 30, 1984 to Zambales Chromite whereby the former
proposed and the latter agreed to operate the same mining area subject of
the earlier agreement between Zambales Chromite and Philzea Mining (Annex
"D", Rollo, p. 111). On August 10, 1984, Zambales Chromite and Earth
Minerals concretized their aforementioned Letter of Intent when they entered
into an "Operating Agreement" (Annex "E", Rollo, p. 112) for the latter to
operate the same mining area. Consequently, the same mining property of
Zambales Chromite became the subject of different agreements with two
separate and distinct operators. On November 29, 1984, petitioner Earth
Minerals filed with the Bureau of Mines and Geo-Sciences (BMGS, for short) a
petition for cancellation of the contract between Zambales Chromite and
Philzea Mining, pursuant t Section 7, P.D. 1281 which provides, inter alia:
Section 7. In addition to its regulatory and adjudicative
functions over companies, partnerships or persons engaged
in mining exploration, development and exploitation, the
Bureau of Mines shall have original and exclusive jurisdiction
to hear and decide cases involving:
(a) a mining property subject of different agreements entered
into by the claim holder thereof with several mining
operators;

(b) . . . .
(c) cancellation and/or enforcement of mining contracts due
to the refusal of the claimowner/operator to abide by the
terms and conditions thereof.
In its petition, Earth Minerals alleged, among others, that Philzea Mining
committed grave and serious violations of the latter's contract with Zambales
Chromite among which are: failure to produce the agreed volume of chromite
ores; failure to pay ad valorem taxes; failure to put up assay buildings and
offices, all resulting in the non-productivity and non-development of the
mining area.
On December 10, 1984, Philzea Mining filed a motion to dismiss on the
grounds that Earth Minerals is not the proper party in interest and that the
petition lacks cause of action. The motion to dismiss was, however, denied by
the BMGS in an order dated January 24, 1985 holding that "there appears
some color of right" on Earth Minerals to initiate the petition for cancellation
(Annex "G", Rollo, p. 120). A motion for reconsideration was filed but the
same was denied by the BMGS in an order dated March 4, 1985. Thereafter,
Philzea Mining elevated the case to then Ministry (now Department) of
Natural Resources (MNR, for short) which in its order of April 23, 1985
dismissed the appeal for the reason that the order of the BMGS was an
interlocutory order that could not be the proper subject of an appeal.
On May 2, 1985, Philzea Mining appealed to the Office of the President the
order of MNR dated April 23, 1985. During the pendency thereof, Earth
Minerals filed with the MNR a motion for execution of the MNR order of April
23, 1985.
On May 30, 1985, the MNR issued an order directing the BMGS to conduct the
necessary investigation in order to hasten the development of the mining
claims in question (Rollo, p. 93). In compliance therewith, the BMGS on June 7,
1985, ordered the private respondent Philzea Mining to file its answer to
Earth Mineral's petition for rescission. Philzea Mining moved to reconsider
but the motion was denied.
Philzea Mining did not submit its answer. Accordingly, the BMGS resolved the
petition for rescission on the basis of documents submitted ex parte by
herein petitioner. Finding that Philzea Mining grossly violated the terms and
conditions of the mining contract between Philzea Mining and Zambales
Chromite, the BMGS rendered a decision on July 23,1985, cancelling said
mining contract, the dispositive portion of which reads:
In view of all the foregoing, this Office finds and so holds
that the Operating Agreement dated September 11, 1980
executed by and between Zambales Chromite and Philzea
Mining should be, as is hereby cancelled. Accordingly,
respondent is hereby ordered to immediately vacate the
mining area subject of the instant case and turn over the
possession thereof to the claimowner and/or herein
petitioner. (Annex "K", Rollo, p. 130).
Aggrieved by the decision of the BMGS, Philzea Mining, aside from filing a
notice of appeal to the MNR on July 29, 1985, also filed a petition for
certiorari with the then Intermediate Appellate Court (now Court of Appeals)
Ethics-Chapter III 18
on July 30,1985, docketed as AC-G.R. Sp. No. 06715, to annul or set aside the
decision of the BMGS.
On November 4, 1985, the Office of the President promulgated a decision
dismissing the appeal of Philzea Mining from the decision of the MNR dated
April 23, 1985, on the ground that an order denying a motion for
reconsideration is interlocutory in nature and cannot be the subject of an
appeal (Annex "L", Rollo, p. 137).
On November 7, 1985, the MNR on the other hand, issued another order this
time dismissing the appeal of Philzea Mining from the decision of the BMGS
dated July 23, 1985.
On November 18, 1985 Philzea Mining appealed the aforementioned
November 7, 1985 decision of the MNR to the Office of the President.
Meanwhile, on December 26,1985, the then Intermediate Appellate Court
dismissed the petition filed by Philzea Mining in AC-G.R. Sp. No. 06715.
Back to the appeal of Philzea Mining to the Office of the President, the
disputed decision dated June 27, 1986 was issued by the then Deputy
Executive Secretary Fulgencio Factoran, Jr., the dispositive portion of which
reads:
Wherefore, the orders of the Minister of Natural Resources
and the Director of Mines and Geo-Sciences, dated November
7 and July 23, 1985, respectively, are hereby set aside.
(Annex "A", Rollo, p. 92).
A motion for reconsideration dated July 12,1986 (Annex "U", Rollo, p. 190)
was filed by petitioner Earth Minerals which, however, was denied by the then
Deputy Executive Secretary Catalino Macaraig in his resolution dated May 5,
1987, which reads in part:
Wherefore, the instant motion for reconsideration by
appellee Earth Minerals is hereby denied for lack of merit
and the Decision of this Office dated June 27, 1986 is hereby
reiterated. (Annex "B", Rollo, p. 98).
Hence, this petition.
In the resolution of the Court dated July 1989, the Court resolved: (a) to give
due course to the petition and (b) to require the parties to submit
simultaneously their respective memoranda (Rollo, p. 382).
The principal issues in the case at hand are as follows: (a) whether or not the
appeal of the private respondent Philzea Mining from the decision of the
MNR dated November 7,1985 to the Office of the President was made out of
time and (b) whether or not the petitioner Earth Minerals is the proper party
to seek cancellation of the operating agreement between Philzea Mining and
Zambales Chromite.
The petitioner contends that the last day to appeal the decision of the MNR
dated November 7, 1985 fell on November 16, 1985, that is five (5) days from
the date of its receipt by the private respondent on November 11, 1985 and
since the notice of appeal dated November 15,1985 was filed on November
18, 1985, the appeal was taken beyond the five-day reglementary period.
Public respondent counters that the ground invoked by the petitioner is too
technical in view of the fact that November 16, 1985 was a Saturday and the
following day (November 17, 1985) was a Sunday.

The Court, in the case of Atlas Consolidated Mining and Development
Corporation v. Factoran, Jr. (154 SCRA 49 [1987]) resolved the same issue in
this wise:
Saturday was observed as a legal holiday in the Office of the
President pursuant to Sec. 29 of the Revised Administrative
Code as amended.
The same law provides:
Sec. 31. Pretermission of holiday Where the day or the last
day, for doing any act required or permitted by law falls on a
holiday, the act may be done on the next succeeding business
day.
Apart from the fact that the law is clear and needs no
interpretation, this Court in accordance therewith has
invariably held that in case the last day for doing an act is a
legal holiday, the last day for doing the same, the act may be
done on the next succeeding business day (Gonzaga v. De
David, 110 Phil. 463 [1960]; Calano v. Cruz, 91 Phil. 247
[1957]; Austria et al. v. Solicitor General, 71 Phil. 288 [1941]).
In the case under consideration, as the next working day after November 16,
1985 was November 18, 1985 a Monday, it is evident that the private
respondent's appeal was filed on time.
Be that as it may, the private respondent's appeal within the reglementary
period to the Office of the President does not help them much in the instant
case.
The public respondent argues that the petitioner Earth Minerals is not the
proper party to file the petition for cancellation of the contract between
Zambales Chromite and Philzea Mining citing Article 1311 of the Civil Code
which provides that a contract takes effect only between the parties, their
assigns and heirs.
The contention is untenable.
Indeed, a contract takes effect only between the parties who made it, and also
their assigns and heirs, except in cases where the rights and obligations
arising from the contract are not transmissible by their nature, or by
stipulation or by provision of law (Article 1311, New Civil Code). Since a
contract may be violated only by the parties thereto as against each other, in
an action upon that contract, the real parties in interest, either as plaintiff or
as defendant must be parties to said contract. In relation thereto, Article
1397 of the Civil Code lays the general rule that an action for the annulment
of contracts can only be maintained by those who are bound either
principally or subsidiarily by virtue thereof. The rule, however, admits of an
exception. The Court, in Teves v. People's Homesite and Housing Corporation
(23 SCRA 1141 [1968]) held that a person who is not obliged principally or
subsidiarily in a contract may exercise an action for nullity of the contract if
he is prejudiced in his rights with respect to one of the contracting parties,
and can show the detriment which could positively result to him from the
contract in which he had no intervention. This exception to the rule has been
applied in Banez v. CA (59 SCRA 15 [1974]; Development Bank of the
Ethics-Chapter III 19
Philippines v. CA, 96 SCRA 342 [1980]; Dilson Enterprises Inc. v. IAC, 170
SCRA 676 [1989]).
Petitioner Earth Minerals seeks the cancellation of the contract between
Zambales Chromite and Philzea Mining, not as a party to the contract but
because his rights are prejudiced by the said contract. The prejudice and
detriment to the rights and interest of petitioner stems from the continued
existence of the contract between Zambales Chromite and private respondent
Philzea Mining. Unless and until the contract between Zambales Chromite and
Philzea Mining is cancelled, petitioner's contract with the former involving
the same mining area cannot be in effect and it cannot perform its own
obligations and derive benefits under its contract. The Director of Mines and
Geo-Sciences in his order denying Philzea Mining's motion to dismiss the
petition for cancellation of the operating agreement between Philzea Mining
and Zambales Chromite stated:
From the documentary evidence submitted by the petitioner,
i.e., the Letter of Intent and Operating Agreement between
Zambales Chromite and Earth Minerals, it may be gleaned
that, at least, there appears some color of right on the part of
petitioner to request for cancellation/rescission of the
contract dated September 11, 1980 between Zambales
Chromite and Philzea Mining.
Moreover, the record amply shows that the decision of the Director of Mines
as affirmed by the Minister of Natural Resources was supported by
substantial evidence. As found by the Bureau of Mines in its decision dated
July 23, 1985, the violations committed by Philzea Mining were not only
violations of its operating agreement with Zambales Chromite but of mining
laws as well.
In affirming the abovementioned decision, the Minister of Natural Resources
made the following statements:
Moreover, the appellant by filing a Manifestation on October
1, 1985 wherein it prayed that the decision appealed from be
reviewed motu propio by this Office, is an implied admission
that it has no justification whether in fact or in law, for its
appeal; otherwise, it could have specified them in the appeal
memorandum that it is bound by law to file. (p. 142, Rollo)
In such cases, the Court has uniformly held that, it is sufficient that
administrative findings of fact are supported by evidence (Ang Tibay v. CIR,
69 Phil. 635 [1940]). Still in later cases, the Court continued that such finding
will not be disturbed so long as they are supported by substantial evidence,
even if not overwhelming or preponderant (Police Commission v. Lood, 162
SCRA 762 [1984]; Atlas Consolidated v. Factoran, Jr., supra).
The decision, therefore, of the Deputy Executive Secretary reversing the
decisions of the Minister of Natural Resources and Director of Mines cannot
be sustained. This is in line with the pronouncement of the Court that the
factual findings of the Secretary should be respected in the absence of any
illegality, error of law, fraud or imposition, none of which was proved by the
public and private respondents (Heirs of Santiago Pastoral v. Secretary of
Public Works and Highways, 162 SCRA 619 [1988]).

Regarding the issue of forum shopping, the records show that on July 29,
1985, after Philzea Mining had filed its notice of appeal to MNR from the July
23, 1985 decision of the BMGS, it also filed a petition for certiorari with the
Intermediate Appellate Court on July 30, 1985, docketed as AC-G.R. Sp. No.
06715 praying for the annulment of the same July 23, 1985 decision of the
BMGS. When the MNR rendered its November 7, 1985 decision affirming the
July 23, 1985 decision of the BMGS, private respondent Philzea Mining,
notwithstanding the pendency of its petition for certiorari with the
Intermediate Appellate Court, filed its notice of appeal to the Office of the
President from the said decision of the MNR stating therein that its appeal
was "without prejudice to the pending petition with the Intermediate
Appellate Court docketed as AC-G.R. Sp. No. 06715" (Rollo, p. 80).
The foregoing facts show a case of forum shopping.
There is forum-shopping whenever, as a result of an adverse
opinion in one forum, a party seeks a favorable opinion
(other than by appeal or certiorari) in another. The principle
applies not only with respect to suits filed in the courts but
also in connection with litigations commenced in the courts
while an administrative proceeding is pending, as in this
case, in order to defeat administrative processes and in
anticipation of an unfavorable court ruling (Crisostomo v.
Securities and Exchange Commission, G.R. Nos. 89095 and
89555, November 6, 1989).
One last point, the motion to dismiss filed by Philzea before this Court on
September 5, 1989, on the ground that the petition has become moot and
academic in view of the expiration on August 10, 1989 of the five (5) year
term contract between Zambales Chromite and Earth Minerals executed by
August 10, 1984 should be denied.
The contract between Zambales Chromite and Earth Minerals provides, inter
alia:
5. Others.
A. During the existence of this agreement, Earth Minerals is
free to look for, and negotiate with, an interested party who
is financially capable of operating the CLAIMS on a much
bigger scale . . . and in connection therewith, may assign this
agreement in favor of said party; . . . .
In view of such provision, Earth Minerals and Zambales Chromite jointly
entered into a "Mining Agreement", dated June 16, 1988, with Acoje Mining
Co., Inc., the salient provisions of which reads:
ZCMC and EMEI jointly desire to protect Acoje from any and
all claims (present or future) against it (Acoje) with respect
the title and/or possession of the PROPERTIES and this
protection against all claims of third parties or entities
during the life of this Mining Agreement is one of the main
considerations why Acoje agreed to enter into this
Agreement.
Sec. 1. . . . provided, however, that EMEI obligates itself to
continue representing its interest as party in the aforesaid
Ethics-Chapter III 20
cases pending with the Supreme Court. (Annex "1", Rollo, p.
397).
The mining agreement between Zambales Chromite and Earth Minerals, on
one hand, and Acoje Mining, on the other, expressly recognizes the pendency
of the case at bar, so that herein petitioner Earth Minerals has the right to
pursue the case to its logical conclusion, and during the effectivity of such
Mining Agreement, both Earth Minerals and Zambales Chromite are under
obligation to assure peaceful possession of the mining properties from the
claims of third parties.
PREMISES CONSIDERED, (a) the instant petition for Certiorari and Prohibition
is hereby GRANTED; (b) the decision dated June 27, 1986 and resolution
dated May 5, 1987 of the Deputy Executive Secretary are hereby REVERSED
AND SET ASIDE; and (c) the orders of the Bureau of Mines and Geo-Sciences
dated July 23, 1985 and Minister of Natural Resources dated November 7,
1985 are hereby REINSTATED.
SO ORDERED.
Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.
G.R. No. 115849 January 24, 1996
FIRST PHILIPPINE INTERNATIONAL BANK (Formerly Producers Bank of
the Philippines) and MERCURIO RIVERA, petitioners,
vs.
COURT OF APPEALS, CARLOS EJERCITO, in substitution of DEMETRIO
DEMETRIA, and JOSE JANOLO, respondents.
DECISION
PANGANIBAN, J.:
In the absence of a formal deed of sale, may commitments given by bank
officers in an exchange of letters and/or in a meeting with the buyers
constitute a perfected and enforceable contract of sale over 101 hectares of
land in Sta. Rosa, Laguna? Does the doctrine of "apparent authority" apply in
this case? If so, may the Central Bank-appointed conservator of Producers
Bank (now First Philippine International Bank) repudiate such "apparent
authority" after said contract has been deemed perfected? During the
pendency of a suit for specific performance, does the filing of a "derivative
suit" by the majority shareholders and directors of the distressed bank to
prevent the enforcement or implementation of the sale violate the ban
against forum-shopping?
Simply stated, these are the major questions brought before this Court in the
instant Petition for review on certiorari under Rule 45 of the Rules of Court,
to set aside the Decision promulgated January 14, 1994 of the respondent
Court of Appeals1 in CA-G.R CV No. 35756 and the Resolution promulgated
June 14, 1994 denying the motion for reconsideration. The dispositive
portion of the said Decision reads:
WHEREFORE, the decision of the lower court is MODIFIED by the
elimination of the damages awarded under paragraphs 3, 4 and 6 of
its dispositive portion and the reduction of the award in paragraph 5
 Ethics-Chapter III 21

thereof to P75,000.00, to be assessed against defendant bank. In all
other aspects, said decision is hereby AFFIRMED.
All references to the original plaintiffs in the decision and its
dispositive portion are deemed, herein and hereafter, to legally refer
to the plaintiff-appellee Carlos C. Ejercito.
Costs against appellant bank.
The dispositive portion of the trial court's2 decision dated July 10, 1991, on
the other hand, is as follows:
WHEREFORE, premises considered, judgment is hereby rendered in
favor of the plaintiffs and against the defendants as follows:
1. Declaring the existence of a perfected contract to buy and sell over
the six (6) parcels of land situated at Don Jose, Sta. Rosa, Laguna with
an area of 101 hectares, more or less, covered by and embraced in
Transfer Certificates of Title Nos. T-106932 to T-106937, inclusive, of
the Land Records of Laguna, between the plaintiffs as buyers and the
defendant Producers Bank for an agreed price of Five and One Half
Million (P5,500,000.00) Pesos;
2. Ordering defendant Producers Bank of the Philippines, upon
finality of this decision and receipt from the plaintiffs the amount of
P5.5 Million, to execute in favor of said plaintiffs a deed of absolute
sale over the aforementioned six (6) parcels of land, and to
immediately deliver to the plaintiffs the owner's copies of T.C.T. Nos.
T-106932 to T- 106937, inclusive, for purposes of registration of the
same deed and transfer of the six (6) titles in the names of the
plaintiffs;
3. Ordering the defendants, jointly and severally, to pay plaintiffs
Jose A. Janolo and Demetrio Demetria the sums of P200,000.00 each
in moral damages;
4. Ordering the defendants, jointly and severally, to pay plaintiffs the
sum of P100,000.00 as exemplary damages ;
5. Ordering the defendants, jointly and severally, to pay the plaintiffs
the amount of P400,000.00 for and by way of attorney's fees;
6. Ordering the defendants to pay the plaintiffs, jointly and severally,
actual and moderate damages in the amount of P20,000.00;
With costs against the defendants.
After the parties filed their comment, reply, rejoinder, sur-rejoinder and reply
to sur-rejoinder, the petition was given due course in a Resolution dated
January 18, 1995. Thence, the parties filed their respective memoranda and
reply memoranda. The First Division transferred this case to the Third
Division per resolution dated October 23, 1995. After carefully deliberating
on the aforesaid submissions, the Court assigned the case to the undersigned
ponente for the writing of this Decision.
The Parties
Petitioner First Philippine International Bank (formerly Producers Bank of the
Philippines; petitioner Bank, for brevity) is a banking institution organized
and existing under the laws of the Republic of the Philippines. Petitioner
Mercurio Rivera (petitioner Rivera, for brevity) is of legal age and was, at all
times material to this case, Head-Manager of the Property Management
Department of the petitioner Bank.
Respondent Carlos Ejercito (respondent Ejercito, for brevity) is of legal age
and is the assignee of original plaintiffs-appellees Demetrio Demetria and
Jose Janolo.
Respondent Court of Appeals is the court which issued the Decision and
Resolution sought to be set aside through this petition.
The Facts
The facts of this case are summarized in the respondent Court's Decision 3 as
follows:
(1) In the course of its banking operations, the defendant Producer
Bank of the Philippines acquired six parcels of land with a total area
of 101 hectares located at Don Jose, Sta. Rose, Laguna, and covered
by Transfer Certificates of Title Nos. T-106932 to T-106937. The
property used to be owned by BYME Investment and Development
Corporation which had them mortgaged with the bank as collateral
for a loan. The original plaintiffs, Demetrio Demetria and Jose O.
Janolo, wanted to purchase the property and thus initiated
negotiations for that purpose.
(2) In the early part of August 1987 said plaintiffs, upon the
suggestion of BYME investment's legal counsel, Jose Fajardo, met
with defendant Mercurio Rivera, Manager of the Property
Management Department of the defendant bank. The meeting was
held pursuant to plaintiffs' plan to buy the property (TSN of Jan. 16,
1990, pp. 7-10). After the meeting, plaintiff Janolo, following the
advice of defendant Rivera, made a formal purchase offer to the bank
through a letter dated August 30, 1987 (Exh. "B"), as follows:
August 30, 1987
The Producers Bank of the Philippines
Makati, Metro Manila
Attn. Mr. Mercurio Q. Rivera
Manager, Property Management Dept.
Gentleman:
I have the honor to submit my formal offer to purchase your
properties covered by titles listed hereunder located at Sta. Rosa,
Laguna, with a total area of 101 hectares, more or less.
TCT NO. AREA
T-106932 113,580 sq. m.
T-106933 70,899 sq. m.
T-106934 52,246 sq. m.
T-106935 96,768 sq. m.
T-106936 187,114 sq. m.
T-106937 481,481 sq. m.
My offer is for PESOS: THREE MILLION FIVE HUNDRED THOUSAND
(P3,500,000.00) PESOS, in cash.

Kindly contact me at Telephone Number 921-1344.
(3) On September 1, 1987, defendant Rivera made on behalf of the
bank a formal reply by letter which is hereunder quoted (Exh. "C"):
September 1, 1987
JP M-P GUTIERREZ ENTERPRISES
142 Charisma St., Doa Andres II
Rosario, Pasig, Metro Manila
Attention: JOSE O. JANOLO
Dear Sir:
Thank you for your letter-offer to buy our six (6) parcels of acquired
lots at Sta. Rosa, Laguna (formerly owned by Byme Industrial Corp.).
Please be informed however that the bank's counter-offer is at P5.5
million for more than 101 hectares on lot basis.
We shall be very glad to hear your position on the on the matter.
Best regards.
(4) On September 17, 1987, plaintiff Janolo, responding to Rivera's
aforequoted reply, wrote (Exh. "D"):
September 17, 1987
Producers Bank
Paseo de Roxas
Makati, Metro Manila
Attention: Mr. Mercurio Rivera
Gentlemen:
In reply to your letter regarding my proposal to purchase your 101-
hectare lot located at Sta. Rosa, Laguna, I would like to amend my
previous offer and I now propose to buy the said lot at P4.250 million
in CASH..
Hoping that this proposal meets your satisfaction.
(5) There was no reply to Janolo's foregoing letter of September 17,
1987. What took place was a meeting on September 28, 1987 between
the plaintiffs and Luis Co, the Senior Vice-President of defendant
bank. Rivera as well as Fajardo, the BYME lawyer, attended the
meeting. Two days later, or on September 30, 1987, plaintiff Janolo
sent to the bank, through Rivera, the following letter (Exh. "E"):
The Producers Bank of the Philippines
Paseo de Roxas, Makati
Metro Manila
Attention: Mr. Mercurio Rivera
Re: 101 Hectares of Land
in Sta. Rosa, Laguna
Gentlemen:
Pursuant to our discussion last 28 September 1987, we are pleased to
inform you that we are accepting your offer for us to purchase the
property at Sta. Rosa, Laguna, formerly owned by Byme Investment,
for a total price of PESOS: FIVE MILLION FIVE HUNDRED THOUSAND
(P5,500,000.00).
Thank you.
Ethics-Chapter III 22
(6) On October 12, 1987, the conservator of the bank (which has been
placed under conservatorship by the Central Bank since 1984) was
replaced by an Acting Conservator in the person of defendant
Leonida T. Encarnacion. On November 4, 1987, defendant Rivera
wrote plaintiff Demetria the following letter (Exh. "F"):
Attention: Atty. Demetrio Demetria
Dear Sir:
Your proposal to buy the properties the bank foreclosed from Byme
investment Corp. located at Sta. Rosa, Laguna is under study yet as of
this time by the newly created committee for submission to the newly
designated Acting Conservator of the bank.
For your information.
(7) What thereafter transpired was a series of demands by the
plaintiffs for compliance by the bank with what plaintiff considered
as a perfected contract of sale, which demands were in one form or
another refused by the bank. As detailed by the trial court in its
decision, on November 17, 1987, plaintiffs through a letter to
defendant Rivera (Exhibit "G") tendered payment of the amount of
P5.5 million "pursuant to (our) perfected sale agreement." Defendants
refused to receive both the payment and the letter. Instead, the
parcels of land involved in the transaction were advertised by the
bank for sale to any interested buyer (Exh, "H" and "H-1"). Plaintiffs
demanded the execution by the bank of the documents on what was
considered as a "perfected agreement." Thus:
Mr. Mercurio Rivera
Manager, Producers Bank
Paseo de Roxas, Makati
Metro Manila
Dear Mr. Rivera:
This is in connection with the offer of our client, Mr. Jose O. Janolo,
to purchase your 101-hectare lot located in Sta. Rosa, Laguna, and
which are covered by TCT No. T-106932 to 106937.
From the documents at hand, it appears that your counter-offer
dated September 1, 1987 of this same lot in the amount of P5.5
million was accepted by our client thru a letter dated September 30,
1987 and was received by you on October 5, 1987.
In view of the above circumstances, we believe that an agreement has
been perfected. We were also informed that despite repeated follow-
up to consummate the purchase, you now refuse to honor your
commitment. Instead, you have advertised for sale the same lot to
others.
In behalf of our client, therefore, we are making this formal demand
upon you to consummate and execute the necessary
actions/documentation within three (3) days from your receipt
hereof. We are ready to remit the agreed amount of P5.5 million at
your advice. Otherwise, we shall be constrained to file the necessary
court action to protect the interest of our client.
We trust that you will be guided accordingly.

(8) Defendant bank, through defendant Rivera, acknowledged receipt
of the foregoing letter and stated, in its communication of December
2, 1987 (Exh. "I"), that said letter has been "referred . . . to the office
of our Conservator for proper disposition" However, no response
came from the Acting Conservator. On December 14, 1987, the
plaintiffs made a second tender of payment (Exh. "L" and "L-1"), this
time through the Acting Conservator, defendant Encarnacion.
Plaintiffs' letter reads:
PRODUCERS BANK OF
THE PHILIPPINES
Paseo de Roxas,
Makati, Metro Manila
Attn.: Atty. NIDA ENCARNACION
Central Bank Conservator
We are sending you herewith, in - behalf of our client, Mr. JOSE O.
JANOLO, MBTC Check No. 258387 in the amount of P5.5 million as
our agreed purchase price of the 101-hectare lot covered by TCT Nos.
106932, 106933, 106934, 106935, 106936 and 106937 and registered
under Producers Bank.
This is in connection with the perfected agreement consequent from
your offer of P5.5 Million as the purchase price of the said lots.
Please inform us of the date of documentation of the sale
immediately.
Kindly acknowledge receipt of our payment.
(9) The foregoing letter drew no response for more than four months.
Then, on May 3, 1988, plaintiff, through counsel, made a final
demand for compliance by the bank with its obligations under the
considered perfected contract of sale (Exhibit "N"). As recounted by
the trial court (Original Record, p. 656), in a reply letter dated May
12, 1988 (Annex "4" of defendant's answer to amended complaint),
the defendants through Acting Conservator Encarnacion repudiated
the authority of defendant Rivera and claimed that his dealings with
the plaintiffs, particularly his counter-offer of P5.5 Million are
unauthorized or illegal. On that basis, the defendants justified the
refusal of the tenders of payment and the non-compliance with the
obligations under what the plaintiffs considered to be a perfected
contract of sale.
(10) On May 16, 1988, plaintiffs filed a suit for specific performance
with damages against the bank, its Manager Rivers and Acting
Conservator Encarnacion. The basis of the suit was that the
transaction had with the bank resulted in a perfected contract of sale,
The defendants took the position that there was no such perfected
sale because the defendant Rivera is not authorized to sell the
property, and that there was no meeting of the minds as to the price.
On March 14, 1991, Henry L. Co (the brother of Luis Co), through
counsel Sycip Salazar Hernandez and Gatmaitan, filed a motion to
intervene in the trial court, alleging that as owner of 80% of the
Bank's outstanding shares of stock, he had a substantial interest in
Ethics-Chapter III 23
resisting the complaint. On July 8, 1991, the trial court issued an
order denying the motion to intervene on the ground that it was filed
after trial had already been concluded. It also denied a motion for
reconsideration filed thereafter. From the trial court's decision, the
Bank, petitioner Rivera and conservator Encarnacion appealed to the
Court of Appeals which subsequently affirmed with modification the
said judgment. Henry Co did not appeal the denial of his motion for
intervention.
In the course of the proceedings in the respondent Court, Carlos Ejercito was
substituted in place of Demetria and Janolo, in view of the assignment of the
latters' rights in the matter in litigation to said private respondent.
On July 11, 1992, during the pendency of the proceedings in the Court of
Appeals, Henry Co and several other stockholders of the Bank, through
counsel Angara Abello Concepcion Regala and Cruz, filed an action
(hereafter, the "Second Case") purportedly a "derivative suit" with the
Regional Trial Court of Makati, Branch 134, docketed as Civil Case No. 92-
1606, against Encarnacion, Demetria and Janolo "to declare any perfected sale
of the property as unenforceable and to stop Ejercito from enforcing or
implementing the sale"4 In his answer, Janolo argued that the Second Case
was barred by litis pendentia by virtue of the case then pending in the Court
of Appeals. During the pre-trial conference in the Second Case, plaintiffs filed
a Motion for Leave of Court to Dismiss the Case Without Prejudice. "Private
respondent opposed this motion on the ground, among others, that plaintiff's
act of forum shopping justifies the dismissal of both cases, with prejudice."5
Private respondent, in his memorandum, averred that this motion is still
pending in the Makati RTC.
In their Petition6 and Memorandum7, petitioners summarized their position as
follows:
I.
The Court of Appeals erred in declaring that a contract of sale was
perfected between Ejercito (in substitution of Demetria and Janolo)
and the bank.
II.
The Court of Appeals erred in declaring the existence of an
enforceable contract of sale between the parties.
III.
The Court of Appeals erred in declaring that the conservator does
not have the power to overrule or revoke acts of previous
management.
IV.
The findings and conclusions of the Court of Appeals do not conform
to the evidence on record.
On the other hand, petitioners prayed for dismissal of the instant suit on the
ground8 that:
I.
Petitioners have engaged in forum shopping.
II.

The factual findings and conclusions of the Court of Appeals are
supported by the evidence on record and may no longer be
questioned in this case.
III.
The Court of Appeals correctly held that there was a perfected
contract between Demetria and Janolo (substituted by; respondent
Ejercito) and the bank.
IV.
The Court of Appeals has correctly held that the conservator, apart
from being estopped from repudiating the agency and the contract,
has no authority to revoke the contract of sale.
The Issues
From the foregoing positions of the parties, the issues in this case may be
summed up as follows:
1) Was there forum-shopping on the part of petitioner Bank?
2) Was there a perfected contract of sale between the parties?
3) Assuming there was, was the said contract enforceable under the
statute of frauds?
4) Did the bank conservator have the unilateral power to repudiate
the authority of the bank officers and/or to revoke the said contract?
5) Did the respondent Court commit any reversible error in its
findings of facts?
The First Issue: Was There Forum-Shopping?
In order to prevent the vexations of multiple petitions and actions, the
Supreme Court promulgated Revised Circular No. 28-91 requiring that a party
"must certify under oath . . . [that] (a) he has not (t)heretofore commenced
any other action or proceeding involving the same issues in the Supreme
Court, the Court of Appeals, or any other tribunal or agency; (b) to the best of
his knowledge, no such action or proceeding is pending" in said courts or
agencies. A violation of the said circular entails sanctions that include the
summary dismissal of the multiple petitions or complaints. To be sure,
petitioners have included a VERIFICATION/CERTIFICATION in their Petition
stating "for the record(,) the pendency of Civil Case No. 92-1606 before the
Regional Trial Court of Makati, Branch 134, involving a derivative suit filed by
stockholders of petitioner Bank against the conservator and other defendants
but which is the subject of a pending Motion to Dismiss Without Prejudice.9
Private respondent Ejercito vigorously argues that in spite of this verification,
petitioners are guilty of actual forum shopping because the instant petition
pending before this Court involves "identical parties or interests represented,
rights asserted and reliefs sought (as that) currently pending before the
Regional Trial Court, Makati Branch 134 in the Second Case. In fact, the issues
in the two cases are so interwined that a judgement or resolution in either
case will constitute res judicata in the other." 10
On the other hand, petitioners explain 11 that there is no forum-shopping
because:
1) In the earlier or "First Case" from which this proceeding arose, the
Bank was impleaded as a defendant, whereas in the "Second Case"
Ethics-Chapter III 24
(assuming the Bank is the real party in interest in a derivative suit), it
was plaintiff;
2) "The derivative suit is not properly a suit for and in behalf of the
corporation under the circumstances";
3) Although the CERTIFICATION/VERIFICATION (supra) signed by the
Bank president and attached to the Petition identifies the action as a
"derivative suit," it "does not mean that it is one" and "(t)hat is a legal
question for the courts to decide";
4) Petitioners did not hide the Second Case at they mentioned it in
the said VERIFICATION/CERTIFICATION.
We rule for private respondent.
To begin with, forum-shopping originated as a concept in private
international law.12, where non-resident litigants are given the option to
choose the forum or place wherein to bring their suit for various reasons or
excuses, including to secure procedural advantages, to annoy and harass the
defendant, to avoid overcrowded dockets, or to select a more friendly venue.
To combat these less than honorable excuses, the principle of forum non
conveniens was developed whereby a court, in conflicts of law cases, may
refuse impositions on its jurisdiction where it is not the most "convenient" or
available forum and the parties are not precluded from seeking remedies
elsewhere.
In this light, Black's Law Dictionary 13 says that forum shopping "occurs when
a party attempts to have his action tried in a particular court or jurisdiction
where he feels he will receive the most favorable judgment or verdict." Hence,
according to Words and Phrases14, "a litigant is open to the charge of "forum
shopping" whenever he chooses a forum with slight connection to factual
circumstances surrounding his suit, and litigants should be encouraged to
attempt to settle their differences without imposing undue expenses and
vexatious situations on the courts".
In the Philippines, forum shopping has acquired a connotation encompassing
not only a choice of venues, as it was originally understood in conflicts of
laws, but also to a choice of remedies. As to the first (choice of venues), the
Rules of Court, for example, allow a plaintiff to commence personal actions
"where the defendant or any of the defendants resides or may be found, or
where the plaintiff or any of the plaintiffs resides, at the election of the
plaintiff" (Rule 4, Sec, 2 [b]). As to remedies, aggrieved parties, for example,
are given a choice of pursuing civil liabilities independently of the criminal,
arising from the same set of facts. A passenger of a public utility vehicle
involved in a vehicular accident may sue on culpa contractual, culpa aquiliana
or culpa criminal each remedy being available independently of the others
although he cannot recover more than once.
In either of these situations (choice of venue or choice of remedy),
the litigant actually shops for a forum of his action, This was the
original concept of the term forum shopping.
Eventually, however, instead of actually making a choice of the forum
of their actions, litigants, through the encouragement of their
lawyers, file their actions in all available courts, or invoke all relevant
remedies simultaneously. This practice had not only resulted to (sic)

conflicting adjudications among different courts and consequent
confusion enimical (sic) to an orderly administration of justice. It had
created extreme inconvenience to some of the parties to the action.
Thus, "forum shopping" had acquired a different concept which is
unethical professional legal practice. And this necessitated or had
given rise to the formulation of rules and canons discouraging or
altogether prohibiting the practice. 15
What therefore originally started both in conflicts of laws and in our
domestic law as a legitimate device for solving problems has been abused and
mis-used to assure scheming litigants of dubious reliefs.
To avoid or minimize this unethical practice of subverting justice, the
Supreme Court, as already mentioned, promulgated Circular 28-91. And even
before that, the Court had prescribed it in the Interim Rules and Guidelines
issued on January 11, 1983 and had struck down in several cases 16 the
inveterate use of this insidious malpractice. Forum shopping as "the filing of
repetitious suits in different courts" has been condemned by Justice Andres
R. Narvasa (now Chief Justice) in Minister of Natural Resources, et al., vs. Heirs
of Orval Hughes, et al., "as a reprehensible manipulation of court processes
and proceedings . . ." 17 when does forum shopping take place?
There is forum-shopping whenever, as a result of an adverse opinion
in one forum, a party seeks a favorable opinion (other than by appeal
or certiorari) in another. The principle applies not only with respect
to suits filed in the courts but also in connection with litigations
commenced in the courts while an administrative proceeding is
pending, as in this case, in order to defeat administrative processes
and in anticipation of an unfavorable administrative ruling and a
favorable court ruling. This is specially so, as in this case, where the
court in which the second suit was brought, has no jurisdiction.18
The test for determining whether a party violated the rule against forum
shopping has been laid dawn in the 1986 case of Buan vs. Lopez 19, also by
Chief Justice Narvasa, and that is, forum shopping exists where the elements
of litis pendentia are present or where a final judgment in one case will
amount to res judicata in the other, as follows:
There thus exists between the action before this Court and RTC Case
No. 86-36563 identity of parties, or at least such parties as represent
the same interests in both actions, as well as identity of rights
asserted and relief prayed for, the relief being founded on the same
facts, and the identity on the two preceding particulars is such that
any judgment rendered in the other action, will, regardless of which
party is successful, amount to res adjudicata in the action under
consideration: all the requisites, in fine, of auter action pendant.
xxx xxx xxx
As already observed, there is between the action at bar and RTC Case
No. 86-36563, an identity as regards parties, or interests represented,
rights asserted and relief sought, as well as basis thereof, to a degree
sufficient to give rise to the ground for dismissal known as auter
action pendant or lis pendens. That same identity puts into operation
the sanction of twin dismissals just mentioned. The application of
Ethics-Chapter III 25
this sanction will prevent any further delay in the settlement of the
controversy which might ensue from attempts to seek
reconsideration of or to appeal from the Order of the Regional Trial
Court in Civil Case No. 86-36563 promulgated on July 15, 1986,
which dismissed the petition upon grounds which appear persuasive.
Consequently, where a litigant (or one representing the same interest or
person) sues the same party against whom another action or actions for the
alleged violation of the same right and the enforcement of the same relief
is/are still pending, the defense of litis pendencia in one case is bar to the
others; and, a final judgment in one would constitute res judicata and thus
would cause the dismissal of the rest. In either case, forum shopping could
be cited by the other party as a ground to ask for summary dismissal of the
two 20 (or more) complaints or petitions, and for imposition of the other
sanctions, which are direct contempt of court, criminal prosecution, and
disciplinary action against the erring lawyer.
Applying the foregoing principles in the case before us and comparing it with
the Second Case, it is obvious that there exist identity of parties or interests
represented, identity of rights or causes and identity of reliefs sought.
Very simply stated, the original complaint in the court a quo which gave rise
to the instant petition was filed by the buyer (herein private respondent and
his predecessors-in-interest) against the seller (herein petitioners) to enforce
the alleged perfected sale of real estate. On the other hand, the complaint 21
in the Second Case seeks to declare such purported sale involving the same
real property "as unenforceable as against the Bank", which is the petitioner
herein. In other words, in the Second Case, the majority stockholders, in
representation of the Bank, are seeking to accomplish what the Bank itself
failed to do in the original case in the trial court. In brief, the objective or the
relief being sought, though worded differently, is the same, namely, to enable
the petitioner Bank to escape from the obligation to sell the property to
respondent. In Danville Maritime, Inc. vs. Commission on Audit. 22, this Court
ruled that the filing by a party of two apparently different actions, but with
the same objective, constituted forum shopping:
In the attempt to make the two actions appear to be different,
petitioner impleaded different respondents therein PNOC in the
case before the lower court and the COA in the case before this Court
and sought what seems to be different reliefs. Petitioner asks this
Court to set aside the questioned letter-directive of the COA dated
October 10, 1988 and to direct said body to approve the
Memorandum of Agreement entered into by and between the PNOC
and petitioner, while in the complaint before the lower court
petitioner seeks to enjoin the PNOC from conducting a rebidding and
from selling to other parties the vessel "T/T Andres Bonifacio", and
for an extension of time for it to comply with the paragraph 1 of the
memorandum of agreement and damages. One can see that although
the relief prayed for in the two (2) actions are ostensibly different, the
ultimate objective in both actions is the same, that is, approval of the
sale of vessel in favor of petitioner and to overturn the letter-directive

of the COA of October 10, 1988 disapproving the sale. (emphasis
supplied).
In an earlier case 23 but with the same logic and vigor, we held:
In other words, the filing by the petitioners of the instant special civil
action for certiorari and prohibition in this Court despite the
pendency of their action in the Makati Regional Trial Court, is a
species of forum-shopping. Both actions unquestionably involve the
same transactions, the same essential facts and circumstances. The
petitioners' claim of absence of identity simply because the PCGG
had not been impleaded in the RTC suit, and the suit did not involve
certain acts which transpired after its commencement, is specious. In
the RTC action, as in the action before this Court, the validity of the
contract to purchase and sell of September 1, 1986, i.e., whether or
not it had been efficaciously rescinded, and the propriety of
implementing the same (by paying the pledgee banks the amount of
their loans, obtaining the release of the pledged shares, etc.) were the
basic issues. So, too, the relief was the same: the prevention of such
implementation and/or the restoration of the status quo ante. When
the acts sought to be restrained took place anyway despite the
issuance by the Trial Court of a temporary restraining order, the RTC
suit did not become functus oficio. It remained an effective vehicle for
obtention of relief; and petitioners' remedy in the premises was plain
and patent: the filing of an amended and supplemental pleading in
the RTC suit, so as to include the PCGG as defendant and seek
nullification of the acts sought to be enjoined but nonetheless done.
The remedy was certainly not the institution of another action in
another forum based on essentially the same facts, The adoption of
this latter recourse renders the petitioners amenable to disciplinary
action and both their actions, in this Court as well as in the Court a
quo, dismissible.
In the instant case before us, there is also identity of parties, or at least, of
interests represented. Although the plaintiffs in the Second Case (Henry L.
Co. et al.) are not name parties in the First Case, they represent the same
interest and entity, namely, petitioner Bank, because:
Firstly, they are not suing in their personal capacities, for they have no direct
personal interest in the matter in controversy. They are not principally or
even subsidiarily liable; much less are they direct parties in the assailed
contract of sale; and
Secondly, the allegations of the complaint in the Second Case show that the
stockholders are bringing a "derivative suit". In the caption itself, petitioners
claim to have brought suit "for and in behalf of the Producers Bank of the
Philippines" 24. Indeed, this is the very essence of a derivative suit:
An individual stockholder is permitted to institute a derivative suit
on behalf of the corporation wherein he holdsstock in order to
protect or vindicate corporate rights, whenever the officials of the
corporation refuse to sue, or are the ones to be sued or hold the
control of the corporation. In such actions, the suing stockholder is
regarded as a nominal party, with the corporation as the real party in
Ethics-Chapter III 26
interest. (Gamboa v. Victoriano, 90 SCRA 40, 47 [1979]; emphasis
supplied).
In the face of the damaging admissions taken from the complaint in the
Second Case, petitioners, quite strangely, sought to deny that the Second
Case was a derivative suit, reasoning that it was brought, not by the minority
shareholders, but by Henry Co et al., who not only own, hold or control over
80% of the outstanding capital stock, but also constitute the majority in the
Board of Directors of petitioner Bank. That being so, then they really
represent the Bank. So, whether they sued "derivatively" or directly, there is
undeniably an identity of interests/entity represented.
Petitioner also tried to seek refuge in the corporate fiction that the
personality Of the Bank is separate and distinct from its shareholders. But
the rulings of this Court are consistent: "When the fiction is urged as a means
of perpetrating a fraud or an illegal act or as a vehicle for the evasion of an
existing obligation, the circumvention of statutes, the achievement or
perfection of a monopoly or generally the perpetration of knavery or crime,
the veil with which the law covers and isolates the corporation from the
members or stockholders who compose it will be lifted to allow for its
consideration merely as an aggregation of individuals." 25
In addition to the many cases 26 where the corporate fiction has been
disregarded, we now add the instant case, and declare herewith that the
corporate veil cannot be used to shield an otherwise blatant violation of the
prohibition against forum-shopping. Shareholders, whether suing as the
majority in direct actions or as the minority in a derivative suit, cannot be
allowed to trifle with court processes, particularly where, as in this case, the
corporation itself has not been remiss in vigorously prosecuting or defending
corporate causes and in using and applying remedies available to it. To rule
otherwise would be to encourage corporate litigants to use their shareholders
as fronts to circumvent the stringent rules against forum shopping.
Finally, petitioner Bank argued that there cannot be any forum shopping,
even assuming arguendo that there is identity of parties, causes of action and
reliefs sought, "because it (the Bank) was the defendant in the (first) case
while it was the plaintiff in the other (Second Case)",citing as authority
Victronics Computers, Inc., vs. Regional Trial Court, Branch 63, Makati, etc. et
al., 27 where Court held:
The rule has not been extended to a defendant who, for reasons
known only to him, commences a new action against the plaintiff
instead of filing a responsive pleading in the other case setting
forth therein, as causes of action, specific denials, special and
affirmative defenses or even counterclaims, Thus, Velhagen's and
King's motion to dismiss Civil Case No. 91-2069 by no means negates
the charge of forum-shopping as such did not exist in the first place.
(emphasis supplied)
Petitioner pointed out that since it was merely the defendant in the original
case, it could not have chosen the forum in said case.
Respondent, on the other hand, replied that there is a difference in factual
setting between Victronics and the present suit. In the former, as underscored
in the above-quoted Court ruling, the defendants did not file any responsive

pleading in the first case. In other words, they did not make any denial or
raise any defense or counter-claim therein In the case before us however,
petitioners filed a responsive pleading to the complaint as a result of
which, the issues were joined.
Indeed, by praying for affirmative reliefs and interposing counterclaims in
their responsive pleadings, the petitioners became plaintiffs themselves in
the original case, giving unto themselves the very remedies they repeated in
the Second Case.
Ultimately, what is truly important to consider in determining whether
forum-shopping exists or not is the vexation caused the courts and parties-
litigant by a party who asks different courts and/or administrative agencies
to rule on the same or related causes and/or to grant the same or
substantially the same reliefs, in the process creating the possibility of
conflicting decisions being rendered by the different fora upon the same
issue. In this case, this is exactly the problem: a decision recognizing the
perfection and directing the enforcement of the contract of sale will directly
conflict with a possible decision in the Second Case barring the parties front
enforcing or implementing the said sale. Indeed, a final decision in one would
constitute res judicata in the other 28.
The foregoing conclusion finding the existence of forum-shopping
notwithstanding, the only sanction possible now is the dismissal of both
cases with prejudice, as the other sanctions cannot be imposed because
petitioners' present counsel entered their appearance only during the
proceedings in this Court, and the Petition's VERIFICATION/CERTIFICATION
contained sufficient allegations as to the pendency of the Second Case to
show good faith in observing Circular 28-91. The Lawyers who filed the
Second Case are not before us; thus the rudiments of due process prevent us
from motu propio imposing disciplinary measures against them in this
Decision. However, petitioners themselves (and particularly Henry Co, et al.)
as litigants are admonished to strictly follow the rules against forum-
shopping and not to trifle with court proceedings and processes They are
warned that a repetition of the same will be dealt with more severely.
Having said that, let it be emphasized that this petition should be dismissed
not merely because of forum-shopping but also because of the substantive
issues raised, as will be discussed shortly.
The Second Issue: Was The Contract Perfected?
The respondent Court correctly treated the question of whether or not there
was, on the basis of the facts established, a perfected contract of sale as the
ultimate issue. Holding that a valid contract has been established, respondent
Court stated:
There is no dispute that the object of the transaction is that property
owned by the defendant bank as acquired assets consisting of six (6)
parcels of land specifically identified under Transfer Certificates of
Title Nos. T-106932 to T-106937. It is likewise beyond cavil that the
bank intended to sell the property. As testified to by the Bank's
Deputy Conservator, Jose Entereso, the bank was looking for buyers
of the property. It is definite that the plaintiffs wanted to purchase
the property and it was precisely for this purpose that they met with
Ethics-Chapter III 27
defendant Rivera, Manager of the Property Management Department
of the defendant bank, in early August 1987. The procedure in the
sale of acquired assets as well as the nature and scope of the
authority of Rivera on the matter is clearly delineated in the
testimony of Rivera himself, which testimony was relied upon by
both the bank and by Rivera in their appeal briefs. Thus (TSN of July
30, 1990. pp. 19-20):
A: The procedure runs this way: Acquired assets was turned
over to me and then I published it in the form of an inter-
office memorandum distributed to all branches that these
are acquired assets for sale. I was instructed to advertise
acquired assets for sale so on that basis, I have to entertain
offer; to accept offer, formal offer and upon having been
offered, I present it to the Committee. I provide the
Committee with necessary information about the property
such as original loan of the borrower, bid price during the
foreclosure, total claim of the bank, the appraised value at
the time the property is being offered for sale and then the
information which are relative to the evaluation of the bank
to buy which the Committee considers and it is the
Committee that evaluate as against the exposure of the bank
and it is also the Committee that submit to the Conservator
for final approval and once approved, we have to execute the
deed of sale and it is the Conservator that sign the deed of
sale, sir.
The plaintiffs, therefore, at that meeting of August 1987 regarding
their purpose of buying the property, dealt with and talked to the
right person. Necessarily, the agenda was the price of the property,
and plaintiffs were dealing with the bank official authorized to
entertain offers, to accept offers and to present the offer to the
Committee before which the said official is authorized to discuss
information relative to price determination. Necessarily, too, it being
inherent in his authority, Rivera is the officer from whom official
information regarding the price, as determined by the Committee and
approved by the Conservator, can be had. And Rivera confirmed his
authority when he talked with the plaintiff in August 1987. The
testimony of plaintiff Demetria is clear on this point (TSN of May
31,1990, pp. 27-28):
Q: When you went to the Producers Bank and talked with Mr.
Mercurio Rivera, did you ask him point-blank his authority to
sell any property?
A: No, sir. Not point blank although it came from him, (W)hen
I asked him how long it would take because he was saying
that the matter of pricing will be passed upon by the
committee. And when I asked him how long it will take for
the committee to decide and he said the committee meets
every week. If I am not mistaken Wednesday and in about
two week's (sic) time, in effect what he was saying he was not

the one who was to decide. But he would refer it to the
committee and he would relay the decision of the committee
to me.
Q Please answer the question.
A He did not say that he had the authority (.) But he said
he would refer the matter to the committee and he would
relay the decision to me and he did just like that.
"Parenthetically, the Committee referred to was the Past Due
Committee of which Luis Co was the Head, with Jose Entereso as one
of the members.
What transpired after the meeting of early August 1987 are
consistent with the authority and the duties of Rivera and the bank's
internal procedure in the matter of the sale of bank's assets. As
advised by Rivera, the plaintiffs made a formal offer by a letter dated
August 20, 1987 stating that they would buy at the price of P3.5
Million in cash. The letter was for the attention of Mercurio Rivera
who was tasked to convey and accept such offers. Considering an
aspect of the official duty of Rivera as some sort of intermediary
between the plaintiffs-buyers with their proposed buying price on
one hand, and the bank Committee, the Conservator and ultimately
the bank itself with the set price on the other, and considering
further the discussion of price at the meeting of August resulting in a
formal offer of P3.5 Million in cash, there can be no other logical
conclusion than that when, on September 1, 1987, Rivera informed
plaintiffs by letter that "the bank's counter-offer is at P5.5 Million for
more than 101 hectares on lot basis," such counter-offer price had
been determined by the Past Due Committee and approved by the
Conservator after Rivera had duly presented plaintiffs' offer for
discussion by the Committee of such matters as original loan of
borrower, bid price during foreclosure, total claim of the bank, and
market value. Tersely put, under the established facts, the price of
P5.5 Million was, as clearly worded in Rivera's letter (Exh. "E"), the
official and definitive price at which the bank was selling the
property.
There were averments by defendants below, as well as before this
Court, that the P5.5 Million price was not discussed by the
Committee and that price. As correctly characterized by the trial
court, this is not credible. The testimonies of Luis Co and Jose
Entereso on this point are at best equivocal and considering the
gratuitous and self-serving character of these declarations, the bank's
submission on this point does not inspire belief. Both Co ad Entereso,
as members of the Past Due Committee of the bank, claim that the
offer of the plaintiff was never discussed by the Committee. In the
same vein, both Co and Entereso openly admit that they seldom
attend the meetings of the Committee. It is important to note that
negotiations on the price had started in early August and the
plaintiffs had already offered an amount as purchase price, having
been made to understand by Rivera, the official in charge of the
Ethics-Chapter III 28
negotiation, that the price will be submitted for approval by the bank
and that the bank's decision will be relayed to plaintiffs. From the
facts, the official bank price. At any rate, the bank placed its official,
Rivera, in a position of authority to accept offers to buy and
negotiate the sale by having the offer officially acted upon by the
bank. The bank cannot turn around and later say, as it now does, that
what Rivera states as the bank's action on the matter is not in fact so.
It is a familiar doctrine, the doctrine of ostensible authority, that if a
corporation knowingly permits one of its officers, or any other agent,
to do acts within the scope of an apparent authority, and thus holds
him out to the public as possessing power to do those acts, the
corporation will, as against any one who has in good faith dealt with
the corporation through such agent, he estopped from denying his
authority (Francisco v. GSIS, 7 SCRA 577, 583-584; PNB v. Court of
Appeals, 94 SCRA 357, 369-370; Prudential Bank v. Court of Appeals,
G.R. No. 103957, June 14, 1993). 29
Article 1318 of the Civil Code enumerates the requisites of a valid and
perfected contract as follows: "(1) Consent of the contracting parties; (2)
Object certain which is the subject matter of the contract; (3) Cause of the
obligation which is established."
There is no dispute on requisite no. 2. The object of the questioned contract
consists of the six (6) parcels of land in Sta. Rosa, Laguna with an aggregate
area of about 101 hectares, more or less, and covered by Transfer Certificates
of Title Nos. T-106932 to T-106937. There is, however, a dispute on the first
and third requisites.
Petitioners allege that "there is no counter-offer made by the Bank, and any
supposed counter-offer which Rivera (or Co) may have made is unauthorized.
Since there was no counter-offer by the Bank, there was nothing for Ejercito
(in substitution of Demetria and Janolo) to accept." 30 They disputed the
factual basis of the respondent Court's findings that there was an offer made
by Janolo for P3.5 million, to which the Bank counter-offered P5.5 million. We
have perused the evidence but cannot find fault with the said Court's findings
of fact. Verily, in a petition under Rule 45 such as this, errors of fact if
there be any - are, as a rule, not reviewable. The mere fact that respondent
Court (and the trial court as well) chose to believe the evidence presented by
respondent more than that presented by petitioners is not by itself a
reversible error. In fact, such findings merit serious consideration by this
Court, particularly where, as in this case, said courts carefully and
meticulously discussed their findings. This is basic.
Be that as it may, and in addition to the foregoing disquisitions by the Court
of Appeals, let us review the question of Rivera's authority to act and
petitioner's allegations that the P5.5 million counter-offer was extinguished
by the P4.25 million revised offer of Janolo. Here, there are questions of law
which could be drawn from the factual findings of the respondent Court.
They also delve into the contractual elements of consent and cause.
The authority of a corporate officer in dealing with third persons may be
actual or apparent. The doctrine of "apparent authority", with special

reference to banks, was laid out in Prudential Bank vs. Court of Appeals31,
where it was held that:
Conformably, we have declared in countless decisions that the
principal is liable for obligations contracted by the agent. The agent's
apparent representation yields to the principal's true representation
and the contract is considered as entered into between the principal
and the third person (citing National Food Authority vs. Intermediate
Appellate Court, 184 SCRA 166).
A bank is liable for wrongful acts of its officers done in the
interests of the bank or in the course of dealings of the
officers in their representative capacity but not for acts
outside the scape of their authority (9 C.J.S., p. 417). A bank
holding out its officers and agents as worthy of confidence
will not be permitted to profit by the frauds they may thus
be enabled to perpetrate in the apparent scope of their
employment; nor will it be permitted to shirk its
responsibility for such frauds even though no benefit may
accrue to the bank therefrom (10 Am Jur 2d, p. 114).
Accordingly, a banking corporation is liable to innocent third
persons where the representation is made in the course of its
business by an agent acting within the general scope of his
authority even though, in the particular case, the agent is
secretly abusing his authority and attempting to perpetrate a
fraud upon his principal or some other person, for his own
ultimate benefit (McIntosh v. Dakota Trust Co., 52 ND 752,
204 NW 818, 40 ALR 1021).
Application of these principles is especially necessary because banks
have a fiduciary relationship with the public and their stability
depends on the confidence of the people in their honesty and
efficiency. Such faith will be eroded where banks do not exercise
strict care in the selection and supervision of its employees, resulting
in prejudice to their depositors.
From the evidence found by respondent Court, it is obvious that petitioner
Rivera has apparent or implied authority to act for the Bank in the matter of
selling its acquired assets. This evidence includes the following:
(a) The petition itself in par. II-i (p. 3) states that Rivera was "at all
times material to this case, Manager of the Property Management
Department of the Bank". By his own admission, Rivera was already
the person in charge of the Bank's acquired assets (TSN, August 6,
1990, pp. 8-9);
(b) As observed by respondent Court, the land was definitely being
sold by the Bank. And during the initial meeting between the buyers
and Rivera, the latter suggested that the buyers' offer should be no
less than P3.3 million (TSN, April 26, 1990, pp. 16-17);
(c) Rivera received the buyers' letter dated August 30, 1987 offering
P3.5 million (TSN, 30 July 1990, p.11);
(d) Rivera signed the letter dated September 1, 1987 offering to sell
the property for P5.5 million (TSN, July 30, p. 11);
Ethics-Chapter III 29
(e) Rivera received the letter dated September 17, 1987 containing the
buyers' proposal to buy the property for P4.25 million (TSN, July 30,
1990, p. 12);
(f) Rivera, in a telephone conversation, confirmed that the P5.5
million was the final price of the Bank (TSN, January 16, 1990, p. 18);
(g) Rivera arranged the meeting between the buyers and Luis Co on
September 28, 1994, during which the Bank's offer of P5.5 million
was confirmed by Rivera (TSN, April 26, 1990, pp. 34-35). At said
meeting, Co, a major shareholder and officer of the Bank, confirmed
Rivera's statement as to the finality of the Bank's counter-offer of
P5.5 million (TSN, January 16, 1990, p. 21; TSN, April 26, 1990, p. 35);
(h) In its newspaper advertisements and announcements, the Bank
referred to Rivera as the officer acting for the Bank in relation to
parties interested in buying assets owned/acquired by the Bank. In
fact, Rivera was the officer mentioned in the Bank's advertisements
offering for sale the property in question (cf. Exhs. "S" and "S-1").
In the very recent case of Limketkai Sons Milling, Inc. vs. Court of Appeals, et.
al.32, the Court, through Justice Jose A. R. Melo, affirmed the doctrine of
apparent authority as it held that the apparent authority of the officer of the
Bank of P.I. in charge of acquired assets is borne out by similar circumstances
surrounding his dealings with buyers.
To be sure, petitioners attempted to repudiate Rivera's apparent authority
through documents and testimony which seek to establish Rivera's actual
authority. These pieces of evidence, however, are inherently weak as they
consist of Rivera's self-serving testimony and various inter-office memoranda
that purport to show his limited actual authority, of which private respondent
cannot be charged with knowledge. In any event, since the issue is apparent
authority, the existence of which is borne out by the respondent Court's
findings, the evidence of actual authority is immaterial insofar as the liability
of a corporation is concerned 33.
Petitioners also argued that since Demetria and Janolo were experienced
lawyers and their "law firm" had once acted for the Bank in three criminal
cases, they should be charged with actual knowledge of Rivera's limited
authority. But the Court of Appeals in its Decision (p. 12) had already made a
factual finding that the buyers had no notice of Rivera's actual authority prior
to the sale. In fact, the Bank has not shown that they acted as its counsel in
respect to any acquired assets; on the other hand, respondent has proven
that Demetria and Janolo merely associated with a loose aggrupation of
lawyers (not a professional partnership), one of whose members (Atty. Susana
Parker) acted in said criminal cases.
Petitioners also alleged that Demetria's and Janolo's P4.25 million counter-
offer in the letter dated September 17, 1987 extinguished the Bank's offer of
P5.5 million 34 .They disputed the respondent Court's finding that "there was
a meeting of minds when on 30 September 1987 Demetria and Janolo
through Annex "L" (letter dated September 30, 1987) "accepted" Rivera's
counter offer of P5.5 million under Annex "J" (letter dated September 17,
1987)", citing the late Justice Paras35, Art. 1319 of the Civil Code 36 and related
Supreme Court rulings starting with Beaumont vs. Prieto 37.

However, the above-cited authorities and precedents cannot apply in the
instant case because, as found by the respondent Court which reviewed the
testimonies on this point, what was "accepted" by Janolo in his letter dated
September 30, 1987 was the Bank's offer of P5.5 million as confirmed and
reiterated to Demetria and Atty. Jose Fajardo by Rivera and Co during their
meeting on September 28, 1987. Note that the said letter of September 30,
1987 begins with"(p)ursuant to our discussion last 28 September 1987 . . .
Petitioners insist that the respondent Court should have believed the
testimonies of Rivera and Co that the September 28, 1987 meeting "was
meant to have the offerors improve on their position of P5.5. million."38
However, both the trial court and the Court of Appeals found petitioners'
testimonial evidence "not credible", and we find no basis for changing this
finding of fact.
Indeed, we see no reason to disturb the lower courts' (both the RTC and the
CA) common finding that private respondents' evidence is more in keeping
with truth and logic that during the meeting on September 28, 1987, Luis
Co and Rivera "confirmed that the P5.5 million price has been passed upon by
the Committee and could no longer be lowered (TSN of April 27, 1990, pp. 34-
35)"39. Hence, assuming arguendo that the counter-offer of P4.25 million
extinguished the offer of P5.5 million, Luis Co's reiteration of the said P5.5
million price during the September 28, 1987 meeting revived the said offer.
And by virtue of the September 30, 1987 letter accepting this revived offer,
there was a meeting of the minds, as the acceptance in said letter was
absolute and unqualified.
We note that the Bank's repudiation, through Conservator Encarnacion, of
Rivera's authority and action, particularly the latter's counter-offer of P5.5
million, as being "unauthorized and illegal" came only on May 12, 1988 or
more than seven (7) months after Janolo' acceptance. Such delay, and the
absence of any circumstance which might have justifiably prevented the Bank
from acting earlier, clearly characterizes the repudiation as nothing more
than a last-minute attempt on the Bank's part to get out of a binding
contractual obligation.
Taken together, the factual findings of the respondent Court point to an
implied admission on the part of the petitioners that the written offer made
on September 1, 1987 was carried through during the meeting of September
28, 1987. This is the conclusion consistent with human experience, truth and
good faith.
It also bears noting that this issue of extinguishment of the Bank's offer of
P5.5 million was raised for the first time on appeal and should thus be
disregarded.
This Court in several decisions has repeatedly adhered to the
principle that points of law, theories, issues of fact and arguments
not adequately brought to the attention of the trial court need not be,
and ordinarily will not be, considered by a reviewing court, as they
cannot be raised for the first time on appeal (Santos vs. IAC, No.
74243, November 14, 1986, 145 SCRA 592).40
. . . It is settled jurisprudence that an issue which was neither averred
in the complaint nor raised during the trial in the court below cannot
Ethics-Chapter III 30
be raised for the first time on appeal as it would be offensive to the
basic rules of fair play, justice and due process (Dihiansan vs. CA,
153 SCRA 713 [1987]; Anchuelo vs. IAC, 147 SCRA 434 [1987]; Dulos
Realty & Development Corp. vs. CA, 157 SCRA 425 [1988]; Ramos vs.
IAC, 175 SCRA 70 [1989]; Gevero vs. IAC, G.R. 77029, August 30,
1990).41
Since the issue was not raised in the pleadings as an affirmative defense,
private respondent was not given an opportunity in the trial court to
controvert the same through opposing evidence. Indeed, this is a matter of
due process. But we passed upon the issue anyway, if only to avoid deciding
the case on purely procedural grounds, and we repeat that, on the basis of
the evidence already in the record and as appreciated by the lower courts, the
inevitable conclusion is simply that there was a perfected contract of sale.
The Third Issue: Is the Contract Enforceable?
The petition alleged42:
Even assuming that Luis Co or Rivera did relay a verbal offer to sell at
P5.5 million during the meeting of 28 September 1987, and it was
this verbal offer that Demetria and Janolo accepted with their letter
of 30 September 1987, the contract produced thereby would be
unenforceable by action there being no note, memorandum or
writing subscribed by the Bank to evidence such contract. (Please see
article 1403[2], Civil Code.)
Upon the other hand, the respondent Court in its Decision (p, 14) stated:
. . . Of course, the bank's letter of September 1, 1987 on the official
price and the plaintiffs' acceptance of the price on September 30,
1987, are not, in themselves, formal contracts of sale. They are
however clear embodiments of the fact that a contract of sale was
perfected between the parties, such contract being binding in
whatever form it may have been entered into (case citations omitted).
Stated simply, the banks' letter of September 1, 1987, taken together
with plaintiffs' letter dated September 30, 1987, constitute in law a
sufficient memorandum of a perfected contract of sale.
The respondent Court could have added that the written communications
commenced not only from September 1, 1987 but from Janolo's August 20,
1987 letter. We agree that, taken together, these letters constitute sufficient
memoranda since they include the names of the parties, the terms and
conditions of the contract, the price and a description of the property as the
object of the contract.
But let it be assumed arguendo that the counter-offer during the meeting on
September 28, 1987 did constitute a "new" offer which was accepted by
Janolo on September 30, 1987. Still, the statute of frauds will not apply by
reason of the failure of petitioners to object to oral testimony proving
petitioner Bank's counter-offer of P5.5 million. Hence, petitioners by such
utter failure to object are deemed to have waived any defects of the
contract under the statute of frauds, pursuant to Article 1405 of the Civil
Code:
Art. 1405. Contracts infringing the Statute of Frauds, referred to in
No. 2 of article 1403, are ratified by the failure to object to the

presentation of oral evidence to prove the same, or by the acceptance
of benefits under them.
As private respondent pointed out in his Memorandum, oral testimony on the
reaffirmation of the counter-offer of P5.5 million is a plenty and the
silence of petitioners all throughout the presentation makes the evidence
binding on them thus;
A Yes, sir, I think it was September 28, 1987 and I was again present
because Atty. Demetria told me to accompany him we were able to
meet Luis Co at the Bank.
xxx xxx xxx
Q Now, what transpired during this meeting with Luis Co of the
Producers Bank?
A Atty. Demetria asked Mr. Luis Co whether the price could be
reduced, sir.
Q What price?
A The 5.5 million pesos and Mr. Luis Co said that the amount cited by
Mr. Mercurio Rivera is the final price and that is the price they
intends (sic) to have, sir.
Q What do you mean?.
A That is the amount they want, sir.
Q What is the reaction of the plaintiff Demetria to Luis Co's
statement (sic) that the defendant Rivera's counter-offer of 5.5
million was the defendant's bank (sic) final offer?
A He said in a day or two, he will make final acceptance, sir.
Q What is the response of Mr. Luis Co?.
A He said he will wait for the position of Atty. Demetria, sir.
[Direct testimony of Atty. Jose Fajardo, TSN, January 16, 1990, at pp. 18-21.]
Q What transpired during that meeting between you and Mr. Luis Co
of the defendant Bank?
A We went straight to the point because he being a busy person, I
told him if the amount of P5.5 million could still be reduced and he
said that was already passed upon by the committee. What the bank
expects which was contrary to what Mr. Rivera stated. And he told me
that is the final offer of the bank P5.5 million and we should indicate
our position as soon as possible.
Q What was your response to the answer of Mr. Luis Co?
A I said that we are going to give him our answer in a few days and
he said that was it. Atty. Fajardo and I and Mr. Mercurio [Rivera] was
with us at the time at his office.
Q For the record, your Honor please, will you tell this Court who was
with Mr. Co in his Office in Producers Bank Building during this
meeting?
A Mr. Co himself, Mr. Rivera, Atty. Fajardo and I.
Q By Mr. Co you are referring to?
A Mr. Luis Co.
Q After this meeting with Mr. Luis Co, did you and your partner
accede on (sic) the counter offer by the bank?
Ethics-Chapter III 31
A Yes, sir, we did.? Two days thereafter we sent our acceptance to the
bank which offer we accepted, the offer of the bank which is P5.5
million.
[Direct testimony of Atty. Demetria, TSN, 26 April 1990, at pp. 34-36.]
Q According to Atty. Demetrio Demetria, the amount of P5.5 million
was reached by the Committee and it is not within his power to
reduce this amount. What can you say to that statement that the
amount of P5.5 million was reached by the Committee?
A It was not discussed by the Committee but it was discussed
initially by Luis Co and the group of Atty. Demetrio Demetria and
Atty. Pajardo (sic) in that September 28, 1987 meeting, sir.
[Direct testimony of Mercurio Rivera, TSN, 30 July 1990, pp. 14-15.]
The Fourth Issue: May the Conservator Revoke
the Perfected and Enforceable Contract.
It is not disputed that the petitioner Bank was under a conservator placed by
the Central Bank of the Philippines during the time that the negotiation and
perfection of the contract of sale took place. Petitioners energetically
contended that the conservator has the power to revoke or overrule actions
of the management or the board of directors of a bank, under Section 28-A of
Republic Act No. 265 (otherwise known as the Central Bank Act) as follows:
Whenever, on the basis of a report submitted by the appropriate
supervising or examining department, the Monetary Board finds that
a bank or a non-bank financial intermediary performing quasi-
banking functions is in a state of continuing inability or
unwillingness to maintain a state of liquidity deemed adequate to
protect the interest of depositors and creditors, the Monetary Board
may appoint a conservator to take charge of the assets, liabilities,
and the management of that institution, collect all monies and debts
due said institution and exercise all powers necessary to preserve the
assets of the institution, reorganize the management thereof, and
restore its viability. He shall have the power to overrule or revoke the
actions of the previous management and board of directors of the
bank or non-bank financial intermediary performing quasi-banking
functions, any provision of law to the contrary notwithstanding, and
such other powers as the Monetary Board shall deem necessary.
In the first place, this issue of the Conservator's alleged authority to revoke
or repudiate the perfected contract of sale was raised for the first time in this
Petition as this was not litigated in the trial court or Court of Appeals. As
already stated earlier, issues not raised and/or ventilated in the trial court, let
alone in the Court of Appeals, "cannot be raised for the first time on appeal
as it would be offensive to the basic rules of fair play, justice and due
process."43
In the second place, there is absolutely no evidence that the Conservator, at
the time the contract was perfected, actually repudiated or overruled said
contract of sale. The Bank's acting conservator at the time, Rodolfo Romey,
never objected to the sale of the property to Demetria and Janolo. What
petitioners are really referring to is the letter of Conservator Encarnacion,
who took over from Romey after the sale was perfected on September 30,

1987 (Annex V, petition) which unilaterally repudiated not the contract
but the authority of Rivera to make a binding offer and which unarguably
came months after the perfection of the contract. Said letter dated May 12,
1988 is reproduced hereunder:
May 12, 1988
Atty. Noe C. Zarate
Zarate Carandang Perlas & Ass.
Suite 323 Rufino Building
Ayala Avenue, Makati, Metro-Manila
Dear Atty. Zarate:
This pertains to your letter dated May 5, 1988 on behalf of Attys.
Janolo and Demetria regarding the six (6) parcels of land located at
Sta. Rosa, Laguna.
We deny that Producers Bank has ever made a legal counter-offer to
any of your clients nor perfected a "contract to sell and buy" with any
of them for the following reasons.
In the "Inter-Office Memorandum" dated April 25, 1986 addressed to
and approved by former Acting Conservator Mr. Andres I. Rustia,
Producers Bank Senior Manager Perfecto M. Pascua detailed the
functions of Property Management Department (PMD) staff and
officers (Annex A.), you will immediately read that Manager Mr.
Mercurio Rivera or any of his subordinates has no authority, power or
right to make any alleged counter-offer. In short, your lawyer-clients
did not deal with the authorized officers of the bank.
Moreover, under Sec. 23 and 36 of the Corporation Code of the
Philippines (Bates Pambansa Blg. 68.) and Sec. 28-A of the Central
Bank Act (Rep. Act No. 265, as amended), only the Board of
Directors/Conservator may authorize the sale of any property of the
corportion/bank..
Our records do not show that Mr. Rivera was authorized by the old
board or by any of the bank conservators (starting January, 1984) to
sell the aforesaid property to any of your clients. Apparently, what
took place were just preliminary discussions/consultations between
him and your clients, which everyone knows cannot bind the Bank's
Board or Conservator.
We are, therefore, constrained to refuse any tender of payment by
your clients, as the same is patently violative of corporate and
banking laws. We believe that this is more than sufficient legal
justification for refusing said alleged tender.
Rest assured that we have nothing personal against your clients. All
our acts are official, legal and in accordance with law. We also have
no personal interest in any of the properties of the Bank.
Please be advised accordingly.
Very truly yours,
(Sgd.) Leonida T. Encarnacion
LEONIDA T. EDCARNACION
Acting Conservator
Ethics-Chapter III 32
In the third place, while admittedly, the Central Bank law gives vast and far-
reaching powers to the conservator of a bank, it must be pointed out that
such powers must be related to the "(preservation of) the assets of the bank,
(the reorganization of) the management thereof and (the restoration of) its
viability." Such powers, enormous and extensive as they are, cannot extend to
the post-facto repudiation of perfected transactions, otherwise they would
infringe against the non-impairment clause of the Constitution 44. If the
legislature itself cannot revoke an existing valid contract, how can it delegate
such non-existent powers to the conservator under Section 28-A of said law?
Obviously, therefore, Section 28-A merely gives the conservator power to
revoke contracts that are, under existing law, deemed to be defective i.e.,
void, voidable, unenforceable or rescissible. Hence, the conservator merely
takes the place of a bank's board of directors. What the said board cannot do
such as repudiating a contract validly entered into under the doctrine of
implied authority the conservator cannot do either. Ineluctably, his power
is not unilateral and he cannot simply repudiate valid obligations of the Bank.
His authority would be only to bring court actions to assail such contracts
as he has already done so in the instant case. A contrary understanding of the
law would simply not be permitted by the Constitution. Neither by common
sense. To rule otherwise would be to enable a failing bank to become solvent,
at the expense of third parties, by simply getting the conservator to
unilaterally revoke all previous dealings which had one way or another or
come to be considered unfavorable to the Bank, yielding nothing to perfected
contractual rights nor vested interests of the third parties who had dealt with
the Bank.
The Fifth Issue: Were There Reversible Errors of Facts?
Basic is the doctrine that in petitions for review under Rule 45 of the Rules of
Court, findings of fact by the Court of Appeals are not reviewable by the
Supreme Court. In Andres vs. Manufacturers Hanover & Trust Corporation, 45,
we held:
. . . The rule regarding questions of fact being raised with this Court
in a petition for certiorari under Rule 45 of the Revised Rules of
Court has been stated in Remalante vs. Tibe, G.R. No. 59514, February
25, 1988, 158 SCRA 138, thus:
The rule in this jurisdiction is that only questions of law may be
raised in a petition for certiorari under Rule 45 of the Revised Rules
of Court. "The jurisdiction of the Supreme Court in cases brought to
it from the Court of Appeals is limited to reviewing and revising the
errors of law imputed to it, its findings of the fact being conclusive "
[Chan vs. Court of Appeals, G.R. No. L-27488, June 30, 1970, 33 SCRA
737, reiterating a long line of decisions]. This Court has emphatically
declared that "it is not the function of the Supreme Court to analyze
or weigh such evidence all over again, its jurisdiction being limited to
reviewing errors of law that might have been committed by the lower
court" (Tiongco v. De la Merced, G. R. No. L-24426, July 25, 1974, 58
SCRA 89; Corona vs. Court of Appeals, G.R. No. L-62482, April 28,
1983, 121 SCRA 865; Baniqued vs. Court of Appeals, G. R. No. L-
47531, February 20, 1984, 127 SCRA 596). "Barring, therefore, a

showing that the findings complained of are totally devoid of
support in the record, or that they are so glaringly erroneous as to
constitute serious abuse of discretion, such findings must stand, for
this Court is not expected or required to examine or contrast the oral
and documentary evidence submitted by the parties" [Santa Ana, Jr.
vs. Hernandez, G. R. No. L-16394, December 17, 1966, 18 SCRA 973]
[at pp. 144-145.]
Likewise, in Bernardo vs. Court of Appeals 46, we held:
The resolution of this petition invites us to closely scrutinize the
facts of the case, relating to the sufficiency of evidence and the
credibility of witnesses presented. This Court so held that it is not
the function of the Supreme Court to analyze or weigh such evidence
all over again. The Supreme Court's jurisdiction is limited to
reviewing errors of law that may have been committed by the lower
court. The Supreme Court is not a trier of facts. . . .
As held in the recent case of Chua Tiong Tay vs. Court of Appeals and
Goldrock Construction and Development Corp. 47:
The Court has consistently held that the factual findings of the trial
court, as well as the Court of Appeals, are final and conclusive and
may not be reviewed on appeal. Among the exceptional
circumstances where a reassessment of facts found by the lower
courts is allowed are when the conclusion is a finding grounded
entirely on speculation, surmises or conjectures; when the inference
made is manifestly absurd, mistaken or impossible; when there is
grave abuse of discretion in the appreciation of facts; when the
judgment is premised on a misapprehension of facts; when the
findings went beyond the issues of the case and the same are
contrary to the admissions of both appellant and appellee. After a
careful study of the case at bench, we find none of the above grounds
present to justify the re-evaluation of the findings of fact made by
the courts below.
In the same vein, the ruling of this Court in the recent case of South Sea
Surety and Insurance Company Inc. vs. Hon. Court of Appeals, et al. 48 is
equally applicable to the present case:
We see no valid reason to discard the factual conclusions of the
appellate court, . . . (I)t is not the function of this Court to assess and
evaluate all over again the evidence, testimonial and documentary,
adduced by the parties, particularly where, such as here, the findings
of both the trial court and the appellate court on the matter coincide.
(emphasis supplied)
Petitioners, however, assailed the respondent Court's Decision as "fraught
with findings and conclusions which were not only contrary to the evidence
on record but have no bases at all," specifically the findings that (1) the
"Bank's counter-offer price of P5.5 million had been determined by the past
due committee and approved by conservator Romey, after Rivera presented
the same for discussion" and (2) "the meeting with Co was not to scale down
the price and start negotiations anew, but a meeting on the already
determined price of P5.5 million" Hence, citing Philippine National Bank vs.
Ethics-Chapter III 33
Court of Appeals 49, petitioners are asking us to review and reverse such
factual findings.
The first point was clearly passed upon by the Court of Appeals 50, thus:
There can be no other logical conclusion than that when, on
September 1, 1987, Rivera informed plaintiffs by letter that "the
bank's counter-offer is at P5.5 Million for more than 101 hectares on
lot basis, "such counter-offer price had been determined by the Past
Due Committee and approved by the Conservator after Rivera had
duly presented plaintiffs' offer for discussion by the Committee . . .
Tersely put, under the established fact, the price of P5.5 Million was,
as clearly worded in Rivera's letter (Exh. "E"), the official and
definitive price at which the bank was selling the property. (p. 11, CA
Decision)
xxx xxx xxx
. . . The argument deserves scant consideration. As pointed out by
plaintiff, during the meeting of September 28, 1987 between the
plaintiffs, Rivera and Luis Co, the senior vice-president of the bank,
where the topic was the possible lowering of the price, the bank
official refused it and confirmed that the P5.5 Million price had been
passed upon by the Committee and could no longer be lowered (TSN
of April 27, 1990, pp. 34-35) (p. 15, CA Decision).
The respondent Court did not believe the evidence of the petitioners on this
point, characterizing it as "not credible" and "at best equivocal and
considering the gratuitous and self-serving character of these declarations,
the bank's submissions on this point do not inspire belief."
To become credible and unequivocal, petitioners should have presented then
Conservator Rodolfo Romey to testify on their behalf, as he would have been
in the best position to establish their thesis. Under the rules on evidence 51,
such suppression gives rise to the presumption that his testimony would
have been adverse, if produced.
The second point was squarely raised in the Court of Appeals, but
petitioners' evidence was deemed insufficient by both the trial court and the
respondent Court, and instead, it was respondent's submissions that were
believed and became bases of the conclusions arrived at.
In fine, it is quite evident that the legal conclusions arrived at from the
findings of fact by the lower courts are valid and correct. But the petitioners
are now asking this Court to disturb these findings to fit the conclusion they
are espousing, This we cannot do.
To be sure, there are settled exceptions where the Supreme Court may
disregard findings of fact by the Court of Appeals 52. We have studied both
the records and the CA Decision and we find no such exceptions in this case.
On the contrary, the findings of the said Court are supported by a
preponderance of competent and credible evidence. The inferences and
conclusions are seasonably based on evidence duly identified in the Decision.
Indeed, the appellate court patiently traversed and dissected the issues
presented before it, lending credibility and dependability to its findings. The
best that can be said in favor of petitioners on this point is that the factual
findings of respondent Court did not correspond to petitioners' claims, but

were closer to the evidence as presented in the trial court by private
respondent. But this alone is no reason to reverse or ignore such factual
findings, particularly where, as in this case, the trial court and the appellate
court were in common agreement thereon. Indeed, conclusions of fact of a
trial judge as affirmed by the Court of Appeals are conclusive upon this
Court, absent any serious abuse or evident lack of basis or capriciousness of
any kind, because the trial court is in a better position to observe the
demeanor of the witnesses and their courtroom manner as well as to examine
the real evidence presented.
Epilogue.
In summary, there are two procedural issues involved forum-shopping and
the raising of issues for the first time on appeal [viz., the extinguishment of
the Bank's offer of P5.5 million and the conservator's powers to repudiate
contracts entered into by the Bank's officers] which per se could justify the
dismissal of the present case. We did not limit ourselves thereto, but delved
as well into the substantive issues the perfection of the contract of sale
and its enforceability, which required the determination of questions of fact.
While the Supreme Court is not a trier of facts and as a rule we are not
required to look into the factual bases of respondent Court's decisions and
resolutions, we did so just the same, if only to find out whether there is
reason to disturb any of its factual findings, for we are only too aware of the
depth, magnitude and vigor by which the parties through their respective
eloquent counsel, argued their positions before this Court.
We are not unmindful of the tenacious plea that the petitioner Bank is
operating abnormally under a government-appointed conservator and "there
is need to rehabilitate the Bank in order to get it back on its feet . . . as many
people depend on (it) for investments, deposits and well as employment. As
of June 1987, the Bank's overdraft with the Central Bank had already reached
P1.023 billion . . . and there were (other) offers to buy the subject properties
for a substantial amount of money." 53
While we do not deny our sympathy for this distressed bank, at the same
time, the Court cannot emotionally close its eyes to overriding considerations
of substantive and procedural law, like respect for perfected contracts, non-
impairment of obligations and sanctions against forum-shopping, which must
be upheld under the rule of law and blind justice.
This Court cannot just gloss over private respondent's submission that, while
the subject properties may currently command a much higher price, it is
equally true that at the time of the transaction in 1987, the price agreed upon
of P5.5 million was reasonable, considering that the Bank acquired these
properties at a foreclosure sale for no more than P3.5 million 54. That the
Bank procrastinated and refused to honor its commitment to sell cannot now
be used by it to promote its own advantage, to enable it to escape its binding
obligation and to reap the benefits of the increase in land values. To rule in
favor of the Bank simply because the property in question has algebraically
accelerated in price during the long period of litigation is to reward
lawlessness and delays in the fulfillment of binding contracts. Certainly, the
Court cannot stamp its imprimatur on such outrageous proposition.
Ethics-Chapter III 34
WHEREFORE, finding no reversible error in the questioned Decision and
Resolution, the Court hereby DENIES the petition. The assailed Decision is
AFFIRMED. Moreover, petitioner Bank is REPRIMANDED for engaging in
forum-shopping and WARNED that a repetition of the same or similar acts
will be dealt with more severely. Costs against petitioners.
SO ORDERED.
Narvasa, C.J., Davide Jr., Melo and Francisco, JJ., concur.
[G.R. No. 159486-88 : November 25, 2003]
PRESIDENT JOSEPH EJERCITO ESTRADA, Petitioner, v. THE HONORABLE
SANDIGANBAYAN [SPECIAL DIVISION], HON. MINITA CHICO-NAZARIO, HON.
EDILBERTO SANDOVAL, HON. TERESITA LEONARDO-DE CASTRO, and THE
PEOPLE OF THE PHILIPPINES, Respondents.
RESOLUTION
PER CURIAM:
On 23 September 2003, this Court issued its resolution in the above-
numbered case; it read:
The case for consideration has been brought to this Court via a Petition for
Certiorari under Rule 65 of the Rules of Court filed by Joseph Ejercito
Estrada, acting through his counsel Attorney Alan F. Paguia, against the
Sandiganbayan, et al. The Petition prays
1. That Chief Justice Davide and the rest of the members of
the Honorable Court disqualify themselves from hearing
and deciding this petition;
2. That the assailed resolutions of the Sandiganbayan be
vacated and set aside; and
3. That Criminal Cases No. 26558, No. 26565 and No. 26905
pending before the Sandiganbayan be dismissed for lack of
jurisdiction.
Attorney Alan F. Paguia, speaking for petitioner, asserts that the inhibition of
the members of the Supreme Court from hearing the petition is called for
under Rule 5.10 of the Code of Judicial Conduct prohibiting justices or
judges from participating in any partisan political activity which proscription,
according to him, the justices have violated by attending the EDSA 2 Rally
and by authorizing the assumption of Vice-President Gloria Macapagal Arroyo
to the Presidency in violation of the 1987 Constitution. Petitioner contends
that the justices have thereby prejudged a case that would assail the legality
of the act taken by President Arroyo. The subsequent decision of the Court in
Estrada v. Arroyo (353 SCRA 452 and 356 SCRA 108) is, petitioner states, a
patent mockery of justice and due process.
Attorney Paguia first made his appearance for petitioner when he filed an
Omnibus Motion on 19 May 2003, before the Sandiganbayan, asking that the
appointment of counsels de officio (sic) be declared functus officio and that,
being the now counsel de parte, he be notified of all subsequent proceedings
in Criminal Cases No. 26558, No. 26565 and No. 26905 pending therein.
Finally, Attorney Paguia asked that all the foregoing criminal cases against his
client be dismissed.

During the hearing of the Omnibus Motion on 30 May 2003, petitioner
presented to the court several portions of the book, entitled Reforming the
Judiciary, written by Justice Artemio Panganiban, to be part of the evidence
for the defense. On 9 June 2003, petitioner filed a motion pleading, among
other things, that
a) x x x President Estrada be granted the opportunity to prove
the truth of the statements contained in Justice
Artemio Panganibans book, REFORMING THE
JUDICIARY, in relation to the prejudgment
committed by the Supreme Court justices against
President Estrada in the subject case/s of Estrada v.
Arroyo, 353 SCRA 452 and 356 SCRA 108; and,
b) A subpoena ad testificandum and duces tecum be issued to
Justice Artemio Panganiban, Justice Antonio Carpio,
Justice Renato Corona, Secretary Angelo Reyes of the
Department of National Defense, Vice President
Gloria Macapagal-Arroyo, Senator Aquilino Pimentel,
Jr., and Chief Justice Hilario Davide, Jr. for them to
testify and bring whatever supporting documents
they may have in relation to their direct and indirect
participation in the proclamation of Vice President
Gloria Macapagal Arroyo on January 20, 2001, as
cited in the book of Justice Panganiban, including the
material events that led to that proclamation and the
ruling/s in the Estrada vs. Arroyo, supra. (Rollo, pp.
6-7.)
The truth referred to in paragraph a) of the relief sought in the motion of
petitioner pertains to what he claims should have been included in the
resolution of the Sandiganbayan; viz:
The request of the movant is simply for the Court to include in its Joint
Resolution the TRUTH of the acts of Chief Justice Davide, et al., last January
20, 2001 in:
a) going to EDSA 2;
b) authorizing the proclamation of Vice-President Arroyo
as President on the ground of permanent disability
even without proof of compliance with the
corresponding constitutional conditions, e.g., written
declaration by either the President or majority of his
cabinet; and
c) actually proclaiming Vice-President Arroyo on that
same ground of permanent disability.
It is patently unreasonable for the Court to refuse to include these material
facts which are obviously undeniable. Besides, it is the only defense of
President Estrada. (Petition, Rollo, pp. 13-14.)
On 2 July 2003, the Sandiganbayan issued an order denying the foregoing
motion, as well as the motion to dismiss, filed by petitioner. Forthwith,
petitioner filed a Mosyong Pangrekonsiderasyon of the foregoing order.
According to Attorney Paguia, during the hearing of his Mosyong
Ethics-Chapter III 35
Pangrekonsiderasyon on 11 June 2003, the three justices of the Special
Division of the Sandiganbayan made manifest their bias and partiality against
his client. Thus, he averred, Presiding Justice Minita V. Chico-Nazario
supposedly employed foul and disrespectful language when she blurted out,
Magmumukha naman kaming gago, (Rollo, p. 13.) and Justice Teresita
Leonardo-De Castro characterized the motion as insignificant even before the
prosecution could file its comments or opposition thereto, (Rollo, p. 12.)
remarking in open court that to grant Estradas motion would result in chaos
and disorder. (Ibid.) Prompted by the alleged bias and partial attitude of the
Sandiganbayan justices, Attorney Paguia filed, on 14 July 2003, a motion for
their disqualification. On 31 July 2003, petitioner received the two assailed
resolutions, i.e., the resolution (Promulgated on 30 July 2003.) of 28 July
2003, denying petitioners motion for reconsideration of 6 July 2003; viz:
WHEREFORE, premises considered, accused-movant Joseph Ejercito Estradas
Mosyong Pangrekonsiderasyon (Na tumutukoy sa Joint Resolution ng Hulyo 2,
2003) dated July 6, 2003 is DENIED for lack of merit. (Rollo, p. 37.)
and the resolution (Promulgated on 30 July 2003.) of 25 July 2003, denying
petitioners motion for disqualification of 14 July 2003; viz:
WHEREFORE, prescinding from all the foregoing, the Court, for want of merit,
hereby DENIES the Motion for Disqualification. (Rollo, p. 48.)
The instant petition assailing the foregoing orders must be DISMISSED for
gross insufficiency in substance and for utter lack of merit. The
Sandiganbayan committed no grave abuse of discretion, an indispensable
requirement to warrant a recourse to the extraordinary relief of petition for
certiorari under Rule 65 of the Revised Rules of Civil Procedure. On the one
hand, petitioner would disclaim the authority and jurisdiction of the
members of this tribunal and, on the other hand, he would elevate the
petition now before it to challenge the two resolutions of the Sandiganbayan.
He denounces the decision as being a patent mockery of justice and due
process. Attorney Pagula went on to state that-
The act of the public officer, if LAWFUL, is the act of the public office. But the
act of the public officer, if UNLAWFUL, is not the act of the public office.
Consequently, the act of the justices, if LAWFUL, is the act of the Supreme
Court. But the act of the justices, if UNLAWFUL, is not the act of the Supreme
Court. It is submitted that the Decision in ESTRADA vs. ARROYO being
patently unlawful in view of Rule 5.10 of the CODE OF JUDICIAL CONDUCT, is
not the act of the Supreme Court but is merely the wrong or trespass of those
individual Justices who falsely spoke and acted in the name of the Supreme
Court. (Urbano vs. Chavez, 183 SCRA [347]). Furthermore, it would seem
absurd to allow the Justices to use the name of the Supreme Court as a shield
for their UNLAWFUL act. (Petition, Rollo, p. 11.)
Criticism or comment made in good faith on the correctness or wrongness,
soundness or unsoundness, of a decision of the Court would be welcome for,
if well-founded, such reaction can enlighten the court and contribute to the
correction of an error if committed. (In Re Sotto, 82 Phil 595.)
The ruling in Estrada v. Arroyo, being a final judgment, has long put to end
any question pertaining to the legality of the ascension of Arroyo into the
presidency. By reviving the issue on the validity of the assumption of Mme.

Gloria Macapagal-Arroyo to the presidency, Attorney Paguia is vainly seeking
to breathe life into the carcass of a long dead issue.
Attorney Paguia has not limited his discussions to the merits of his clients
case within the judicial forum; indeed, he has repeated his assault on the
Court in both broadcast and print media. Rule 13.02 of the Code of
Professional Responsibility prohibits a member of the bar from making such
public statements on any pending case tending to arouse public opinion for
or against a party. By his acts, Attorney Paguia may have stoked the fires of
public dissension and posed a potentially dangerous threat to the
administration of justice.
It is not the first time that Attorney Paguia has exhibited similar conduct
towards the Supreme Court. In a letter, dated 30 June 2003, addressed to
Chief Justice Hilario G. Davide, Jr., and Associate Justice Artemio V.
Panganiban, he has demanded, in a clearly disguised form of forum shopping,
for several advisory opinions on matters pending before the Sandiganbayan.
In a resolution, dated 08 July 2003, this Court has strongly warned Attorney
Alan Paguia, on pain of disciplinary sanction, to desist from further making,
directly or indirectly, similar submissions to this Court or to its Members.
But, unmindful of the well-meant admonition to him by the Court, Attorney
Paguia appears to persist on end.
WHEREFORE, the instant petition for certiorari is DISMISSED, and the Court
hereby orders Attorney Alan Paguia, counsel for petitioner Joseph Ejercito
Estrada, to SHOW CAUSE, within ten days from notice hereof, why he should
not be sanctioned for conduct unbecoming a lawyer and an officer of the
Court.
On 10 October 2003, Atty. Paguia submitted his compliance with the show-
cause order. In a three-page pleading, Atty. Paguia, in an obstinate display of
defiance, repeated his earlier claim of political partisanship against the
members of the Court.
Canon 5.10 of the Code of Judicial Conduct, which Atty. Paguia has tirelessly
quoted to give some semblance of validity for his groundless attack on the
Court and its members, provides -
Rule 5.10. A judge is entitled to entertain personal views on political
questions. But to avoid suspicion of political partisanship, a judge shall not
make political speeches, contribute to party funds, publicly endorse
candidates for political office or participate in other partisan political
activities.
Section 79(b) of the Omnibus Election Code defines the term partisan political
activities; the law states:
The term election campaign or partisan political activity refers to an act
designed to promote the election or defeat of a particular candidate or
candidates to a public office which shall include:
(1) Forming organizations, associations, clubs, committees or other groups of
persons for the purpose of soliciting votes and/or undertaking any campaign
for or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies, parades, or
other similar assemblies, for the purpose of soliciting votes and/or
undertaking any campaign or propaganda for or against a candidate.
Ethics-Chapter III 36
(3) Making speeches, announcements or commentaries, or holding interviews
for or against the election of any candidate for public office;
(4) Publishing or distributing campaign literature or materials designed to
support or oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or against a
candidate.
It should be clear that the phrase partisan political activities, in its statutory
context, relates to acts designed to cause the success or the defeat of a
particular candidate or candidates who have filed certificates of candidacy to
a public office in an election. The taking of an oath of office by any incoming
President of the Republic before the Chief Justice of the Philippines is a
traditional official function of the Highest Magistrate. The assailed presence
of other justices of the Court at such an event could be no different from
their appearance in such other official functions as attending the Annual
State of the Nation Address by the President of the Philippines before the
Legislative Department.
The Supreme Court does not claim infallibility; it will not denounce criticism
made by anyone against the Court for, if well-founded, can truly have
constructive effects in the task of the Court, but it will not countenance any
wrongdoing nor allow the erosion of our peoples faith in the judicial system,
let alone, by those who have been privileged by it to practice law in the
Philippines.
Canon 11 of the Code of Professional Responsibility mandates that the lawyer
should observe and maintain the respect due to the courts and judicial
officers and, indeed, should insist on similar conduct by others. In liberally
imputing sinister and devious motives and questioning the impartiality,
integrity, and authority of the members of the Court, Atty. Paguia has only
succeeded in seeking to impede, obstruct and pervert the dispensation of
justice.
The attention of Atty. Paguia has also been called to the mandate of Rule
13.02 of the Code of Professional Responsibility prohibiting a member of
the bar from making such public statements on a case that may tend to
arouse public opinion for or against a party. Regrettably, Atty. Paguia has
persisted in ignoring the Courts well-meant admonition.
On the 7th September 2003 issue of the Daily Tribune, Atty. Paguia wrote
to say -
What is the legal effect of that violation of President Estradas right to due
process of law? It renders the decision in Estrada vs. Arroyo
unconstitutional and void. The rudiments of fair play were not observed.
There was no fair play since it appears that when President Estrada filed
his petition, Chief Justice Davide and his fellow justices had already
committed to the other party - GMA - with a judgment already made and
waiting to be formalized after the litigants shall have undergone the
charade of a formal hearing. After the justices had authorized the
proclamation of GMA as president, can they be expected to voluntarily
admit the unconstitutionality of their own act?
Unrelentingly, Atty. Paguia has continued to make public statements of like
nature.

The Court has already warned Atty. Paguia, on pain of disciplinary sanction,
to become mindful of his grave responsibilities as a lawyer and as an officer
of the Court. Apparently, he has chosen not to at all take heed.
WHEREFORE, Attorney Alan Paguia is hereby indefinitely suspended from the
practice of law, effective upon his receipt hereof, for conduct unbecoming a
lawyer and an officer of the Court.
Let copies of this resolution be furnished the Office of the Bar Confidant, the
Integrated Bar of the Philippines and all courts of the land through the Office
of the Court Administrator.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr.,
Azcuna, and Tinga, JJ., concur.
Carpio, J., no part.
G.R. No. 90083 October 4, 1990
KHALYXTO PEREZ MAGLASANG, accused-petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Presiding Judge ERNESTO B. TEMPLADO (San
Carlos City Court), Negros Occidental, respondents.
Marceliano L. Castellano for petitioner.
RESOLUTION
PER CURIAM:
On June 22, 1989, a petition for certiorari 1 entitled "Khalyxto Perez
Maglasang vs. People of the Philippines, Presiding Judge, Ernesto B. Templado
(San Carlos City Court) Negros Occidental," was filed by registered mail with
the Court. Due to non-compliance with the requirements of Circular No. 1-88
of the Court, specifically the non- payment of P316.50 for the legal fees and
the non-attachment of the duplicate originals or duly certified true copies of
the questioned decision and orders of the respondent judge denying the
motion for reconsideration, the Court dismissed the petition on July 26,
1989. 2
On September 9, 1989, Atty. Marceliano L. Castellano, as counsel of the
petitioner, moved for a reconsideration of the resolution dismissing the
petition. 3 This time, the amount of P316.50 was remitted and the Court was
furnished with a duplicate copy of the respondent judge's decision, and also
the IBP O.R. No. and the date of the payment of his membership dues. The
motion for reconsideration did not contain the duplicate original or certified
true copies of the assailed orders. Thus, in a Resolution dated October 18,
1989, the motion for reconsideration was denied "with FINALITY." 4
Three months later, or on January 22, 1990 to be exact, the Court received
from Atty. Castellano a copy of a complaint dated December 19, 1989, filed
with the Office of the President of the Philippines whereby Khalyxto Perez
Maglasang, through his lawyer, Atty. Castellano, as complainant, accused all
the five Justices of the Court's Second Division with "biases and/or ignorance
of the law or knowingly rendering unjust judgments or resolution." 5 The
complaint was signed by Atty. Castellano "for the complainant" with the
Ethics-Chapter III 37
conformity of one Calixto B. Maglasang, allegedly the father of accused-
complainant Khalyxto. 6 By reason of the strong and intemperate language of
the complaint and its improper filing with the Office of the President, which,
as he should know as a lawyer, has no jurisdiction to discipline, much more,
remove, Justices of the Supreme Court, on February 7, 1990, Atty. Castellano
was required to show cause why he should not be punished for contempt or
administratively dealt with for improper conduct. 7 On March 21, 1990, Atty.
Castellano filed by registered mail his "Opposition To Cite For Contempt Or
Administratively Dealt With For An Improper Conduct (sic)." 8
In his "Opposition", Atty. Castellano claimed that the complaint "was a
constructive criticism intended to correct in good faith the erroneous and
very strict practices of the Justices concerned, as Respondents (sic). 9 Atty.
Castellano further disputed the authority and jurisdiction of the Court in
issuing the Resolution requiring him to show cause inasmuch as "they are
Respondents in this particular case and no longer as Justices and as such
they have no more jurisdiction to give such order." 10 Thus, according to him,
"the most they (Justices) can do by the mandate of the law and procedure (sic)
is to answer the complaint satisfactorily so that they will not be punished in
accordance with the law just like a common tao." 11
Notwithstanding his claim that the complaint was a "constructive criticism,"
the Court finds the various statements made by Atty. Castellano in the
complaint he lodged with the Office of the President of the Philippines and in
his "Opposition" filed with the Court portions of which read as follows:
VI
That with all these injustices of the 2nd Division, as assigned
to that most Honorable Supreme Court, the complainant was
legally constrained to file this Administrative Complaint to
our Motherly President who is firm and determined to phase-
out all the scalawags (Marcos Appointees and Loyalists) still
in your administration without bloodshed but by honest and
just investigations, which the accused-complainant concurs
to such procedure and principle, or otherwise, he could have
by now a rebel with the undersigned with a cause for being
maliciously deprived or unjustly denied of Equal Justice to be
heard by our Justices designated to the Highest and most
Honorable Court of the Land (Supreme Court); 12 (Emphasis
ours.)
VII
That the Honorable Supreme Court as a Court has no fault at
all for being Constitutionally created, but the Justices
assigned therein are fallables (sic), being bias (sic), playing
ignorance of the law and knowingly rendering unjust
Resolutions the reason observed by the undersigned and
believed by him in good faith, is that they are may be Marcos-
appointees, whose common intention is to sabotage the
Aquino Administration and to rob from innocent Filipino
people the genuine Justice and Democracy, so that they will be
left in confusion and turmoil to their advantage and to the

prejudice of our beloved President's honest, firm and
determined Decision to bring back the real Justice in all our
Courts, for the happiness, contentment and progress of your
people and the only country which God has given us.
PHILIPPINES. 13 (Emphasis ours.)
VIII
That all respondents know the law and the pure and simple
meaning of Justice, yet they refused to grant to the poor and
innocent accused-complainant, so to save their brethren in
rank and office (Judiciary) Judge Ernesto B. Templado, . . . 14
IX
. . . If such circulars were not known to the undersigned, it's
the fault of the Justices of the Honorable Supreme Court, the
dismissal of the petition was based more of money reasons. . .
. This is so for said Equal Justice is our very Breath of Life to
every Filipino, who is brave to face the malicious acts of the
Justices of the Second Division, Supreme Court. By reason of
fear for the truth Respondents ignore the equal right of the
poor and innocent-accused (complainant) to be heard against
the rich and high-ranking person in our Judiciary to be heard
in equal justice in our Honorable Court, for the respondents
is too expensive and can't be reached by an ordinary man for
the Justices therein are inconsiderate, extremely strict and
meticulous to the common tao and hereby grossly violate
their Oath of Office and our Constitution "to give all possible
help and means to give equal Justice to any man, regardless
of ranks and status in life" 15 (Emphasis ours.)
xxx xxx xxx
5. That the undersigned had instantly without delay filed a
Motion for Reconsideration to the Resolution which carries
with it a final denial of his appeal by complying (sic) all the
requirements needed for a valid appeal yet the respondents
denied just the same which legally hurt the undersigned in
the name of Justice, for the Respondents-Justices, were so
strict or inhumane and so inconsiderate that there
despensation (sic) of genuine justice was too far and beyond
the reach of the Accused-Appellant, as a common tao, as
proved by records of both cases mentioned above. 16
xxx xxx xxx
D. That by nature a contempt order is a one sided weapon
commonly abused by Judges and Justices, against practicing
lawyers, party-litigants and all Filipino people in general for
no Judges or Justices since the beginning of our Court
Records were cited for contempt by any presiding Judge.
That this weapon if maliciously applied is a cruel means to
silence a righteous and innocent complainant and to favor
any person with close relation. 17
Ethics-Chapter III 38
scurrilous and contumacious. His allegations that the Court in
dismissing his petition did so "to save their brethren in rank and
office (Judiciary) Judge Ernesto B. Templado," and that the dismissal
was "based more for (sic) money reasons;" and his insinuation that
the Court maintains a double standard in dispensing justice one
set for the rich and another for the poor went beyond the bounds
of "constructive criticism." They are not relevant to the cause of his
client. On the contrary, they cast aspersion on the Court's integrity as
a neutral and final arbiter of all justiciable controversies brought
before it. Atty. Castellano should know that the Court in resolving
complaints yields only to the records before it and not to any
extraneous influence as he disparagingly intimates.
It bears stress that the petition was dismissed initially by the Court for the
counsel's failure to fully comply with the requirements laid down in Circular
No. 1-88, a circular on expeditious disposition of cases, adopted by the Court
on November 8, 1988, but effective January 1, 1989, after due publication. It
is true that Atty. Castellano later filed on behalf of his client a motion for
reconsideration and remitted the necessary legal fees, 18 furnished the Court
with a duplicate original copy of the assailed trial court's decision, 19 and
indicated his IBP O.R. No. and the date he paid his dues. 20 But he still fell
short in complying fully with the requirements of Circular No. 1-88. He failed
to furnish the Court with duplicate original or duty certified true copies of
the other questioned orders issued by the respondent trial court judge. At
any rate, the explanation given by Atty. Castellano did not render his earlier
negligence excusable. Thus, as indicated in our Resolution dated October 18,
1989 which denied with finality his motion for reconsideration, "no valid or
compelling reason (having been) adduced to warrant the reconsideration
sought." Precisely, under paragraph 5 of Circular No. 1-88 it is provided that
"(S)ubsequent compliance with the above requirements will not warrant
reconsideration of the order of dismissal unless it be shown that such non-
compliance was due to compelling reasons."
It is clear that the case was lost not by the alleged injustices Atty. Castellano
irresponsibly ascribed to the members of the Court's Second Division, but
simply because of his inexcusable negligence and incompetence. Atty.
Castellano, however, seeks to pass on the blame for his deficiencies to the
Court, in the hope of salvaging his reputation before his client. Unfortunately,
the means by which Atty. Castellano hoped to pass the buck so to speak, are
grossly improper. As an officer of the Court, he should have known better
than to smear the honor and integrity of the Court just to keep the
confidence of his client. Time and again we have emphasized that a "lawyer's
duty is not to his client but to the administration of justice; to that end, his
client's success is wholly subordinate; and his conduct ought to and must
always be scrupulously observant of law and ethics." 21 Thus, "while a lawyer
must advocate his client's cause in utmost earnest and with the maximum
skill he can marshal, he is not at liberty to resort to arrogance, intimidation,
and innuendo." 22
To be sure, the Court does not pretend to be immune from criticisms. After
all, it is through the criticism of its actions that the Court, composed of
 Ethics-Chapter III 39

fallible mortals, hopes to correct whatever mistake it may have unwittingly from the practice of law throughout the Philippines for six (6) months as
committed. But then again, "[i]t is the cardinal condition of all such criticism soon as this Resolution becomes final, with a WARNING that a repetition of
that it shall be bona fide and shall not spill over the walls of decency and any misconduct on his part will be dealt with more severely. Let notice of this
propriety. A wide chasm exists between fair criticism, on the one hand, and Resolution be entered in Atty. Castellano's record, and be served on the
abuse and slander of courts and the judges thereof, on the other. Intemperate Integrated Bar of the Philippines, the Court of Appeals, and the Executive
and unfair criticism is a gross violation of the duty of respect to courts." 23 In Judges of the Regional Trial Courts and other Courts of the country, for their
this regard, it is precisely provided under Canon 11 of the Code of information and guidance.
Professional Responsibility that: SO ORDERED.
CANON 11-A LAWYER SHALL OBSERVE AND MAINTAIN THE Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Gancayco, Padilla, Bidin,
RESPECT DUE TO THE COURTS AND TO JUDICIAL OFFICERS Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.
AND SHOULD INSIST ON SIMILAR CONDUCT BY OTHERS. Fernan, C.J., Paras and Feliciano, JJ., is on leave.
xxx xxx xxx
RULE 11.03 A lawyer shall abstain from scandalous,
offensive or menancing language or behavior before the
courts.
RULE 11.04 A lawyer should not attribute to a judge
motives not supported by the record or have materiality to
the case.
xxx xxx xxx
We further note that in filing the "complaint" against the justices of the
Court's Second Division, even the most basic tenet of our government system
the separation of powers between the judiciary, the executive, and the
legislative branches has been lost on Atty. Castellano. We therefore take
this occasion to once again remind all and sundry that "the Supreme Court is
supreme the third great department of government entrusted exclusively
with the judicial power to adjudicate with finality all justiciable disputes,
public and private. No other department or agency may pass upon its
judgments or declare them 'unjust.'" 24 Consequently, and owing to the
foregoing, not even the President of the Philippines as Chief Executive may
pass judgment on any of the Court's acts.
Finally, Atty. Castellano's assertion that the complaint "was a constructive
criticism intended to correct in good faith the erroneous and very strict
practices of the Justices, concerned as Respondents (sic)" is but a last minute
effort to sanitize his clearly unfounded and irresponsible accusation. The
arrogance displayed by counsel in insisting that the Court has no jurisdiction
to question his act of having complained before the Office of the President,
and in claiming that a contempt order is used as a weapon by judges and
justices against practicing lawyers, however, reveals all too plainly that he
was not honestly motivated in his criticism. Rather, Atty. Castellano's
complaint is a vilification of the honor and integrity of the Justices of the
Second Division of the Court and an impeachment of their capacity to render
justice according to law.
WHEREFORE, Atty. Marceliano L. Castellano is found guilty of CONTEMPT OF
COURT and IMPROPER CONDUCT as a member of the Bar and an officer of
the Court, and is hereby ordered to PAY within fifteen (15) days from and
after the finality of this Resolution a fine of One Thousand (P1,000.00) Pesos,
or SUFFER ten (10) days imprisonment in the municipal jail of Calatrava,
Negros Occidental in case he fails to pay the fine seasonably, and SUSPENDED
Ethics-Chapter III 40