EN BANC

[G.R. No. L-36800. October 21, 1974.]

JORGE MONTECILLO and QUIRICO DEL

MAR, petitioners, vs. FRANCISCO M. GICA, MAGNO
S. GATMAITAN, JOSE N. LEUTERIO, and RAMON G.
GAVIOLA, Justices of the Court of
Appeals,  respondents. In Re Quirico del Mar, For
Disciplinary action as member of the Philippine
Bar, respondent.

DECISION

ESGUERRA, J  : p

Petitioner Atty. Quirico del Mar of Cebu City in G. R. No. L-

36800, and as respondent in contempt proceedings both in the
Court of Appeals and in this Court, virtually focused the
limelight on himself and relegated to insignificance the
limelight on himself and relegated to insignificance the
principal issue raised in the petition for certiorari to review the
entitled "Francisco M. Gica vs. Hon. Santiago O. Tañada, et al"
which was denied due course by this Court's resolution dated
May 14, 1973, for lack of merit.
Although the petition for certiorari has been denied, it
becomes imperatively necessary to elucidate upon the
antecedents of this case even if Our only justification in so
doing is to seek a reason or motive for the acts of contempt
perpetrated by respondent Quirico del Mar that might serve to
lighten the enormity of his wrongdoing as a member of the Bar.
As a result of an alleged slander committed by
Jorge Montecillo on Francisco M. Gica (the former allegedly
calling the latter "stupid" or a "fool"), Mr. Gica filed a criminal
complaint for oral defamation against Montecillo (Criminal
Case No. R-28782 in Branch VII of the Cebu City Court) and a
case for damages arising from the same incident (Civil Case
No. R-13075 in Branch VI of the Cebu City
Court). Montecillo was acquitted in Criminal Case No. R-
28782, and in Civil Case No. R-13075, the Cebu City Court found
that Montecillo did not call Gica "stupid". Finding the
counter-claim of Montecillo meritorious, the City Court
rendered judgment against Gica for him to
pay Montecillo five hundred pesos as moral damages, two
hundred pesos as compensatory damages and three hundred
pesos as attorney's fees, plus costs.
Francisco Gica appealed from the decision of the City
Court of Cebu in Civil Case No. R-13075 to the Court of First
Instance of Cebu presided by Hon. Santiago O. Tañada, but the
Court of First Instance upheld the decision of the City Court.
The case was then elevated to the Court of Appeals by petition
for review by petitioner Francisco M. Gica and it was
docketed therein as CA-G. R. No. 46504-R.
The Fourth Division of the Court of Appeals in a decision
penned by the Hon. Magno S. Gatmaitan and concurred in by
Associate Justices Jose N. Leuterio and Ramon G. Gaviola, Jr.
(promulgated on Sept. 27, 1972), reversed the decision of the
Court of First Instance of Cebu; ruled in favor of
petitioner Gica on the ground that the preponderance of
evidence favored petitioner Francisco M. Gica on the principle
that positive must prevail over the negative evidence, and that
"some words must have come from Montecillo's lips that were
insulting to Gica". The appellate court concluded that its
decision is a vindication of Gica and, instead, awarded him
five hundred pesos as damages.
It is from this point that trouble began for respondent Atty.
Quirico del Mar when, as counsel for Montecillo, he moved for
a reconsideration of the Appellate Court's decision with a
veiled threat by mentioning the provisions of the Revised Penal
Code on "Knowingly rendering unjust judgment" and "judgment
rendered through negligence", and the innuendo that the Court
of Appeals allowed itself to be deceived. When the Appellate
Court denied the motion for reconsideration in its Resolution of
October 24, 1972, it observed that the terminology of the
motion insinuated that the Appellate Court rendered an unjust
judgment, that it abetted a falsification and it permitted itself
to be deceived. It admonished Atty. del Mar to remember that
threats and abusive language cannot compel any court of
justice to grant reconsideration. Respondent del Mar persisted
and in his second motion for reconsideration, filed without
leave of court, made another threat by stating that "with
almost all penal violations placed under the jurisdiction of the
President of the Philippines, particularly Articles 171, 204 and
205 of the Revised Penal Code, as Commander in Chief of the
AFP, by virtue of the proclamation of martial law, the next
appeal that will be interposed, will be to His Excellency, the
President of the Philippines."
The Appellate Court in its resolution of Nov. 27, 1972,
noticed that notwithstanding its admonition in its resolution of
Oct. 24, 1972, for Atty. del Mar to refrain from abusive language
and threats, he reiterated his threats, and that the Appellate
Court, impelled to assert its authority, ordered respondent del
Mar to explain within 10 days (and to appear on January 10,
1973) why he should not be punished for contempt of court.
On December 5, 1972, respondent del Mar made a written
explanation wherein he said that the Appellate Court could not
be threatened and he was not making any threat but only
informing the Appellate Court of the course of action he would
follow. On the same date, respondent sent a letter to the
Justices of the 4th Division of the Court of Appeals informing
them that he sent a letter to the President of the Philippines,
furnishing them a copy thereof, and requesting the Justices to
take into consideration the contents of said letter during the
hearing of the case scheduled for January 10, 1973. Not
content with that move, on December 8, 1972, respondent sent
another letter to the same Justices of the Court of Appeals
wherein he reminded them of a civil case he instituted against
Justices of the Supreme Court for damages in the amount of
P200,000 for a decision rendered not in accordance with law
and justice, stating that he would not like to do it again but
would do so if provoked. We pause here to observe that
respondent del Mar seems to be of that frame of mind whereby
he considers as in accordance with law and justice whatever
he believes to be right in his own opinion and as contrary to
law and justice whatever does not accord with his views. In
other words, he would like to assume the role of this Court,
personally and individually, in the interpretation and
construction of the laws, evaluation of evidence and
determination of what is in accordance with law and justice.
The documented incidents as narrated in the Appellate
Court's Resolution of March 5, 1973, cannot more eloquently
depict the very manifest and repeated threats of respondent
del Mar to bludgeon the Justices of the Fourth Division into
reconsidering its decision which happened to be adverse to
respondent's client. Respondent del Mar, instead of presenting
lucid and forceful arguments on the merits of his plea for a
reconsideration to convince the Justices of the Fourth Division
of the alleged error in their decision, resorted to innuendos and
veiled threats, even casting downright aspersion on the
Justices concerned by insinuating that for their decision they
could be criminally and civilly liable for knowingly rendering
unjust judgment, or doing it through ignorance.
We quote with approval this portion of the Appellate
Court's Resolution (March 5, 1973):
"A just man can never be threatened, p. 145, rollo, is not at
all true; any man, just or unjust, can be threatened; if he is
unjust, he will succumb, if he is just, he will not, but the
offense is committed, whether the threats do or do not
succeed. As to his (respondent del Mar's) reference to the
New Society, p. 150, in his letter to his Excellency,
complaining against those justices, let it be said that
precisely it was under the Former Society that there had
been so much disrespect for the constituted authorities,
 there was abuse, worse than abuse, there was arrogant
abuse, of the so-called civil liberties, against the
authorities, including the courts, not excluding even the
President; it is this anarchy that is the program to cure in
the New."

This Resolution of the Appellate Court of March 5, 1973,

fittingly concluded that "counsel del Mar is found guilty of
contempt and condemned to pay a fine of P200.00 and ordered
suspended from the practice of law and pursuant to Sec. 9 of
Rule 139, let certified copies of these papers be elevated to the
Honorable Supreme Court". We upheld the Court of Appeals and
gave full force and effect to this order of suspension from the
practice of law when in Our resolution dated Nov. 19, 1973, the
Judicial Consultant of this Court was directed to circularize all
courts about the order of the Court of Appeals suspending Atty.
Quirico del Mar from the practice of law.
Not satisfied with the wrong that he had already done
against Associate Justices Magno S. Gatmaitan, Jose N.
Leuterio and Ramon Gaviola, Jr., respondent del Mar sued the
three Justices for damages in Civil Case No. R-13277 of the
Court of First Instance of Cebu, trying to hold them liable for
their decision in CA-G. R. No. 46504-R; that the case for
damages (R-13277) was terminated by compromise agreement
after Mr. del Mar himself moved for the dismissal of his
complaint, apologized to the Court of Appeals and the Justices
concerned, and agreed to pay nominal moral damages in favor
of the defendants-justices. This is the undeniable indication
that respondent del Mar did not only threaten the three
Justices of the Appellate Court but he actually carried out his
threat, although he did not succeed in making them change
their minds in the case they decided in accordance with the
exercise of their judicial discretion emanating from pure
conviction.
To add insult to injury, respondent del Mar had the
temerity to file his motion on October 10, 1973, before Us,
asking that his suspension from the practice of law imposed by
the Court of Appeals be ignored because of the amicable
settlement reached in Civil Case No. R-13277 of the Court of
First Instance of Cebu which was the action for damages filed
against the three Justices of the Appellate Court.
Respondent del Mar's ire at the Appellate Court, fanned by
the wind of frustration, turned against Us when We denied on
May 14, 1973, his petition for review on certiorari of the
decision of the Appellate Court, G. R. No. L-36800, for on May
25, 1973, he filed his motion for reconsideration and wrote a
letter addressed to the Clerk of this Court requesting the
names of the Justices of this Court who supported the
resolution denying his petition, together with the names of the
Justices favoring his motion for reconsideration. This motion
for reconsideration We denied for lack of merit in Our
resolution dated June 15, 1973. He, then, filed a manifestation
dated July 1, 1973, before Us, stating brazenly, among other
things, "I can at this time reveal to you that, had your Clerk of
Court furnished me with certified true copies of the last two
Resolutions of the Supreme Court confirming the decision of
the Court of Appeals in the case entitled Francisco M. Gica vs.
Jorge Montecillo, I would have filed against the Justices
supporting the same, civil and criminal suits as I did to the
Justices of the Court of Appeals who, rewarding the abhorent
falsification committed by Mr.  Gica, reversed for him the
decisions of the City Court and the Court of First Instance of
Cebu, not with a view to obtaining a favorable
judgment therein but for the purpose of exposing to the
people the corroding evils extant in our Government,  so that
they may well know them and work for their extermination"
(Emphasis supplied. In one breath and in a language certainly
not complimentary to the Appellate Court and to Us,
respondent del Mar again made his veiled threat of retribution
aimed at the Appellate Court and at Us for Our judicial acts in
CA-G. R. No. 46504-R and G. R. No. L-36800.
Our immediate reaction to this manifestation, dictated by
the impulse of placing on a pedestal beyond suspicion the
integrity and honor of this Court and that of any of our other
courts of justice, was to require by Resolution of July 16, 1973,
respondent del Mar to show cause why disciplinary action
should not be taken against him for the contemptuous
statements contained in his manifestation.
At this juncture, We pause to reexamine the act of the
Appellate Court in CA-G. R. No. 46504-R and our own in G. R.
No. L-36800 to determine what error we might have committed
to generate such a vengeful wrath of respondent del Mar which
drove him to make his contemptuous statements.
The crucial issue in the case of oral defamation filed by
Francisco M. Gica against Jorge Montecillo is as to what
was the statement really uttered by Montecillo on the
occasion in question — "binuang man gud na" (That act is
senseless or done without thinking) or "buang man gud na siya"
(He is foolish or stupid). If the statement uttered was the
former, Montecillo should be exonerated; if the latter, he
would be liable. The Appellate Court on evaluating the
evidence ruled that the preponderance thereof favored Gica,
"on the principle that the positive evidence must prevail over
the negative" and, therefore, what was really uttered
by Montecillo on that occasion was "buang man gud na siya"
(He is foolish or stupid), thus making him liable for oral
defamation. When We denied in G. R. No. L-36800 the petition
for review on certiorari of the Appellate Court's decision in CA-
G. R. No. 46504-R, We did so because We could find no reason
for disturbing the Appellate Court's finding and conclusion on
the aforementioned lone question of fact which would warrant
overturning its decision.
On July 13, 1973, Our resolution of May 14, 1973, denying
the petition for review on certiorari of the decision of the
Appellate Court in CA-G. R. No. 46504-R, became final and
executory and the Court of Appeals was so informed.
To Our resolution of July 16, 1973, requiring respondent
del Mar to show cause why he should not be disciplined for his
statements contained in his manifestation of July 1, 1973, he
submitted an explanation dated August 1, 1973, wherein he
stated that ". . . , he is attaching hereto the criminal case he
filed with the President of the Philippines (copy marked as
Annex "A") and the civil case he instituted in the Court of First
Instance of Cebu (copy marked as Annex "B") against Justices
Magno S. Gatmaitan, Jose N. Leuterio and Ramon G. Gaviola,
Jr., which embody the corroding evils he complained of as
extant in the Government needing correction. He would hove
followed suit were it not for the fact that he is firmly convinced
that human efforts in this direction will be fruitless.  As
manifested, he, therefore, decided to retire from a life of
militancy to a life of seclusion, leaving to God the filling-up of
human deficiencies" (Emphasis supplied)
This so-called explanation is more, in its tenor, of a
defiant justification of his contemptuous statements contained
in the manifestation of July 1, 1973. It contents reveal a
continued veiled threat against the Justices of this Court who
voted to deny del Mar's petition for review on certiorari of the
decision of the Court of Appeals in CA-G. R. No. 46504-R.
Our resolution of September 4, 1913, required respondent
Atty. Quirico del Mar to appear personally at the hearing of his
explanation on November 5, 1973. On September 26, 1973,
respondent filed an additional explanation with this Court,
wherein he stated, among other things: "Graft, corruption and
injustice are rampant in and outside of the Government. It is
this state of things that convinced me that all human efforts to
correct and/or reform the said evils will be fruitless and, as
stated in my manifestation to you, I have already decided to
retire from a life of militancy to a life of seclusion, leaving to
God the filling-up of human deficiencies."
Again We noticed that the tenor of this additional
explanation is a toned-down justification (as compared to his
explanation of August 1, 1973) of his previous contemptuous
statements without even a hint of apology or regret.
Respondent is utilizing what exists in his mind as state of graft,
corruption and injustice allegedly rampant in and outside of the
government as justification for his contemptuous statements.
In other words, he already assumed by his own contemptuous
utterances that because there is an alleged existence of
rampant corruption, graft, and injustice in and out of the
government, We, by Our act in G. R. No. L-36800, are among the
corrupt, the grafters and those allegedly committing injustice.
We are at a complete loss to follow respondent del Mar's logic
and We certainly should, with understanding condescension,
commiserate in the pitiable state of mind of a brother in the
legal profession who seems to have his reasoning and sense of
proportion blurred or warped by an all-consuming obsession
emanating from a one-track mind that only his views are
absolutely correct and those of others are all wrong.
When this Court in the resolution dated November 19,
1973, directed the Judicial Consultant to circularize to all
courts concerning the order of the Court of Appeals suspending
Atty. Quirico del Mar from the practice of law, respondent del
Mar filed a motion for reconsideration on December 12, 1973,
requesting Us to reconsider said directive. In Our resolution
dated December 17, 1973, respondent del Mar, after he had
been interpellated by the Court, was given a period of five days
to submit a memorandum in support of his explanation. In view
of respondent's manifestation that there was no need for
further investigation of the facts involved, in accordance with
Section 29 of Rule 138, We resolved that the matter be deemed
submitted for decision.
In the memorandum entitled "Explanation" dated
December 20, 1973, respondent del Mar stated that he suffered
repeated strokes of high blood pressure which rendered him
dizzy and unstable mentally and physically; that his sight is
blurred and his reasoning is faulty; he easily forgets things and
cannot readily correlate them; that for any and all mistakes he
might have committed he asked for forgiveness; he reiterated
that "blunders" were committed by the Court of Appeals in its
decision and that the Justices thereof knowingly rendered the
same in violation of Article 204 of the Penal Code; he persisted
in his view that the Court of Appeals committed an error in its
decision; justified his act of invoking Article 204 of the Penal
Code in trying to make the Appellate Justices liable; that he
was high in his academic and scholastic standing during his
school days; that "with all the confusion prevailing nowadays,
the undersigned has decided for reasons of sickness and old
age to retire from the practice of law. He hopes and expects
that, with the approval thereof by the Supreme Court, he could
have himself released from the obligation he has contracted
with his clients as regards all his pending cases."
It is Our observation that the tenor of this explanation
although pleading mental and physical ailment as a mitigation
of the contemptuous acts, is still that of arrogant justification
for respondent's previous statements. We quote:
"The undersigned was asked if he had not filed against the
Justices of the Supreme Court a case for damages against
them. He answered in the affirmative, but the case was
dismissed by Judge Villasor, of the Court of First Instance
of Cebu, because of an American ruling that a justice of the
Supreme Court of the Philippines cannot he civilly held
liable. The ruling cited was rendered during the American
regime in the Philippines which was still subject to the
jurisdiction of the American laws. But the Philippines is
now independent and Article 204 of the Penal Code still
remains incorporated therein for observance and
fulfillment. Up to now, there is not yet any definite ruling of
the Supreme Court thereon".

While still persistently justifying his contemptuous

statements and at the same time pleading that his physical and
mental ailment be considered so that We may forgive
respondent del Mar, he shrewdly stated at the end of his
explanation that he has decided for reasons of sickness and
old age to retire from the practice of law, in practical
anticipation of whatever penalty We may decide to impose on
him and thus making it appear that he has voluntarily done so
with honor and in complete evasion of whatever this Court may
decide to do in this case.
 With full realization that a practicing lawyer and officer of
the court facing contempt proceedings cannot just be allowed
to voluntarily retire from the practice of law, an act which
would negate the inherent power of the court to punish him for
contempt in defense of its integrity and honor, We resolved, by
resolution of January 10, 1974, to deny said prayer of Atty. del
Mar without prejudice to his making arrangement directly with
his clients.
To aged brethren of the bar it may appear belated to
remind them that second only to the duty of maintaining
allegiance to the Republic of the Philippines and to support the
Constitution and obey the laws of the Philippines, is the duty of
all attorneys to observe and maintain the respect due to the
courts of justice and judicial officers (Sec. 20 (b) Rule 138,
Rules of Court). But We do remind them of said duty to
emphasize to their younger brethren its paramount importance.
A lawyer must always remember that he is an officer of the
court exercising a high privilege and serving in the noble
mission of administering justice.
It is the duty of the lawyer to maintain towards the courts
a respectful attitude (People vs. Carillo, 77 Phil. 572). 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. (In re
Sotto 82 Phil. 595).
As We stated before:
"We concede that a lawyer may think highly of his
intellectual endowment. That is his privilege. And, he may
suffer frustration at what he feels is others' lack of it. This
is his misfortune. Some such frame of mind, however,
should not be allowed to harden into a belief that he may
attack a court's decision in words calculated to jettison
the time-honored aphorism that courts are the temples of
right. He should give due allowance to the fact that judges
 are but men; and men are encompassed by error, fettered
by fallibility.
. . . To be sure, lawyers may come up with various
methods, perhaps much more effective, in calling the
Court's attention to the issues involved. The language
vehicle does not run short of expressions, emphatic but
respectful, convincing but not derogatory, illuminating but
not offensive" (Rheem of the Philippines vs. Ferrer G. R.
No. L-22979, June 26, 1967; 20 SCRA 441, 444-445)

Criminal contempt has been defined as a conduct that is

directed against the dignity and authority of the court or a
judge acting judicially. It is an act obstructing the
administration of justice which tends to bring the court into
disrepute or disrespect (17 C.J.S. 7)
We have held that statements contained in a motion to
disqualify a judge, imputing to the latter conspiracy or
connivance with the prosecutors or concocting a plan with a
view to securing the conviction of the accused, and implicating
said judge in a supposed attempt to extort money from the
accused on a promise or assurance of the latter's acquittal, all
without basis, were highly derogatory and serve nothing but to
discredit the judge presiding the court in an attempt to secure
his disqualification. Statements of that nature have no place in
a court pleading and if uttered by a member of the bar,
constitute a serious disrespect. We said:
"As an officer of the court, it is his sworn and moral duty to
help build and not destroy unnecessarily the high esteem
and regard towards the court so essential to the proper
administration of justice" (Emphasis supplied). (People vs.
Carillo, 43 O.G. No. 12, p. 5021; De Joya et al vs. C.F.I. of
Rizal and Rilloraza 52 O. G. 6150)

As already stated, the decision of the Court of Appeals in

CA-G. R. No. 46504-R was based on its evaluation of the
evidence on only one specific issue. We in turn denied in G. R.
No. L-36800 the petition for review on certiorari of the decision
because We found no reason for disturbing the appellate
court's finding and conclusion. In both instances, both the
Court of Appeals and this Court exercised judicial discretion in
a case under their respective jurisdiction. The intemperate and
imprudent act of respondent del Mar in resorting to veiled
threats to make both Courts reconsider their respective stand
in the decision and the resolution that spelled disaster for his
client cannot be anything but pure contumely for said tribunals.
It is manifest that respondent del Mar has scant respect
for the two highest Courts of the land when on the flimsy
ground of alleged error in deciding a case, he proceeded to
challenge the integrity of both Courts by claiming that they
knowingly rendered unjust judgment. In short, his allegation is
that they acted with intent and malice, if not with gross
ignorance of the law, in disposing of the case of his client.
We note with wonder and amazement the brazen
effrontery of respondent in assuming that his personal
knowledge of the law and his concept of justice are superior to
that of both the Supreme Court and the Court of Appeals. His
pretense cannot but tend to erode the people's faith in the
integrity of the courts of justice and in the administration of
justice. He repeatedly invoked his supposed quest for law and
justice as justification for his contemptuous statements
without realizing that, in seeking both abstract elusive terms,
he is merely pursuing his own personal concept of law and
justice. He seems not to comprehend that what to him may be
lawful or just may not be so in the minds of others. He could
not accept that what to him may appear to be right or correct
may be wrong or erroneous from the viewpoint of another. We
understand that respondent's mind delves into the absolute
without considering the universal law of change. It is with deep
concern that We view such a state of mind of a practicing
lawyer since what We expect as a paramount qualification for
those in the practice of law is broadmindedness and tolerance,
coupled with keen perception and a sound sense of proportion
in evaluating events and circumstances.
 For a lawyer in the twilight of his life, with supposed
physical and mental ailments at that, who dares to challenge
the integrity and honor of both the Supreme Court and Court of
Appeals, We have nothing but commiseration and sympathy for
his choosing to close the book of his long years of law practice
not by voluntary retirement with honor but in disciplinary
action with ignominy and dishonor. To those who are in the
practice of law and those who in the future will choose to enter
this profession, We wish to point to this case as a reminder for
them to imprint in their hearts and minds that an attorney owes
it to himself to respect the courts of justice and its officers as
a fealty for the stability of our democratic institutions.
WHEREFORE, the resolution of the Court of Appeals in CA-
G. R. No. 46504-R, dated March 5, 1973, suspending Atty.
Quirico del Mar from the practice of law, as implemented by
Our resolution of November 19, 1973, is hereby affirmed.
Respondent Atty. Quirico del Mar, for his misconduct
towards the Supreme Court, shall be, as he is hereby,
suspended from the practice of law until further orders of this
Court, such suspension to take effect immediately. (In re
Almacen, No. L-27654, Feb. 18, 1970, 31 SCRA, p. 562.).
The Judicial Consultant of this Court is directed to
circularize all courts and the Integrated Bar of the Philippines
regarding the indefinite suspension of Atty. Quirico del Mar
from the practice of law.
SO ORDERED.
 (Montecillo v. Gica, G.R. No. L-36800, [October 21, 1974], 158
|||

PHIL 443-456)
 EN BANC

[A.C. No. L-363. July 31, 1962.]

IN RE: DISBARMENT PROCEEDINGS AGAINST ATTY.

DIOSDADO Q. GUTIERREZ, respondent.

Victorino A. Savellano  for complainant.

Nestor M. Andrada  for respondent.

SYLLABUS

1. ATTORNEYS-AT-LAW; DISBARMENT; CONVICTION OF

CRIME INVOLVING MORAL TURPITUDE. — Under section 5,
Rule 127 of the Rules of Court, a member of the bar may be
removed or suspended from his office as attorney by reason of
his conviction of a crime involving moral turpitude. Murder is
such a crime.
2. ID.; ID.; ID.; "MORAL TURPITUDE" CONSTRUED. — The
term "moral turpitude" includes everything which is done
contrary to justice, honesty, modesty or good
morals. In re Basa, 41 Phil. 275. As used in disbarment
status, it means an act of baseness, vileness, or
depravity in the private and social duties which a man owes
to his fellow men or to society in general, contrary to the
accepted rule of right and duty between man and man. State ex
rel. Conklin vs. Buckingham, 84 P. 2nd 49; 5 Am. Jur. Sec. 279,
pp. 428-429.
3. ID.; ID.; ID.; EFFECT OF PARDON. — The rule that
pardon operates to wipe out the conviction and is a bar to any
proceeding for the disbarment of the attorney after the pardon
has been granted applies only where the pardon is absolute,
but not where, as in this case, the pardon granted is
conditional and merely remitted the unexecuted portion of the
 penalty. In such a case, the attorney must be judged upon the
fact of his conviction for the crime he has committed.
4. ID.; REQUISITES FOR THE PRACTICE OF LAW. — The
practice of law is a privilege accorded only to those who
measure up to certain rigid standards of mental and moral
fitness. For the admission of a candidate to the bar the Rules of
Court not only prescribe a test of academic preparation but
require satisfactory testimonials of good moral character.
These standards are neither dispensed with nor lowered after
admission; the lawyer must continue to adhere to them or else
incur the risk of suspension or removal.

DECISION

MAKALINTAL, J  : p

Respondent Diosdado Q. Gutierrez is a member of the

Philippine Bar, admitted to it on October 5, 1945. In criminal
case No. R-793 of the Court of First Instance of Oriental
Mindoro he was convicted of the murder of Filemon Samaco,
former municipal mayor of Calapan, and together with his co-
conspirators was sentenced to the penalty of death. Upon
review by this Court the judgment of conviction was affirmed
on June 30, 1956 (G. R. No. L-7101), but the penalty was
changed to reclusión perpetua. After serving a portion of the
sentence respondent was granted a conditional pardon by the
President on August 19, 1958. The unexecuted portion of the
prison term was remitted "on condition that he shall not again
violate any of the penal laws of the Philippines."
On October 9, 1958 the widow of the deceased Filemon
Samaco, victim in the murder case, filed a verified complaint
before this Court praying that respondent be removed from the
roll of lawyers pursuant to Rule 127, section 5. Respondent
presented his answer in due time, admitting the facts alleged
by complainant regarding his previous conviction but pleading
the conditional pardon in defense, on the authority of the
decision of this Court in the case of In re Lontok, 43 Phil.
293.
Under section 5 of Rule 127 a member of the bar may be
removed or suspended from his office as attorney by the
Supreme Court by reason of his conviction of a crime involving
moral turpitude. Murder is, without doubt, such a crime. The
term "moral turpitude" includes everything which is done
contrary to justice, honesty, modesty or good
morals. In re Carlos S. Basa, 41 Phil. 275. As
used in disbarment statutes, it means an act of baseness,
vileness, or depravity in the private and social duties which a
man owes to his fellowmen or to society in general, contrary
to the accepted rule of right and duty between man and man.
State ex rel. Conklin vs. Buckingham, 84 P. 2nd 49; 5 Am. Jur.
Sec. 279, pp. 428-429.
The only question to be resolved is whether or not the
conditional pardon extended to respondent places him beyond
the scope of the rule on disbarment aforecited. Reliance is
placed by him squarely on the Lontok case. The respondent
therein was convicted of bigamy and thereafter pardoned by
the Governor-General. In a subsequent proceeding for his
disbarment on the ground of such conviction, this Court
decided in his favor and held: "When proceedings to strike on
attorney's name from the rolls are founded on, and depend
alone, on a statute making the fact of a conviction for a felony
ground for disbarment, it has been held that a pardon operates
to wipe out the conviction and is a bar to any proceeding for
the disbarment of the attorney after the pardon has been
granted."
It is our view that the ruling does not govern the question
now before us. In making it the Court proceeded on the
assumption that the pardon granted to respondent Lontok was
absolute. This is implicit in the ratio decidendi of the case,
particularly in the citations to support it,
namely, In re Emmons, 29 Cal. App. 121; Scott vs. State 6
Tex. Civ. App. 343; and Ex parte Garland, 4 Wall. 380.
Thus in Scott vs. State the court said:
"We are of the opinion that after he received an
unconditional pardon the record of the felony conviction
could no longer be used as a basis for the proceeding
provided for in article 226. This record, when
offered in evidence, was met with an unconditional
pardon, and could not therefore, properly be said to afford
"proof of a conviction of any felony." Having been thus
cancelled, all its force as a felony conviction was taken
away. A pardon falling short of this would not be pardon,
according to the judicial construction which that act of
executive grace was received. Ex parte Garland, 4 Wall,
344; Knote vs. U.S. 95 U.S. 149, and cases there cited;
Young vs. Young, 61 Tex. 191."

And the portion of the decision in Ex parte Garland

quoted with approval in the Lontok case is as follows:
"'A pardon reaches both the punishment prescribed
for the offense and the guilt of the offender; and when the
pardon is full, it releases the punishment and blots out of
existence the guilt, so that in the eyes of the law the
offender is as innocent as if he had never committed the
offense. If granted before conviction, it prevents any of the
penalties and disabilities, consequent upon conviction,
from attaching; if granted after conviction, it removes the
penalties and disabilities, and restores him to all his civil
rights; it makes him, as it were, a new man, and gives him
a new credit and capacity.' "

The pardon granted to respondent here is not absolute but

conditional, and merely remitted the unexecuted portion of his
term. It does not reach the offense itself, unlike that in Ex
parte Garland, which was "a full pardon and amnesty for all
offenses by him committed in connection with the rebellion
(civil war) against the government of the United States."
The foregoing considerations render In re Lontok
inapplicable here. Respondent Gutierrez must be judged upon
the fact of his conviction for murder without regard to the
 pardon he invokes in defense. The crime was qualified by
treachery and aggravated by its having been
committed in band, by taking advantage of his official position
(respondent being municipal mayor at the time) and with the
use of a motor vehicle. People vs. Diosdado Gutierrez, supra.
The degree of moral turpitude involved is such as to justify his
being purged from the profession.
The practice of law is a privilege accorded only to those
who measure up to certain rigid standards of mental and moral
fitness. For the admission of a candidate to the bar the Rules of
Court not only prescribe a test of academic preparation but
require satisfactory testimonials of good moral character.
These standards are neither dispensed with nor lowered after
admission; the lawyer must continue to adhere to them or else
incur the risk of suspension or removal. As stated in Ex parte
Wall, 107 U.S. 263, 27 Law ed., 552, 556; "Of all classes and
professions, the lawyer is most sacredly bound to uphold the
laws. He is their sworn servant; and for him, of all men in the
world, to repudiate and override the laws, to trample them
under foot and to ignore the very bands of society, argues
recreancy to his position and office and sets a pernicious
example to the insubordinate and dangerous elements of the
body politic."
WHEREFORE, pursuant to Rule 127, Section 5, and
considering the nature of the crime for which respondent
Diosdado Q. Gutierrez has been convicted, he is ordered
disbarred and his name stricken from the roll of lawyers.
Bengzon, C. J., Labrador, Concepcion, Barrera, Paredes,
Dizon and Regala, JJ., concur.
Padilla, J.,  took no part.
 
 (In re Gutierrez, A.C. No. L-363, [July 31, 1962], 115 PHIL 647-
|||

651)
 THIRD DIVISION

[G.R. No. 125766. October 19, 1998.]

FELICIDAD L. ORONCE and ROSITA L.

FLAMINIANO,  petitioners, vs.
HON. COURT  OF APPEALS and PRICILIANO B.
GONZALES DEVELOPMENT
CORPORATION, respondents.

SYLLABUS

1. REMEDIAL LAW; CIVIL PROCEDURE; JURISDICTION;

INFERIOR COURTS ARE CONDITIONALLY VESTED WITH
ADJUDICATORY POWER ON ISSUE OF TITLE OR OWNERSHIP IN
EJECTMENT CASES. — Inferior courts are now "conditionally
vested with adjudicatory power over the issue of title or
ownership raised by the parties in an ejectment suit." These
courts shall resolve the question of ownership raised as an
incident in an ejectment case where a determination thereof is
necessary for a proper and complete adjudication of the
issue of possession. cdasia

2. ID.; ID.; COMPLAINT; DOCUMENTS ATTACHED, THE DUE

EXECUTION AND GENUINENESS OF WHICH ARE NOT DENIED
UNDER OATH CONSIDERED AS PART THEREOF; CASE AT BAR. —
MTC Branch 41 apparently did not examine the terms of the
deed of sale. Instead, it erroneously held that the
issue of whether or not the document was in fact an equitable
mortgage "should not be properly raised in this case." Had it
examined the terms of the deed of sale, which, after all is
considered part of the allegations of the complaint having been
annexed thereto, that court would have found that, even on its
face, the document was actually one of equitable mortgage and
not of sale. The inferior court appears to have forgotten that all
documents attached to a complaint, the due execution and
genuineness of which are not denied under oath by the
defendant, must be considered as part of the complaint without
need of introducing evidence thereon. A closer look into the
allegations of the complaint would therefore show that
petitioners failed to make out a case for unlawful detainer. By the
allegations in the complaint, private respondent as a mortgagor
had the right to posses the property. A mortgage is a real right
constituted to secure an obligation upon real property or rights
therein to satisfy with the proceeds of the sale thereof such
obligation when the same becomes due and has not been paid or
fulfilled. The mortgagor generally retains possession of the
mortgaged property because by mortgaging a piece of property,
a debtor merely subjects it to a lien but ownership thereof is not
parted with. In case of the debtor's nonpayment of the debt
secured by the mortgage, the only right of the mortgagee is to
foreclose the mortgage and have the encumbered property sold to
satisfy the outstanding indebtedness. The mortgagor's default
does not operate to vest in the mortgagee the ownership of the
encumbered property, for any such effect is against public policy.
Even if the property is sold at a foreclosure sale, only upon
expiration of the redemption period, without the judgment debtor
having made use of his right of redemption, does
ownership of the land sold become consolidated in the
purchaser.
3. CIVIL LAW; CONTRACTS; EQUITABLE MORTGAGE;
CONSONANT WITH THE RULE THAT THE LAW FAVORS THE
LEAST TRANSMISSION OF PROPERTY RIGHTS. — Article
1604 of the Civil Code provides that the provisions of Article
1602 "shall also apply to a contract purporting to be an absolute
sale." The presence of even one of the circumstances in Article
1602 is sufficient basis to declare a contract as one of equitable
mortgage. The explicit provision of Article 1602 that
"any" of those circumstances would suffice to construe a
contract of sale to be one of equitable mortgage is in
consonance with the rule that the law favors the least
transmission of property rights.
4. ID.; ID.; CONTRACT OF SALE; NOT THE
INTENTION OF THE PARTIES IN CASE AT BAR. — The
denomination of the contract as a deed of sale is not binding as
to its nature. The decisive factor in evaluating such an agreement
is the intention of the parties, as shown, not necessarily by the
terminology used in the contract, but by their conduct, words,
actions and deeds prior to, during and immediately after
executing the agreement. Private respondent's possession over
the property was not denied by petitioners as in fact it was the
basis for their complaint for unlawful detainer.
5. REMEDIAL LAW; CIVIL PROCEDURE;
MULTIPLICITY OF SUITS; TOLERABLE UNDER THE
CIRCUMSTANCES IN THE CASE AT BAR. — Private respondent's
action for reformation of instrument was in fact a step in the
right direction. However, its failure to pursue that action did not
imply that private respondent had no other remedy under the law
as regards the issue of ownership over the Gilmore property.
There are other legal remedies that either party could have
availed of. Some of these remedies such as an action for
quieting of title, have been held to coexist with actions for
unlawful detainer. There is a policy against multiplicity of suits
but under the circumstances, only the institution of proper
proceedings could settle the controversy between the parties in a
definitive manner.
6. ID.; SPECIAL CIVIL ACTION; UNLAWFUL DETAINER;
ISSUE OF OWNERSHIP BECAME A PREJUDICIAL QUESTION IN
THE CASE AT BAR. — Although the Court of Appeals resolved
the appeal under the misconception that the action for
reformation of instrument was still viable, it correctly held that
the controversy between the parties was beyond the ordinary
issues in an ejectment case. Because of the opposing
claims of the parties as to the true agreement between them,
the issue of ownership was in a sense a prejudicial question that
needed determination before the ejectment case should have
been filed To reiterate, a decision reached in the ejectment case
in favor of any of the parties would have nonetheless spawned
litigation on the issue of ownership. At any rate, proceedings
would have been facilitated had the inferior courts made even a
provisional ruling on such issue.
7. ID.; ID.; CONTEMPT OF COURT;
CONDUCT OF PETITIONER IN DEFYING THE
WRIT OF PRELIMINARY INJUNCTION CONSTITUTED INDIRECT
CONTEMPT. — The conduct of petitioner Flaminiano in taking
possession over the property as alleged by private respondent
through Tadeo Gonzales is deplorably high-handed. On an
erroneous assumption that she had been legally vested with
ownership of the property, she took steps prior to the present
proceedings by illegally taking control and possession of the
same property in litigation. Her act of entering the property in
defiance of the writ of preliminary injunction issued by
the Court of Appeals constituted indirect contempt under
Section 3. Rule 71 of the Rules of Court that should be dealt
with accordingly.
8. LEGAL ETHICS; ATTORNEYS; PROHIBITED FROM
COUNSELLING OR ABETTING ACTIVITIES AIMED AT
DEFIANCE OF THE LAW OR AT LESSENING THE CONFIDENCE IN
THE LEGAL SYSTEM. — Be that as it may, what is disturbing to
the Court is the conduct of her husband, Eduardo Flaminiano, a
lawyer whose actuations as an officer of the court should be
beyond reproach. His contumacious acts of entering the Gilmore
property without the consent of its occupants and in
contravention of the existing writ of preliminary injunction
issued by the Court of Appeals and making utterances showing
disrespect for the law and this Court, are certainly
unbecoming of a member of the Philippine Bar. To be sure, he
asserted in his comment on the motion for contempt that
petitioners "peacefully" took over the property. Nonetheless, such
"peaceful" take-over cannot justify defiance of the
writ of preliminary injunction that he knew was still in force.
Notably, he did not comment on nor categorically deny that he
committed the contumacious acts alleged by private respondent.
Through his acts, Atty. Flaminiano has flouted his duties as a
member of the legal profession. Under the Code of Professional
Responsibility, he is prohibited from counseling or abetting
"activities aimed at defiance of the law or at lessening
confidence in the legal system."  HTcDEa

DECISION

ROMERO,  J  :p

The issue of whether or not a Metropolitan or Municipal

Trial Court may resolve the issue of ownership of the property
involved in an unlawful detainer case has been discussed by
this Court in a number of cases, the more recent of which is
that of Hilario v.  Court of  Appeals.  1  Jurisprudence on the
matter has in fact been reflected in the 1997 Rules of  Civil
Procedure under  Rule 70, to wit:  cda

"SEC. 16. Resolving defense  of  ownership. — When

the defendant raises the defense of ownership in his
pleadings and the question of possession cannot be
resolved without deciding the issue of ownership, the
issue of ownership shall be resolved only to determine the
issue of possession. (4a)"

These developments in the law notwithstanding, there remains

some misconceptions on the issue of jurisdiction of inferior
courts in ejectment cases where ownership is raised as a
defense that the Court deems proper to clarify in this petition.
Private respondent Priciliano B. Gonzales Development
Corporation was the registered owner of a parcel of land with
an area of 2,000 square meters. The land with improvements,
covered by Transfer Certificate of Title No. RT-54556 (383917),
is situated at No. 52 Gilmore Street, New Manila, Quezon City.
In June 1988, private respondent obtained a four million
peso — (P4,000,000.00) loan from the China Banking Corporation.
To guarantee payment of the loan, private respondent
mortgaged the Gilmore property and all its improvements to said
bank. Due to irregular payment of amortization, interests and
penalties on the loan accumulated through the years.
On April 13, 1992, private respondent, through its president,
Antonio B. Gonzales, signed and executed a Deed of Sale with
Assumption of Mortgage covering the Gilmore property and its
improvements, in favor of petitioners Rosita Flaminiano and
Felicidad L. Oronce. 2 The deed, which states that the sale was
in consideration of the sum of P5,400,000.00, 3 provided inter
alia  that
". . . the VENDOR (PBGDC) also guarantees the
right of the VENDEES (petitioners) to the
possession of the property subject of this contract
without the need of judicial action; and
possession of said premises shall be delivered to the
VENDEES by the VENDOR at the expiration of one (1) year
from the date of the signing and execution of this
Deed of Sale with Assumption of Mortgage."

On the other hand, petitioners bound themselves to pay private

respondent's indebtedness with China Banking Corporation.
In fulfillment of the terms and conditions embodied in the
Deed of Sale with Assumption of Mortgage, petitioners paid
private respondent's indebtedness with the bank. However,
private respondent reneged on its obligation to deliver
possession of the premises to petitioners upon the
expiration of the one-year period from April 13, 1992. Almost six
months later since the execution of the instrument or on
October 2, 1992, petitioners caused the registration of the
Deed of Sale with Assumption of Mortgage with the
Register of Deeds. Simultaneously, they obtained a new title,
TCT No. 67990, consistent with the fact that they are the new
owners of the property. 4 Sometime in July 1993, they paid the
real estate taxes on the property for which they were issued Tax
Declarations Nos. C-061-02815 and C-061-02816. 5
On November 12, 1993, petitioners sent private respondent a
demand letter asking it to vacate the premises. Said letter, just
like three other consecutive notices sent through the Quezon City
post office, was unclaimed. Hence, on April 11, 1994, petitioners
filed before the Metropolitan Trial Court of Quezon City, a
complaint for unlawful detainer against private respondent. The
complaint, docketed as Civil Case No. 8638 was raffled to Branch
41. Petitioners alleged that by virtue of the Deed of Sale with
Assumption of Mortgage, they acquired from private respondent
the Gilmore property and its improvements, for which reason they
were issued TCT No. 67990. However, they added, in
violation of the terms of that document, specifically Sec. 3 (c)
thereof, private respondent refused to surrender
possession of the premises. Consequently, they demanded that
private respondent vacate the premises through notices sent by
registered mail that were, however, returned to them unclaimed.
In its answer to the complaint, private respondent raised the
issue of ownership over the property. It impugned petitioners'
right to eject, alleging that petitioners had no cause of action
against it because it was merely a mortgagee of the property. It
argued that when the parties executed the Deed of Sale with
Assumption of Mortgage, its real intention was to forge an
equitable mortgage and not a sale. It pointed out three
circumstances indicative of an equitable mortgage, namely:
inadequacy of the purchase price, continued possession by
private respondent of the premises, and petitioners'
retention of a portion of the purchase price.
During the preliminary conference on the case, the parties
agreed to stipulate on the following: (a) the existence and due
execution of the Deed of Sale with Assumption of Mortgage,
and (b) the issue of whether or not the premises in litis are
being unlawfully detained by private respondent. 6
 On March 24, 1995, the MTC 7 decided the case in
favor of petitioners. It ruled that petitioners are the
owners of the Gilmore property on account of the following
pieces of evidence: (a) TCT No. 67990; (b) petitioners' payment
to the China Banking Corporation of P8,500,000.00, the
amount of the mortgage entered into between private
respondent and said bank; (c) payment of real estate taxes for
1993, and (d) Tax Declaration No. 02816 in petitioners' names.
The MTC further held that private respondent's possession of the
premises was merely tolerated by petitioners and because it
refused to vacate the premises despite demand to do so, then its
possession of the same premises had become illegal. Thus, the
MTC decreed as follows:
"WHEREFORE, premises considered, judgment is
hereby rendered ordering defendant and all persons
claiming rights under it to vacate the premises-in-litis
located at No. 52 Gilmore St., New Manila, Quezon City,
and to peacefully surrender possession thereof to the
plaintiffs; to pay plaintiffs the sum of P20,000.00 a month
as compensation for the unjust occupation of the same
from April 11, 1994 (the date of filing of this case) until
defendant fully vacates the said premises; to pay plaintiffs
the amount of P20,000.00 as and for attorney's fees plus
costs of suit.
Counterclaim is dismissed for lack of merit.
SO ORDERED." 8

On April 25, 1995, private respondent interposed an appeal

to the Regional Trial Court, Branch 219, of Quezon City that
docketed it as Civil Case No. Q-95-23697. Private respondent
stressed in its appeal that it was not unlawfully withholding
possession of the premises from petitioners because the latter's
basis for evicting it was the Deed of Sale with
Assumption of Mortgage that did not reflect the true
intention of the parties to enter into an equitable mortgage.
Clearly in pursuance of that allegation, private respondent filed a
motion questioning the jurisdiction of the RTC to entertain its
appeal. On the other hand, petitioners filed a motion for the
immediate execution of the appealed decision. The RTC granted
the motion on September 21, 1995 and the corresponding
writ of execution was issued on September 25, 1995. The
following day, the sheriff served upon private respondent the
writ of execution and a notice to vacate the premises within five
(5) days from receipt thereof.
Meanwhile, during the pendency of its appeal, private
respondent filed an action for reformation of instrument with the
RTC. It was docketed as Civil Case No. Q-95-24927 and assigned
to Branch 227.
In a resolution dated December 7, 1995, RTC Branch 219
asserted jurisdiction over the appeal. It ruled that the
issue of whether or not an action for reformation of a
deed of sale and an unlawful detainer case can proceed
independently of each other has been resolved by
this Court in Judith  v. Abragan. 9 In said case, this Court held
that the fact that defendants had previously filed a separate
action for the reformation of a deed of absolute sale into
one of pacto de retro sale or equitable mortgage in the
same Court of First Instance is not a valid reason to frustrate
the summary remedy of ejectment afforded by law to the
plaintiff.
On December 12, 1995, private respondent filed in
the Court of Appeals a petition for certiorari with prayer for a
temporary restraining order and writ of preliminary injunction
against petitioners and RTC Branch 219. It assailed the
September 21, 1995 order granting the issuance of a
writ of execution pending appeal, the writ of execution and the
notice to vacate served upon private respondent (CA-G.R. SP-
39227).
On December 13, 1995, RTC Branch 219 10 rendered the
decision affirming  in toto  that of the Metropolitan Trial Court.
Stating that in ejectment proceedings, the only issue for
resolution is who is entitled to physical or material
possession of the premises involved, RTC Branch 219 held that
". . . the plaintiffs (petitioners herein) are
vendees of the defendant (PBGDC) by virtue of a
deed of sale where the extent of its right to continue
holding possession was stipulated. In the agreement, the
existence and due execution of which the defendant had
admitted (Order, December 16, 1994, Rollo, p. 111), it was
clearly stated that the defendant shall deliver the
possession of the subject premises to the plaintiffs at the
expiration of one (1) year from the execution thereof,
April 12, 1992. The defendant failed to do so. From then on,
it could be said that the defendant has been unlawfully
withholding possession of the premises from the
plaintiffs.
In any case, this ruling on the matter of possession
de facto is without prejudice to the action for reformation.
This is because 'the judgment rendered in an action for
forcible entry or detainer shall be effective with respect to
the possession only and in no wise bind the title or effect
the ownership of the land or building nor shall it be held
conclusive of the facts therein found in a case between
the same parties upon a different cause of action not
involving possession' (Ang Ping v. Regional Trial Court,
154 SCRA 153; Section 7, Rule 70, Rules of Court)." 11

On that same date, December 13, 1995,

the Court of Appeals issued a temporary restraining order
enjoining RTC Branch 219 from enforcing the writ of execution
and the notice to vacate the premises and on January 15, 1996,
the same court granted private respondent's application for a
writ of preliminary injunction enjoining the
implementation of both the writ of execution pending appeal
and the decision of RTC Branch 219.
Around six months later or on July 2, 1996, RTC Branch
227 12 issued an order declaring private respondent non-suited
for failure to appear at the pre-trial and, therefore, dismissing the
action for reformation of instrument in Civil Case No. Q-95-
24927. Private respondent, not having sought
reconsideration of said order, the same court issued a
resolution on August 15, 1996 directing the entry of judgment in
the case. 13 The Clerk of Court accordingly issued the final
entry of judgment thereon. 14
In the meantime, on July 24, 1996,
the Court of Appeals rendered the herein questioned
Decision. 15 It set aside the December 13, 1995 decision of RTC
Branch 219 and declared as null and void for want of jurisdiction,
the March 24, 1995 decision of the Metropolitan
Trial Court of Quezon City, Branch 41. It made permanent the
writ of preliminary injunction enjoining petitioners from
implementing the decision of RTC Branch 219, the
writ of execution and the notice to vacate. In so holding,
the Court of Appeals said:
"It is quite evident that, upon the pleadings, the
dispute between the parties extended beyond the ordinary
issues in ejectment cases. The resolution of the dispute
hinged on the question of ownership and for that reason
was not cognizable by the MTC. (See: General Insurance
and Surety Corporation v. Castelo, 13 SCRA 652 [1965])
Respondent judge was not unaware of the
pendency of the action for reformation. However, despite
such knowledge, he proceeded to discuss the
merits of the appeal and rendered judgment in
favor of respondents on the basis of the deed of sale
with assumption of mortgage which was precisely the
subject of the action for reformation pending before
another branch of the court. Prudence dictated that
respondent judge should have refused to be drawn into a
discussion as to the merits of the respective
contentions of the parties and deferred to the
action of the court before whom the issue was directly
raised for resolution."

On whether or not private respondent was in estoppel from

questioning the jurisdiction of the MTC since it voluntarily
submitted thereto the question of the validity of its title to the
property, the Court of Appeals said:
"This is not so. As earlier pointed out, petitioner
(private respondent here) had, in its answer to the
complaint for unlawful detainer, promptly raised the
issue of jurisdiction by alleging that what was entered
into by the parties was just an equitable mortgage and not
a sale. Assuming the truth of this allegation, it is fairly
evident that respondents would not have had a
cause of action for ejectment. In other words, petitioner,
since the start of the case, presented a serious challenge
to the MTC's jurisdiction but, unfortunately,
the court ignored such challenge and proceeded to decide
the case simply on the basis of possession.
'The operation of the principle of estoppel on
the question of jurisdiction seemingly depends upon
whether the lower court actually had jurisdiction or
not, if it had no jurisdiction, but the case was tried
and decided upon the theory that it had jurisdiction,
the parties are not barred, on appeal, from assailing
such jurisdiction, for the same must exist as a
matter of law, and may not be conferred by
consent of the parties or by estoppel (5 C.J.S., 861-
863).' (La Naval Drug
Corporation v. Court of Appeals, 236 SCRA 78
[1994]).
Contrary to respondents' pretense, the filing by
petitioner of an action for the reformation of contract
may not really be an afterthought. As we understand it,
petitioner, to support its allegation that the contract was a
mere equitable mortgage, cites the fact that the price was
inadequate; it remained in possession of the premises; it
has retained a part of the purchase price; and, in any
case, the real intention of the parties was that the
transaction shall secure the payment by petitioner of its
loan, adverting to Article 1602 of the Civil Code. Under
Article 1604 of the same code, it is provided that the
presence of only one circumstance defined in Article
1602, such as those cited above, is sufficient for a
 contract of sale with right to repurchase to be presumed
an equitable mortgage. Without in any way preempting the
decision of the court in the action for reformation, it is
our considered view that, under the factual milieu, the
action was initiated for the proper determination of the
rights of the parties under the contract, and not just an
afterthought.
No derogatory inference can arise from petitioner's
admission of the  existence  of the deed of sale with
assumption of mortgage. The admission does not
necessarily dilute its claim that the same does not express
the true intent of the parties.
Verily, since the case at bench involves
a controverted right, the parties are required to preserve
the status quo  and await the decision of the
proper court on the true nature of the contract. It is but
just that the person who has first acquired possession
should remain in possession pending decision on said
case, and the parties cannot be permitted meanwhile to
engage in petty warfare over possession of property
which is the subject of dispute. To permit this will be
highly dangerous to individual security and disturbing to
the social order. (Manlapaz v. Court of Appeals, 191
SCRA 795 [1990])." 16

Hence, the present petition for review on certiorari where

petitioners raise the following assigned errors allegedly
committed by respondent Court of Appeals:
I.
THE DECISION OF THE
RESPONDENT COURT OF APPEALS IS CONTRARY TO
THE PROVISIONS OF SEC. 33 (2) OF THE JUDICIARY
REORGANIZATION ACT OF 1980 CONFERRING
EXCLUSIVE ORIGINAL JURISDICTION ON THE
METROPOLITAN TRIAL COURT IN EJECTMENT CASES
AND VESTING IT WITH AUTHORITY, INDEED
MANDATORILY, TO RESOLVE ISSUES OF OWNERSHIP TO
DETERMINE ISSUES OF POSSESSION.
 II.
THE DECISION OF THE RESPONDENT COURT IS
CONTRARY TO CURRENT AND PREVAILING  DOCTRINE
AS ENUNCIATED IN WILMON AUTO SUPPLY
CORP. VS. COURT OF APPEALS, 208 SCRA 108;
SY VS. COURT OF APPEALS, 200 SCRA 117; AND ASSET
PRIVATIZATION TRUST VS. COURT OF APPEALS, 229
SCRA 627.
III.
THE FILING OF THE REFORMATION CASE CONFIRMS THE
JURISDICTION OF THE METROPOLITAN
TRIAL COURT OVER THE EJECTMENT CASE; THE
DISMISSAL OF THE REFORMATION CASE CONFIRMS THE
FACT THAT IT WAS FILED MERELY AS A PLOY TO DELAY
DISPOSITION OF EJECTMENT PROCEEDINGS, AND BARES
NOT JUST THE ERROR BUT THE UTTER
INEQUITY OF THE RESPONDENT COURT'S DECISION
ANNULLING THE EJECTMENT DECREE AND SETTING
ASIDE THE REGIONAL
TRIAL COURT DECISION OF AFFIRMANCE.

Petitioners argue that the precedent laid down

in Ching  v. Malaya 17 relied upon by the Court of Appeals,
was based on the old law, Republic Act No. 296
(Judiciary Act of 1948), as amended, which vested in the city
courts original jurisdiction over forcible entry and unlawful
detainer proceedings and the corresponding power to receive
evidence upon the question of ownership for the only
purpose of determining the character and
extent of possession. 18 They claim that since the original
complaint for unlawful detainer was filed on April 13, 1992, then
the applicable law should have been Section 33 (2) of the
Judiciary Reorganization Act of 1980 (Batas Pambansa Blg.
129). That law vests in the city courts exclusive original
jurisdiction over forcible entry and unlawful detainer cases and
the corresponding power to receive evidence upon
questions of ownership and to resolve the issue of ownership to
determine the issue of possession. 19
 The history of the law vesting Municipal and Metropolitan
Trial Courts with jurisdiction over ejectment cases has invariably
revolved upon the assumption that the question of ownership
may be considered only if necessary for the determination of the
issue as to who of the parties shall have the right to possess the
property in litigation. 20 Thus, under the Judiciary Act of 1948,
as amended, Section 88 vested municipal and city courts with
authority to "receive evidence upon the question of title therein,
whatever may be the value of the property, solely for the
purpose of determining the character and extent of possession
and damages for detention." Section 3 of Republic Act No.
5967 that was enacted on June 21, 1969, provided that city
courts shall have concurrent jurisdiction with Courts of First
Instance over "ejection cases where the question of ownership
is brought in issue in the pleadings" and that the
issue of ownership shall be "resolved in conjunction with the
issue of possession." Expounding on that provision of law,
in Pelaez  v. Reyes, 21 this Court said:
". . . We are of the considered opinion that the
evident import of Section 3 above is to precisely grant to
the city courts concurrent original jurisdiction with the
courts of first instance over the cases enumerated
therein, which include 'ejection cases where the
question of ownership is brought in issue in the
pleadings.' To sustain petitioner's contention about the
meaning of the last phrase of paragraph (c) of said
section regarding the resolution of the
issue of ownership in conjunction with the
issue of possession' is to disregard the very
language of the main part of the section which denotes
unmistakably a conferment upon the city
courts of concurrent jurisdiction with the courts of first
instance over ejection cases in which ownership is brought
in issue in the pleadings. It is to Us quite clear that the
fact that the issue of ownership is to be resolved 'in
conjunction with the issue of possession' simply means
that both the issues of possession and ownership are to
be resolved by the city courts. And the jurisdiction is
 concurrent with the Courts of First Instance precisely
because usually questions of title are supposed to be
resolved by superior courts. In other words, this
grant of special jurisdiction to city courts is to be
distinguished from the power ordinarily accorded to
municipal courts to receive evidence of title only for the
purpose of determining the extent of the possession in
dispute."

Upon the approval on August 14, 1981 of Batas Pambansa

Blg. 129 or the Judiciary Reorganization Act of 1980, however,
the power of inferior courts, including city courts, to resolve the
issue of ownership in forcible entry and unlawful detainer cases
was modified. Resolution of the issue of ownership became
subject to the qualification that it shall be only for the
purpose of determining the issue of possession. In effect,
therefore, the city courts lost the jurisdiction to determine the
issue of ownership  per se that was theretofore concurrent with
the then Courts of Fist Instance. Thus, Section 33 of B.P. Blg.
129 provides that Metropolitan Trial Courts, Municipal Trial
Courts and Municipal Circuit Trial Courts shall exercise:
"Exclusive original jurisdiction over cases of forcible
entry and unlawful detainer: Provided, That when in such
cases, the defendant raises the question of ownership in
his pleadings and the question of possession cannot be
resolved without deciding the issue of ownership, the
issue of ownership shall be resolved only to determine the
issue of possession."

Accordingly, the Interim Rules and Guidelines in the

implementation of Batas Pambansa Blg. 129 provides as
follows:
"10. Jurisdiction in ejectment cases. — Metropolitan
trial courts, municipal trial courts, and municipal circuit
trial courts, without distinction, may try cases of forcible
entry and detainer even if the question of ownership is
raised in the pleadings and the question of possession
could not be resolved without deciding the
 issue of ownership, but the question of ownership shall
be resolved only to determine the issue of possession."

Explaining these provisions of law,

in Sps.  Refugia  v. Court  of Appeals,  22 the Court said:
"These issuances changed the former rule
under Republic Act No. 296 which merely allowed
inferior courts to receive evidence upon the
question of title solely for the purpose of determining
the extent  and  character  of possession and damages
for detention, which thereby resulted in previous
rulings of this Court to the effect that if it appears during
the trial that the principal issue relates to the
ownership of the property in dispute and any
question of possession which may be involved necessarily
depends upon the result of the inquiry into the title, then
the jurisdiction of the municipal or city courts is lost and
the action should be dismissed. With the
enactment of Batas Pambansa Blg. 129, the inferior
courts now retain jurisdiction over an ejectment case even
if the question of possession cannot be resolved without
passing upon the issue of ownership, with the express
qualification that such issue of ownership shall be
resolved only for the purpose of determining the
issue of possession. In other words, the fact that the
issues of ownership and possession  de facto  are
intricately interwoven will not cause the dismissal of the
case for forcible entry and unlawful detainer on
jurisdictional grounds."

Another development in the law has emphasized the fact

that inferior courts shall not lose jurisdiction over ejectment
cases solely because the issue of ownership is interwoven with
the issue of possession. Under the 1983 Rules on Summary
Procedure, as amended by a resolution of this Court that took
effect on November 15, 1991, all forcible entry and unlawful
detainer cases shall be tried pursuant to the Revised Rules on
Summary Procedure, regardless of whether or not the
issue of ownership of the subject property is alleged by a
party. 23 In other words, even if there is a need to resolve the
issue of ownership, such fact will not deprive the inferior
courts of jurisdiction over ejectment cases 24 that shall be tried
summarily.
When the jurisdiction of the Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial Courts was
expanded, thereby amending Batas Pambansa Blg. 129, by
virtue of Republic Act No. 7691 that took effect on April 15,
1994, the jurisdiction of said courts over ejectment cases was
retained. Thus,
in  Hilario  v. Court  of Appeals  this Court said:  cdphil

". . . As the law now stands, inferior courts retain

jurisdiction over ejectment cases even if the
question of possession cannot be resolved without
passing upon the issue of ownership; but this is subject to
the same caveat that the issue posed as to ownership
could be resolved by the court for the sole
purpose of determining the issue of possession.
Thus, an adjudication made therein regarding the
issue of ownership should be regarded as merely
provisional and, therefore, would not bar or prejudice an
action between the same parties involving title to the land.
The foregoing doctrine is a necessary consequence of the
nature of forcible entry and unlawful detainer cases
where the only issue to be settled is the physical or
material possession over the real property, that is,
possession de facto  and not possession de jure."

In other words, inferior courts are now "conditionally vested

with adjudicatory power over the issue of title or ownership
raised by the parties in an ejectment suit." 25 These courts shall
resolve the question of ownership raised as an incident in an
ejectment case where a determination thereof is necessary for a
proper and complete adjudication of the issue of possession.
Considering the difficulties that are usually encountered by
inferior courts as regards the extent of their power in
determining the issue of ownership,
in Sps.  Refugia  v. Court  of Appeals, the  Court set out
guidelines to be observed in the implementation  of the law
which, as stated at the outset, has recently been restated in the
1997 Rules of  Civil Procedure. The guidelines pertinent to this
case state:
"1. The primal rule is that the principal issue must be
that of possession, and that ownership is merely ancillary
thereto, in which case the issue of ownership may be
resolved but only for the purpose of determining the
issue of possession. Thus, . . ., the legal provision under
consideration applies only where the
inferior court believes and the
preponderance of evidence shows that a
resolution of the issue of possession is dependent upon
the resolution of the question of ownership.
2. It must sufficiently appear from the allegations in
the complaint that what the plaintiff really and primarily
seeks is the restoration of possession. Consequently,
where the allegations of the complaint as well as the
reliefs prayed for clearly establish a case for the
recovery of ownership, and not merely one for the
recovery of possession de facto, or where the averments
plead the claim of material possession as a mere
elemental attribute of such claim for ownership, or where
the issue of ownership is the principal question to be
resolved, the action is not one for forcible entry but one for
title to real property.
xxx xxx xxx
5. Where the question of who has the prior
possession hinges on the question of who the real
owner of the disputed portion is, the inferior court may
resolve the issue of ownership and make a declaration as
to who among the contending parties is the real owner. In
the same vein, where the resolution  of  the
issue  of  possession hinges on a
determination  of  the validity and interpretation  of  the
document  of  title or any other contract on which the
claim  of  possession is premised, the inferior  court  may
likewise pass upon these issues. This is because, and it
must be so understood, that any such pronouncement
 made affecting ownership of the disputed portion is to be
regarded merely as provisional, hence, does not bar nor
prejudice an action between the same parties involving
title to the land. Moreover, Section 7, Rule 70 of the
Rules of Court expressly provides that the judgment
rendered in an action for forcible entry or unlawful detainer
shall be effective with respect to the possession only and
in no wise bind the title or affect the ownership of the
land or building." 26 (Emphasis supplied.)

In the case at bar, petitioners clearly intended

recovery of possession over the Gilmore property. They alleged
in their complaint for unlawful detainer that their claim for
possession is buttressed by the execution of the Deed of Sale
with Assumption of Mortgage, a copy of which was attached as
Annex "A" to the complaint and by the issuance of TCT No.
67990 that evidenced the transfer of ownership over the
property. 27 Because metropolitan trial courts are authorized to
look into the ownership of the property in controversy in
ejectment cases, it behooved MTC Branch 41 to examine the
bases for petitioners' claim of ownership that entailed
interpretation of the Deed of Sale with
Assumption of Mortgage.
However, while it quoted paragraph (c) of the Deed of Sale
with Assumption of Mortgage that embodies the
agreement of the parties that possession of the Gilmore
property and its improvements shall remain with the vendor that
was obliged to transfer possession only after the
expiration of one year, 28 MTC Branch 41 apparently did not
examine the terms of the deed of sale. Instead, it erroneously
held that the issue of whether or not the document was in fact
an equitable mortgage "should not be properly raised in this
case." Had it examined the terms of the deed of sale, which,
after all is considered part of the allegations of the complaint
having been annexed thereto, that court would have found that,
even on its face, the document was actually one of equitable
mortgage and not of sale. The inferior court appears to have
forgotten that all documents attached to a complaint, the due
execution and genuineness of which are not denied under oath
by the defendant, must be considered as part of the complaint
without need of introducing evidence thereon. 29
Article 1602 of the Civil Code provides that a contract shall
be presumed to be an equitable mortgage by the
presence of any of the following:
"(1) When the price of a sale with right to
repurchase is unusually inadequate;
(2) When the vendor remains in possession as lessee
or otherwise;
(3) When upon or after the expiration of the right to
repurchase another instrument extending the
period of redemption or granting a new period is
executed;
(4) When the purchaser retains for himself a
part of the purchase price;
(5) When the vendor binds himself to pay the taxes
on the thing sold;
(6) In any other case where it may be fairly inferred
that the real intention of the parties is that the
transaction shall secure the payment of a debt or the
performance of any other obligation."

Article 1604 of the same Code provides that the

provisions of Article 1602 "shall also apply to a contract
purporting to be an absolute sale." The presence of even
one of the circumstances in Article 1602 is sufficient basis to
declare a contract as one of equitable mortgage. 30 The explicit
provision of Article 1602 that "any" of those circumstances
would suffice to construe a contract of sale to be
one of equitable mortgage is in consonance with the rule that
the law favors the least transmission of property rights.
The Deed of Sale with Assumption of Mortgage covering
the 2,000-square-meter lot located at No. 52 Gilmore Street, New
Manila, Quezon City provides as follows:
 "3. That the total consideration for the sale of the
above-described property by the VENDOR to the VENDEES
is FOURTEEN MILLION (P14,000,000.00) PESOS, in
Philippine currency, payable as follows:
a) The VENDOR shall be paid by the VENDEE the
sum of FIVE MILLION FOUR HUNDRED THOUSAND
(P5,400,000.00) PESOS upon the signing and
execution of this Deed of Sale With
Assumption of Mortgage after computation of the
mortgage obligation of the VENDOR with CHINA BANKING
CORPORATION in the amount of ___________________ which
the VENDEES agree to assume as part of the
consideration of this sale. The VENDEES hereby assume
the mortgage obligation of the VENDOR with the CHINA
BANKING CORPORATION in the total
amount of ___________________.
b) The VENDOR hereby undertakes and agrees with
the VENDEES that the first-named party shall warrant and
defend the title of said real property hereby conveyed in
favor of the VENDEES, their heirs, successors or assigns,
against all just claims of all persons or entities; that the
VENDOR also guarantees the right of the VENDEES to the
possession of the property subject of this contract
without the need of judicial action; and furthermore, the
VENDOR binds itself to execute any additional documents
to complete the title of the VENDEES to the above-
described property so that it may be registered in the
name of the VENDEES in accordance with the
provisions of the Land Registration Act.
c) It is hereby expressly agreed and understood by
and between the VENDOR and the VENDEES that the house
and other improvements found in the premises are included
in this sale and that  possession  of  said premises shall
be delivered to the VENDEES by the VENDOR at the
expiration  of  one (1) year from the date  of  the signing
and execution  of  this Deed  of  Sale with
Assumption  of  Mortgage.
 d) It is furthermore expressly provided and agreed by
and between the VENDOR and the VENDEES that the
capital gains tax shall be paid by the VENDOR while any
and all fees and expenses incident to the registration and
transfer of the title to the aforementioned property shall
be defrayed and borne by the VENDEES.
e) Attached to this Deed of Sale with
Assumption of Mortgage as Annex 'A' thereof is the
Certificate of ROSANA FLORES, Corporate
Secretary of PRICILIANO B. DEVELOPMENT
CORPORATION, a corporation duly organized and existing
under Philippine Laws who certified that at a special
meeting of the Board of Directors of said corporation
held on December 3, 1991 at which meeting a quorum was
present, the following resolution was adopted and passed,
to wit:
'RESOLVED, AS IT IS HEREBY RESOLVED, that
the company, PRICILIANO B. GONZALES
DEVELOPMENT is (sic) hereby authorized the
President, Mr. Antonio B. Gonzales to enter into
and/or negotiate for the sale of a property described
as Transfer Certificate of Title No. 383917 with an
area of TWO THOUSAND (2,000) SQUARE METERS
under the Registry of Deeds of Quezon City;
'RESOLVED FURTHER, that Mr. ANTONIO B.
GONZALES, is hereby authorized to sign, execute any
and all documents relative thereto.'
That aforesaid resolution is in full force and effect.
(sgd.)
ROSANA FLORES
Corporate Secretary
(SGD.)
f) Full title and possession over the above-described
property shall vest upon the VENDEES upon the full
compliance by them with all the terms and conditions
herein set forth." 31 (Emphasis supplied.)
 That under the agreement the private respondent as vendor
shall remain in possession of the property for only one year, did
not detract from the fact that possession of the property, an
indicium of ownership, was retained by private respondent as
the alleged vendor. That period of time may be deemed as
actually the time allotted to private respondent for fulfilling its
part of the agreement by paying its indebtedness to petitioners.
This may be gleaned from paragraph (f) that states that "full title
and possession" of the property "shall vest upon the VENDEES
upon the full compliance by them with all the terms and
conditions herein set forth.
Paragraph (f) of the contract also evidences the fact that
the agreed "purchase price" of fourteen million pesos
(P14,000,000.00) was not handed over by petitioners to private
respondent upon the execution of the agreement. Only
P5,400,000.00 was given by petitioners to private respondent, as
the balance thereof was to be dependent upon the private
respondent's satisfaction of its mortgage obligation to China
Banking Corporation. Notably, the MTC found that petitioners
gave private respondent the amount of P8,500,000.00 that
should be paid to the bank to cover the latter's obligation, thereby
leaving the amount of P100,000.00 (P5,400,000.00 +
P8,500,000.00 = P13,900,000.00) of the "purchase price" still
unpaid and in the hands of petitioners, the alleged "vendees."
Hence, two of the circumstances enumerated in Article
1602 are manifest in the Deed of Sale with
Assumption of Mortgage, namely: (a) the vendor would remain in
possession of the property (no. 2), and (b) the vendees retained a
part of the purchase price (no. 4). On its face, therefore, the
document subject of controversy, is actually a
contract of equitable mortgage.
The denomination of the contract as a deed of sale is not
binding as to its nature. The decisive factor in evaluating such an
agreement is the intention of the parties, as shown, not
necessarily by the terminology used in the contract, but by their
conduct, words, actions and deeds prior to, during and
immediately after executing the agreement. 32 Private
respondent's possession over the property was not denied by
petitioners as in fact it was the basis for their complaint for
unlawful detainer.
Neither does the issuance of a new transfer
certificate of title in petitioners' favor import conclusive
evidence of ownership or that the agreement between the
parties was one of sale. 33 In Macapinlac  v. Gutierrez Repide,
this Court said:
". . . it must be borne in mind that the equitable
doctrine . . . to the effect that any conveyance intended as
security for a debt will be held in effect to be a mortgage,
whether so actually expressed in the instrument or not,
operates regardless of the form of the agreement chosen
by the contracting parties as the repository of their will.
Equity looks through the form and considers the
substance; and no kind of engagement can be adopted
which will enable the parties to escape from the equitable
doctrine to which reference is made. In other words, a
conveyance of land, accompanied by registration in the
name of the transferee and the issuance of a new
certificate, is no more secured from the operation of the
equitable doctrine than the most informal conveyance that
could be devised." 34

A closer look into the allegations of the complaint would

therefore show that petitioners failed to make out a case for
unlawful detainer. By the allegations in the complaint, private
respondent as a mortgagor had the right to posses the property. A
mortgage is a real right constituted to secure an obligation upon
real property or rights therein to satisfy with the proceeds of the
sale thereof such obligation when the same becomes due and has
not been paid or fulfilled. 35 The mortgagor generally retains
possession of the mortgaged property 36 because by mortgaging
a piece of property, a debtor merely subjects it to a lien but
ownership thereof is not parted with. 37 In case of the debtor's
nonpayment of the debt secured by the mortgage, the only
right of the mortgagee is to foreclose the mortgage and have the
encumbered property sold to satisfy the outstanding
indebtedness. The mortgagor's default does not operate to vest
in the mortgagee the ownership  of the encumbered property, for
any such effect is against public policy. 38 Even if the property is
sold at a foreclosure sale, only upon expiration of the
redemption period, without the judgment debtor having made
use of his right of redemption, does ownership of the land sold
become consolidated in the purchaser. 39
Petitioners' tenuous claim for possession of the Gilmore
property was emasculated further by private respondent's answer
to their complaint. The latter claimed ownership of the property,
alleging that the agreement was one of mortgage and
not of sale. Private respondent alleged therein that in March
1993 (sic), it borrowed money from petitioner
Felicidad Oronce alone to redeem the subject property from
China Banking Corporation. She agreed to lend it the amount on
condition that the Gilmore property should be mortgaged to her to
guarantee payment of the loan. However, petitioner Flaminiano
took the money from petitioner Oronce and paid the mortgage
obligation of private respondent to the China Banking
Corporation while claiming that 50% of the amount was hers.
Petitioner Flaminiano's husband, Atty. Eduardo Flaminiano,
forthwith prepared the Deed of Sale with
Assumption of Mortgage and, without private respondent's
knowledge, had it registered for which reason a new
certificate of title was issued to petitioners. In claiming that the
agreement was one of mortgage, private respondent alleged in
its answer, inter alia, that the actual total value of the property
was thirty million pesos (P30,000,000.00); that while it had
possession of the property, petitioners did not then attempt to
repossess the same, notwithstanding the lapse of one year from
the execution of the document; that petitioners did not pay the
real estate taxes even after the transfer of title in their favor,
and that petitioners did not deliver to private respondent the
alleged purchase price.
 Considering these claims of private respondent, MTC
Branch 41 should have passed upon the issues raised on the
ownership of the Gilmore property for the
purpose of determining who had the right to possess the same.
As it turned out, it simply accepted the allegations of petitioners
without examining the supporting documents. Had it closely
analyzed the documents, it would have concluded that petitioners
could not have validly ousted private respondent from the
property since the basis for its claim of ownership, the
Deed of Sale with Assumption of Mortgage, was actually a
document evidencing an equitable mortgage. It would have
accordingly dismissed the complaint for
lack of cause of action.
In fine, had the MTC exercised its bounden duty to study the
complaint, it would have dismissed the same for
lack of cause of action upon a provisional ruling on the
issue of ownership based on the allegations and annexes of the
complaint. Or, exercising caution in handling the case,
considering petitioners' bare allegations of ownership, it should
have required the filing of an answer to the complaint and,
having been alerted by the adverse claim of ownership over the
same property, summarily looked into the issue of ownership
over the property. As this Court declared
in Hilario  v. Court  of Appeals:
"It is underscored, however, that the allegations in
the complaint for ejectment should sufficiently make out a
case for forcible entry or unlawful detainer, as the case
may be; otherwise, jurisdiction would not vest in the
inferior court. Jurisdiction over the subject matter is, after
all, determined by the nature of the action as alleged or
pleaded in the complaint. Thus, even where the defendant
alleges ownership or title to the property in his or her
answer, the inferior court will not be divested of its
jurisdiction. A contrary rule would pave the way for the
defendant to trifle with the ejectment suit, which is
summary in nature, as he could easily defeat the same
through the simple expedient of asserting ownership." 40
 As discussed above, even a perusal of the complaint
without going over the claims of private respondent in his
answer would have sufficed to arrive at a provisional
determination of the issue of ownership. The
importance of such provisional ruling on the issue of ownership
is demanded by the fact that, in the event that the claim of the
plaintiff in an ejectment case is controverted as in this case, any
ruling on the right of possession would be shaky, meaningless
and fraught with unsettling consequences on the property
rights of the parties. After all, the right of possession must
stand on a firm claim of ownership. Had the MTC made a
provisional ruling on the issue of ownership, the parties would
have availed of other remedies in law early on to thresh out their
conflicting claims.
Private respondent's action for reformation of instrument
was in fact a step in the right direction. However, its failure to
pursue that action 41 did not imply that private respondent had no
other remedy under the law as regards the issue of ownership
over the Gilmore property. There are other legal remedies that
either party could have availed of. Some of these remedies,
such as an action for quieting of title, have been held to coexist
with actions for unlawful detainer. 42 There is a policy against
multiplicity of suits but under the circumstances, only the
institution of proper proceedings could settle the controversy
between the parties in a definitive manner.
Hence, although the Court of Appeals resolved the appeal
under the misconception that the action for
reformation of instrument was still viable, it correctly held that
the controversy between the parties was beyond the ordinary
issues in an ejectment case. Because of the opposing
claims of the parties as to the true agreement between them,
the issue of ownership was in a sense a prejudicial question that
needed determination before the ejectment case should have
been filed. To reiterate, a decision reached in the ejectment case
in favor of any of the parties would have nonetheless spawned
litigation on the issue of ownership. At any rate, proceedings
would have been facilitated had the inferior courts made even a
provisional ruling on such issue.
The contentious circumstances surrounding the case were
demonstrated by an occurrence during the pendency of this
petition that cries out for the resolution of the
issue of ownership over the Gilmore property.
After the parties had filed their respective memoranda
before this Court, private respondent filed an urgent motion to
cite petitioner Rosita L. Flaminiano and her husband, Atty.
Eduardo B. Flaminiano, in contempt of court. 43 The motion was
founded on an affidavit of Dr. Tadeo Gonzales who resided at the
contested property, deriving his right to do so from private
respondent corporation that is owned by his family. Gonzales
alleged that on September 20, 1997, petitioner Flaminiano and her
husband entered the property through craftiness and intimidation.
At around 5:30 p.m. on that day, two (2) men knocked at the gate.
When the houseboy, Luis R. Fernandez, opened the gate for
pedestrians tentatively, the two men told him that they would like
to visit Gonzales' mother who was ailing.
Once inside, the two men identified themselves as
policemen and opened the gate for twenty (20) men, two (2)
trucks and an L-300 van to enter. When Gonzales went outside the
house, he saw thirty (30) to forty (40) men and two (2) trucks
entering the driveway. The person he asked regarding the
presence of those people inside the property turned out to be
the brother of petitioner Flaminiano. That person said, " Kami
ang may-ari dito, Matagal na kaming nagtitiis, kayo ang dapat sa
labas." After Gonzales had told him that the property was still
under litigation before this Court, the man said, "Walang
Supreme Court  — Supreme Court." When Gonzales asked
petitioner Flaminiano, who was inside the premises, to order the
people to leave, she said, "Papapasukin namin ito dahil sa amin
ito. Maglalagay ako ng tao diyan sa loob, sa harap, sa
likod.  Wala ng pakiusap." When a power generator was brought
inside the property and Gonzales pleaded that it be taken out
because the noise it would create would disturb his ailing mother,
Emiliana Gonzales, petitioner Flaminiano said, " Walang awa-awa
sa akin." Atty. Flaminiano butted in and, referring to Gonzales'
mother, said, "Ialis mo na, matanda na pala." When Gonzales
prevented the switching on of some lights in the house due to
faulty wiring, Atty. Flaminiano suggested, "Bakit hindi mo
ipasunog ito? May insurance pa kayo 5 million, madali lang
yan. Short circuit." Since the Flaminianos and their crew were
not about to leave the property, Gonzales called up his brother,
Atty. Antonio Gonzales, and informed him of what happened.
However, instead of confining themselves in the driveway, the
Flaminianos and their group entered the terrace, bringing in
food. prLL

Gonzales was all the while concerned about his 81-year-old

mother who had just been discharged from the hospital. However,
the Flaminianos stayed until the next day, September 22, 1997,
using the kitchen, furniture and other fixtures in the house.
Gonzales took pictures of Flaminiano and his companions. When
Atty. Flaminiano arrived, he confronted Gonzales and told him,
"Hindi ako natatakot kahit kanino ka pa mag-report, kahit pa sa
Supreme Court, gusto ko nga mag-reklamo kayo para matapos
ang kaso. Sa September 25, may shooting dito, gagawin ko ang
gusto ko dito." 44
The affidavits of Renato C. Mola, driver of Atty. Antonio
Gonzales, and that of Luis R. Fernandez, houseboy of Dr. Tadeo
Gonzales, as well as the xerox copy of the sworn statement
dated September 21, 1997 of Pria B. Gonzales before the
Philippine National Police in Camp Crame where she filed a
complaint against Atty. Flaminiano for the illegal entry into their
house, support the affidavit of Dr. Gonzales.
In its supplemental motion 45 to cite petitioner Flaminiano
and her husband, Atty. Flaminiano, in contempt of court, private
respondent alleged that the Flaminianos committed additional
contumacious acts in preventing another member of the family,
Mrs. Cipriana Gonzales, from entering the property. In her
affidavit, Mrs. Gonzales said that the Flaminianos and their people
used "the whole house, except the bedrooms, for their filming
activities." 46
Thereafter, private respondent filed an urgent motion for the
issuance of a temporary restraining order and/or
writ of preliminary injunction with this Court to enjoin
petitioners, Atty. Flaminiano and their representatives and agents
from preventing private respondent, its agents and
representatives from entering the property and to cease and
desist from occupying the property or from committing further
acts of dispossession of the property. 47 On October 13, 1997,
this Court issued the temporary restraining order prayed
for. 48 In the motion it filed on October 21, 1997, 49 private
respondent informed the Court that the TRO could not be served
upon petitioners immediately because, Atty. Flaminiano, their
counsel of record, had changed address without informing
the Court. It was served upon said counsel only on October 15,
1997. However, instead of complying with this Court's order,
petitioners continued occupying the property. On October 16,
1997, after receiving a copy of the TRO, petitioners put up a
huge billboard in front of the property stating that it is the
national headquarters of the People's Alliance for National
Reconciliation and Unity for Peace and Progress (PANRUPP).
In their comment on the motion for contempt, petitioners
noticeably did not controvert the facts set forth by private
respondent in said motion. Instead, it reasserted its
claim of ownership over the property as evidenced by TCT No.
67990. They alleged that they had mortgaged the property to the
Far East Bank and Trust Company in the amount of thirty million
pesos (P30,000,000.00) for which they are paying a monthly
interest of around P675,000.00 "without enjoying the material
possession of the subject property which has been unlawfully
and unjustly detained by private respondent for the last four (4)
years as it was used as the residence of the members of the
family of its President ANTONIO B. GONZALES without the said
private respondent paying rentals thereon for the period from
January 1995 up to October 5, 1997 when the said property was
voluntarily vacated by the members of the President
(sic) of respondent corporation, ANTONIO B. GONZALES, who
has since then been a fugitive from justice having been convicted
by final judgment of the crime of estafa through
falsification of public document and has succeeded in evading
his sentence."
They averred that Tadeo Gonzales erroneously claimed that
the rights of ownership and possession over the property are
still under litigation because "the issue of ownership is no longer
involved in this litigation when the complaint for
reformation of instrument with annulment of sale and title filed
by private respondent" was dismissed with finality by
reason of non-suit. Hence, they claimed that they "now stand to
be the unquestionable registered and lawful owners of the
property subject of controversy" and that the July 24, 1996
Decision of the Court of Appeals "has already lost its virtuality
and legal efficacy with the occurrence of a 'supervening event'
which is a superior cause superseding the basis of the
judgment" in CA-G.R. No. 39227 of respondent court.
They informed the Court that they are now leasing the
property to PANRUPP from October 1, 1997 to September 30,
1998. They alleged, however, that the property is in a "deplorable
state of decay and deterioration" that they saw the need
"to act swiftly and decisively to prevent further
destruction" of the property where they "invested
millions of pesos of their life-time savings to acquire the same."
Hence, they sought the assistance of barangay officials in
Barangay Mariana, New Manila who helped them effect "the
peaceful entry into the property of the petitioners without the
use of strategy, force and intimidation contrary to what was
alleged" in the motion for contempt. They "peacefully took over"
possession of the property on September 20, 1997 but allowed
the immediate members of the family of private respondent's
president to stay on. The family finally agreed to vacate the
premises on October 5, 1997 "upon the offer of the petitioners to
shoulder partially the expenses for the hospitalization of the
ailing mother at the St. Luke General Hospital where she was
brought by an ambulance accompanied by a doctor" at
petitioners' expense.
Petitioners questioned the issuance by this Court of the
TRO on October 13, 1997, asserting that when it was issued,
there were "no more acts to restrain the illegal occupants of the
subject property (as they) had already peacefully vacated the
premises on October 5, 1997 or more than a week after the said
TRO was issued by the Third Division" of this Court. They prayed
that the motion for contempt be denied for lack of merit and that
the TRO issued be lifted and set aside "for the act or acts sought
to be restrained have already been done and have become a  fait
accompli  before the issuance of the TEMPORARY RESTRAINING
ORDER on October 13, 1997." 50
As earlier discussed, petitioners' claim that the
dismissal of the action for reformation of instrument for non-
suit had written  finis  to the issue of ownership over the
Gilmore property is totally unfounded in law. Petitioners should be
reminded that the instant petition stemmed from an unlawful
detainer case, the issue of which is merely possession of the
property in question. The issue of ownership has not been
definitively resolved for the provisional determination of that
issue that should have been done by the MTC at the earliest
possible time, would only be for the purpose of determining who
has the superior right to possess the property. Inasmuch as
this Court has resolved that the rightful possessor should have
been private respondent and its representatives and agents, the
TRO issued by this Court on October 13, 1997 should not be
lifted. That the TRO was issued days before private respondent
left the property is immaterial. What is in question here is lawful
possession of the property, not possession on the basis of self-
proclaimed ownership of the property. For their part, petitioners
should cease and desist from further exercising
possession of the same property which possession, in the first
place, does not legally belong to them.
 The conduct of petitioner Flaminiano in taking possession
over the property as alleged by private respondent through Tadeo
Gonzales is deplorably high-handed. On an erroneous assumption
that she had been legally vested with ownership of the property,
she took steps prior to the present proceedings by illegally taking
control and possession of the same property in litigation.
Her act of entering the property in defiance of the
writ of preliminary injunction issued by
the Court of Appeals constituted indirect contempt under
Section 3, Rule 71 of the Rules of Court that should be dealt
with accordingly.
Be that as it may, what is disturbing to the Court is the
conduct of her husband, Eduardo Flaminiano, a lawyer 51 whose
actuations as an officer of the court should be beyond
reproach. His contumacious acts of entering the Gilmore
property without the consent of its occupants and in
contravention of the existing writ or preliminary injunction
issued by the Court of Appeals and making utterances showing
disrespect for the law and this Court, are certainly
unbecoming of a member of the Philippine Bar. To be sure, he
asserted in his comment on the motion for contempt that
petitioners "peacefully" took over the property. Nonetheless, such
"peaceful" take-over cannot justify defiance of the
writ of preliminary injunction that he knew was still in force.
Notably, he did not comment on nor categorically deny that he
committed the contumacious acts alleged by private respondent.
Through his acts, Atty. Flaminiano has flouted his duties as a
member of the legal profession. Under the Code of Professional
Responsibility, he is prohibited from counseling or abetting
"activities aimed at defiance of the law or at lessening
confidence in the legal system." 52
WHEREFORE, the instant petition for review on certiorari is
hereby DENIED and the questioned
Decision of the Court of Appeals AFFIRMED without prejudice
to the filing by either party of an action regarding the
ownership of the property involved. The temporary restraining
order issued on October 13, 1997 is hereby made permanent.
Petitioners and their agents are directed to turn over
possession of the property to private respondent.
Petitioner Rosita Flaminiano is hereby held
guilty of contempt of court for disobeying the
writ of injunction issued by the Court of Appeals and
accordingly fined P20,000.00 therefor. Her counsel and husband,
Atty. Eduardo B. Flaminiano, is ordered to pay a
fine of P25,000.00 for committing contumacious acts
unbecoming of a member of the Philippine Bar with a stern
warning that a repetition of the same acts shall be dealt with
more severely. Let a copy of this Decision be attached to his
record at the Office of the Bar Confidant. 
cdll

This Decision is immediately executory. Costs against

petitioners.
SO ORDERED.
 (Oronce v. Court of Appeals, G.R. No. 125766, [October 19,
|||

1998], 358 PHIL 616-651)

SECOND DIVISION

[G.R. No. 104599. March 11, 1994.]

JON DE YSASI III, petitioner,  vs. NATIONAL LABO
R RELATIONS COMMISSION (FOURTH DIVISION),
CEBU CITY, and JON DE YSASI, respondents.

DECISION
REGALADO, J  : p

The adage that blood is thicker than water obviously stood

for naught in this case, notwithstanding the vinculum of
paternity and filiation between the parties. It would indeed have
been the better part of reason if herein petitioner and private
respondent had reconciled their differences in an extrajudicial
atmosphere of familial amity and with the grace of reciprocal
concessions. Father and son opted instead for judicial
intervention despite the inevitable acrimony and negative
publicity. Albeit with distaste, the Court cannot proceed elsewise
but to resolve their dispute with the same reasoned detachment
accorded any judicial proceeding before it.
 LexLib

The records of this case reveal that petitioner was employed

by his father, herein private respondent, as farm administrator of
Hacienda Manucao in Hinigaran, Negros Occidental sometime in
April, 1980. Prior thereto, he was successively employed as sales
manager of Triumph International (Phil.), Inc. and later as
operations manager of Top Form Manufacturing (Phil.), Inc. His
employment as farm administrator was on a fixed salary, with
other allowances covering housing, food, light, power, telephone,
gasoline, medical and dental expenses.
As farm administrator, petitioner was responsible for the
supervision of daily activities and operations of the sugarcane
farm such as land preparation, planting, weeding, fertilizing,
harvesting, dealing with third persons in all matters relating to
the hacienda  and attending to such other tasks as may be
assigned to him by private respondent. For this purpose, he lived
on the farm, occupying the upper floor of the house there.
Following his marriage on June 6, 1982, petitioner moved to
Bacolod City with his wife and commuted to work daily. He
suffered various ailments and was hospitalized on two separate
occasions in June and August, 1982. In November, 1982, he
underwent fistulectomy, or the surgical removal of the fistula, a
deep sinuous ulcer. During his recuperation which lasted over
four months, he was under the care of Dr. Patricio Tan. In June,
1983, he was confined for acute gastroenteritis and, thereafter,
for infectious hepatitis from December, 1983 to January, 1984.
During the entire periods of petitioner's illnesses, private
respondent took care of his medical expenses and petitioner
continued to receive compensation. However, in April, 1984,
without due notice, private respondent ceased to pay the latter's
salary. Petitioner made oral and written demands for an
explanation for the sudden withholding of his salary from Atty.
Apolonio Sumbingco, private respondent's auditor and legal
adviser, as well as for the remittance of his salary. Both demands,
however, were not acted upon.
Petitioner then filed an action with
the National Labor Relations Commission (NLRC, for brevity),
Regional Arbitration Branch No. VI, Bacolod City, on October 17,
1984, docketed therein as RAB Case No. 0452-84, against private
respondent for illegal dismissal with prayer for reinstatement
without loss of seniority rights and payment of full back wages,
thirteenth month pay for 1983, consequential, moral and
exemplary damages, as well as attorney's fees.
On July 31, 1991, said complaint for illegal dismissal was
dismissed by the NLRC, 1 holding that petitioner abandoned his
work and that the termination of his employment was for a valid
cause, but ordering private respondent to pay petitioner the
amount of P5,000.00 as penalty for his failure to serve notice of
said termination of employment to the Department of Labor and
Employment as required by Batas Pambansa Blg. 130 and
consonant with this Court's ruling in Wenphil
Corporation vs. National Labor Relations Commission, et
al. 2 On appeal to the Fourth Division of the NLRC, Cebu City,
said decision was affirmed in toto. 3
His motion for reconsideration 4 of said decision having
been denied for lack of merit, 5 petitioner filed this petition
presenting the following issues for resolution: (1) whether or not
the petitioner was illegally dismissed; (2) whether or not he is
entitled to reinstatement, payment of back wages, thirteenth
month pay and other benefits; and (3) whether or not he is
entitled to payment of moral and exemplary damages and
attorney's fees because of illegal dismissal. The discussion of
these issues will necessarily subsume the corollary questions
presented by private respondent, such as the exact date when
petitioner ceased to function as farm administrator, the character
of the pecuniary amounts received by petitioner from private
respondent, that is, whether the same are in the nature of
salaries or pensions, and whether or not there was abandonment
by petitioner of his functions as farm administrator.
In his manifestation dated September 14, 1992, the Solicitor
General recommended a modification of the decision of herein
public respondent sustaining the findings and conclusions of the
Executive Labor Arbiter in RAB Case No. 0452-84, 6 for which
reason the NLRC was required to submit its own comment on
the petition. In compliance with the Court's resolution of
November 16, 1992, 7 NLRC filed its comment on February 12,
1992 largely reiterating its earlier position in support of the
findings of the Executive Labor Arbiter. 8
Before proceeding with a discussion of the issues, the
observation of the labor arbiter is worth noting:
"This case is truly unique. What makes this case
unique is the fact that because of the special relationship
of the parties and the nature of the action involved, this
case could very well go down (in) the annals of
the Commission as perhaps the first of its kind. For this
case is an action filed by an only son, his father's
namesake, the only child and therefore the only heir
against his own father. 9

Additionally, the Solicitor General remarked:

". . . After an exhaustive reading of the records, two
(2) observations were noted that may justify why
this labor case deserves special considerations. First,
most of the complaints that petitioner and private
respondent had with each other, were personal matters
affecting father and son relationship. And secondly, if any
 of the complaints pertain to their work, they allow their
personal relationship to come in the way. 10

I. Petitioner maintains that his dismissal from employment

was illegal because of want of just cause therefor and non-
observance of the requirements of due process. He also charges
the NLRC with grave abuse of discretion in relying upon the
findings of the executive labor arbiter who decided the case but
did not conduct the hearings thereof.  cdphil

Private respondent, in refutation, avers that there was

abandonment by petitioner of his functions as farm administrator,
thereby arming private respondent with a ground to terminate his
employment at Hacienda Manucao. It is also contended that it is
wrong for petitioner to question the factual findings of the
executive labor arbiter and the NLRC as only questions of law
may be appealed for resolution by this Court. Furthermore, in
seeking the dismissal of the instant petition, private respondent
faults herein petitioner for failure to refer to the corresponding
pages of the transcripts of stenographic notes, erroneously citing
Sections 15(d) and 16(d), Rule 44 (should be Section 16[c] and [d],
Rule 46 and Section 1[g], Rule 50) of the Rules of Court, which
provide that want of page references to the records is a ground
for dismissal of an appeal.
Prefatorily, we take advertence of the provisions of Article
221 of the Labor Code that technical rules of evidence
prevailing in courts of law and equity shall not be controlling, and
that every and all reasonable means to speedily and objectively
ascertain the facts in each case shall be availed of, without
regard to technicalities of law or procedure in the interest of due
process.
It is settled that it is not procedurally objectionable for the
decision in a case to be rendered by a judge, or a labor arbiter
for that matter, other than the one who conducted the hearing.
The fact that the judge who heard the case was not the judge
who penned the decision does not impair the validity of the
judgment, 11 provided that he draws up his decision and
resolution with due care and makes certain that they truly and
accurately reflect conclusions and final dispositions on the bases
of the facts of and evidence submitted in the case. 12
Thus, the mere fact that the case was initially assigned
to Labor Arbiter Ricardo T. Octavio, who conducted the hearings
therein from December 5, 1984 to July 11, 1985, and was later
transferred to Executive Labor Arbiter Oscar S. Uy, who
eventually decided the case, presents no procedural infirmity,
especially considering that there is a presumption of regularity in
the performance of a public officer's functions, 13 which
petitioner has not successfully rebutted.
We are constrained to heed the underlying policy in
the Labor Code relaxing the application of technical rules of
procedure in labor cases in the interest of due process, ever
mindful of the long-standing legal precept that rules of procedure
must be interpreted to help secure, not defeat, justice. For this
reason, we cannot indulge private respondent in his tendency to
nitpick on trivial technicalities to boost his arguments. The
strength of one's position cannot be hinged on mere procedural
niceties but on solid bases in law and jurisprudence.
The fundamental guarantees of security of tenure and due
process dictate that no worker shall be dismissed except for just
and authorized cause provided by law and after due
process. 14 Article 282 of the Labor Code enumerates the
causes for which an employer may validly terminate an
employment, to wit: (a) serious misconduct or willful
disobedience by the employee of the lawful orders of his employer
or representative in connection with his work; (b) gross and
habitual neglect by the employee of his duties; (c) fraud or willful
breach by the employee of the trust reposed in him by his
employer or duly authorized representative; (d) commission of a
crime or offense by the employee against the person of his
employer or any immediate member of his family or his duly
authorized representative; and (e) other causes analogous to the
foregoing. prcd
 The employer may also terminate the services of any
employee due to the installation of labor saving devices,
redundancy, retrenchment to prevent losses or the closing or
cessation of operation of the establishment or undertaking,
unless the closing is for the purpose of circumventing the
pertinent provisions of the Labor Code, by serving a written
notice on the workers and the Department of Labor and
Employment at least one (1) month before the intended date
thereof, with due entitlement to the corresponding separation pay
rates provided by law. 15 Suffering from a disease by reason
whereof the continued employment of the employee is prohibited
by law or is prejudicial to his and his co-employee's health, is also
a ground for termination of his services provided he receives the
prescribed separation pay. 16 On the other hand, it is well-settled
that abandonment by an employee of his work authorizes the
employer to effect the former's dismissal from employment. 17
After a careful review of the records of this case, we find
that public respondent gravely erred in affirming the decision of
the executive labor arbiter holding that petitioner abandoned his
employment and was not illegally dismissed from such
employment. For want of substantial bases, in fact or in law, we
cannot give the stamp of finality and conclusiveness normally
accorded to the factual findings of an administrative agency, such
as herein public respondent NLRC, 18 as even decisions of
administrative agencies which are declared "final" by law are not
exempt from judicial review when so warranted. 19
The following perceptive disquisitions of the Solicitor
General on this point deserve acceptance:
"It is submitted that the absences of petitioner in his
work from October 1982 to December 1982, cannot be
construed as abandonment of work because he has a
justifiable excuse. Petitioner was suffering from perennial
abscess in the peri-anal around the anus and fistula under
the medical attention of Dr. Patricio Tan of Riverside
Medical Center, Inc., Bacolod City (Tsn, Vol. III, Dr. Tan,
February 19, 1986 at 20-44).
 "This fact (was) duly communicated to private
respondent by medical bills sent to Hacienda Manucao
(Tsn, Vol. III, Dr. Tan, January 22, 1987 at 49-50).
"During the period of his illness and recovery,
petitioner stayed in Bacolod City upon the instruction(s) of
private respondent to recuperate thereat and to handle
only administrative matters of the hacienda in that city. As
a manager, petitioner is not really obliged to live and stay
24 hours a day inside Hacienda Manucao.
xxx xxx xxx
After evaluating the evidence within the context of
the special circumstances involved and basic human
experience, petitioner's illness and strained family relation
with respondent Jon de Ysasi II may be considered as
justifiable reason for petitioner Jon de Ysasi III's
absence from work during the period of October 1982 to
December 1982. In any event, such absence does not
warrant outright dismissal without notice and hearing.
xxx xxx xxx
"The elements of abandonment as a ground for
dismissal of an employee are as follows:
(1) failure to report for work or absence without
valid or justifiable reason; and (2) clear intention to
sever the employer-employee tie (Samson
Alcantara,  Reviewer in Labor and Social
Legislation, 1989 edition, p. 133).
"This Honorable Court, in several cases, illustrates
what constitute abandonment. In Dagupan Bus
Company  v.  NLRC  (191 SCRA 328), the Court rules that
for abandonment to arise, there must be a concurrence of
the intention to abandon and some overt act from which it
may be inferred that the employee has no more interest to
work. Similarly, in Nueva Ecija I Electric Cooperative,
Inc.  v.  NLRC  (184 SCRA 25), for abandonment to
constitute a valid cause for termination of employment,
there must be a deliberate, unjustified refusal of the
employee to resume his employment. . . . Mere absence is
 not sufficient; it must be accompanied by overt acts
unerringly pointing to the fact that the employee simply
does not want to work anymore.
"There are significant indications in this case, that
there is no abandonment. First, petitioner's absence and
his decision to leave his residence inside Hacienda
Manucao, is justified by his illness and strained
family relations. Second he has some medical certificates
to show his frail health. Third, once able to work, petitioner
wrote a letter (Annex 'J') informing private respondent of
his intention to assume again his employment. Last, but
not the least, he at once instituted a complaint for illegal
dismissal when he realized he was unjustly dismissed. All
these are indications that petitioner had no intention to
abandon his employment. 20

The record show that the parties herein do not dispute the
fact of petitioner's confinement in the hospital for his various
afflictions which required medical treatment. Neither can it be
denied that private respondent was well aware of petitioner's
state of health as the former admittedly shouldered part of the
medical and hospital bills and even advised the latter to stay in
Bacolod City until he was fit to work again. The disagreement as
to whether or not petitioner's ailments were so serious as to
necessitate hospitalization and corresponding periods for
recuperation is beside the point. The fact remains that on
account of said illnesses, the details of which were amply
substantiated by the attending physician, 21 and as the records
are bereft of any suggestion of malingering on the part of
petitioner, there was justifiable cause for petitioner's absence
from work. We repeat, it is clear, deliberate and unjustified
refusal to resume employment and not mere absence that is
required to constitute abandonment as a valid ground for
termination of employment. 22
With his position as farm administrator of Hacienda
Manucao, petitioner unmistakably may be classified as
a managerial employee 23 to whom the law grants an amount of
discretion in the discharge of his duties. This is why when
petitioner stated that "I assigned myself where I want to
go," 24 he was simply being candid about what he could do
within the sphere of his authority. His duties as farm
administrator did not strictly require him to keep regular hours or
to be at the office premises at all times, or to be subjected to
specific control from his employer in every aspect of his work.
What is essential only is that he runs the farm as efficiently and
effectively as possible and, while petitioner may definitely not
qualify as a model employee, in this regard he proved to be quite
successful, as there was at least a showing of increased
production during the time that petitioner was in charge of farm
operations.
If, as private respondent contends, he had no control over
petitioner during the years 1983 to 1984, this is because that was
the period when petitioner was recuperating from illness and on
account of which his attendance and direct involvement in farm
operations were irregular and minimal, hence the supervision and
control exercisable by private respondent as employer was
necessarily limited. It goes without saying that the control
contemplated refers only to matters relating to his functions as
farm administrator and could not extend to petitioner's personal
affairs and activities.
While it was taken for granted that for purposes of
discharging his duties as farm administrator, petitioner would be
staying at the house in the farm, there really was no explicit
contractual stipulation (as there was no formal employment
contract to begin with) requiring him to stay therein for the
duration of his employment or that any transfer of residence
would justify the termination of his employment. That petitioner
changed his residence should not be taken against him, as this is
undeniably among his basic rights, nor can such fact of transfer of
residence per se be a valid ground to terminate an employer-
employee relationship. cdrep

Private respondent, in his pleadings, asserted that as he was

yet uncertain of his son's intention of returning to work after his
confinement in the hospital, he kept petitioner on the payroll,
reported him as an employee of the hacienda  for social security
purposes, and paid his salaries and benefits with the mandated
deductions therefrom until the end of December, 1982. It was only
in January, 1983 when he became convinced that petitioner
would no longer return to work that he considered the latter to
have abandoned his work and, for this reason, no longer listed
him as an employee. According to private respondent, whatever
amount of money was given to petitioner from that time until
April, 1984 was in the nature of a pension or an allowance or
mere gratuitous doles from a father to a son, and not salaries as,
in fact, none of the usual deductions were made therefrom. It was
only in April, 1984 that private respondent completely stopped
giving said pension or allowance when he was angered by what
he heard petitioner had been saying about sending him to jail.
Private respondent capitalizes on the testimony of one
Manolo Gomez taken on oral deposition regarding petitioner's
alleged statement to him, "(h)e quemado los
(p)ue(n)tes de Manucao"  ("I have burned my bridges with
Manucao") as expressive of petitioner's intention to abandon his
job. In addition to insinuations of sinister motives on the part of
petitioner in working at the farm and thereafter abandoning the
job upon accomplishment of his objectives, private respondent
takes the novel position that the agreement to support his son
after the latter abandoned the administration of the farm legally
converts the initial abandonment to implied voluntary
resignation. 25
As earlier mentioned, petitioner ripostes that private
respondent undoubtedly knew about petitioner's illness and even
paid for his hospital and other medical bills. The assertion
regarding abandonment of work, petitioner argues, is further
belied by his continued performance of various services related to
the operations of the farm from May to the last quarter of 1983,
his persistent inquiries from his father's accountant and legal
adviser about the reason why his pension or allowance was
discontinued since April, 1984, and his indication of having
recovered and his willingness and capability to resume his work
at the farm as expressed in a letter dated September 14,
1984. 26 With these, petitioner contends that it is immaterial how
the monthly pecuniary amounts are designated, whether as
salary, pension or allowance, with or without deductions, as he
was entitled thereto in view of his continued service as farm
administrator. 27
To stress what was earlier mentioned, in order that a finding
of abandonment may justly be made there must be a concurrence
of two elements, viz.: (1) the failure to report for work or absence
without valid or justifiable reason, and (2) a clear intention to
sever the employer-employee relationship, with the second
element as the more determinative factor and being manifested
by some overt acts. Such intent we find dismally wanting in this
case.
It will be recalled that private respondent himself admitted
being unsure of his son's plans of returning to work. The absence
of petitioner from work since mid-1982, prolonged though it may
have been, was not without valid causes of which private
respondent had full knowledge. As to what convinced or led him
to believe that petitioner was no longer returning to work, private
respondent neither explains nor substantiates by any reasonable
basis how he arrived at such a conclusion.
Moreover, private respondent's claim of abandonment
cannot be given credence as even after January, 1983, when
private respondent supposedly "became convinced" that
petitioner would no longer work at the farm, the latter continued
to perform services directly required by his position as farm
administrator. These are duly and correspondingly evidenced by
such acts as picking up some farm machinery/equipment from
G.A. Machineries, Inc., 28 claiming and paying for additional farm
equipment and machinery shipped by said firm from Manila to
Bacolod through Zip Forwarders, 29 getting the payment of the
additional cash advances for molasses for crop year 1983-1984
from Agrotex Commodities, Inc., 30 and remitting to private
respondent through Atty. Sumbingco the sums collected along
with receipts for medicine and oil. 31
 It will be observed that all of these chores, which petitioner
took care of, relate to the normal activities and operations of the
farm. True, it is a father's prerogative to request or even
command his child to run errands for him. In the present case,
however, considering the nature of these transactions, as well as
the property values and monetary sums involved, it is unlikely
that private respondent would leave the matter to just anyone.
Prudence dictates that these matters be handled by someone
who can be trusted or at least be held accountable therefor, and
who is familiar with the terms, specifications and other details
relative thereto, such as an employee. If indeed petitioner had
abandoned his job or was considered to have done so by private
respondent, it would be awkward, or even out of place, to expect
or to oblige petitioner to concern himself with matters relating to
or expected of him with respect to what would then be his past
and terminated employment. It is hard to imagine what further
authority an employer can have over a dismissed employee so as
to compel him to continue to perform work-related tasks:
It is also significant that the special power of
attorney 32 executed by private respondent on June 26, 1980 in
favor of petitioner, specifically stating —
xxx xxx xxx
"That I, JON de YSASI, Filipino, of legal age,
married, and a resident of Hda. Manucao, hereinafter called
and referred to as PRINCIPAL, am a sugarcane planter,
BISCOM Mill District, and a duly accredited planter-member
of the BINALBAGAN-ISABELA PLANTERS' ASSOCIATION,
INC.;
That as such planter-member of BIPA, I have
check/checks with BIPA representing payment for all
checks and papers to which I am entitled to (sic) as such
planter-member;
That I have named, appointed and constituted as by
these presents I HEREBY NAME, APPOINT AND
CONSTITUTE as my true and lawful ATTORNEY-IN-FACT
JON de YSASI III
 whose specimen signature is hereunder affixed, TO
GET FOR ME and in my name, place and stead, my
check/checks aforementioned, said ATTORNEY-IN-FACT
being herein given the power and authority to sign for me
and in my name, place and stead, the receipt or receipts or
payroll for the said check/checks. PROVIDED, HOWEVER,
that my said ATTORNEY-IN-FACT cannot cash the said
check/checks, but to turn the same over to me for my
proper disposition.
That I HEREBY RATIFY AND CONFIRM the acts of my
Attorney-in-Fact in getting the said check/checks and
signing the receipts therefor.
That I further request that my said check/checks be
made a 'CROSSED CHECK'."
xxx xxx xxx

remained in force even after petitioner's employment was

supposed to have been terminated by reason of abandonment.
Furthermore, petitioner's numerous requests for an explanation
regarding the stoppage of his salaries and benefits, 33 the
issuance of withholding tax reports, 34 as well as
correspondence reporting his full recovery and readiness to go
back to work, 35 and, specifically, his filing of the complaint
for illegal dismissal are hardly the acts of one who has
abandoned his work.
We are likewise not impressed by the deposition of Manolo
Gomez, as witness for private respondent, ascribing statements
to petitioner supposedly indicative of the latter's intention to
abandon his work. We perceive the irregularity in the taking of
such deposition without the presence of petitioner's counsel, and
the failure of private respondent to serve reasonably advance
notice of its taking to said counsel, thereby foreclosing his
opportunity to cross-examine the deponent. Private respondent
also failed to serve notice thereof on the Regional Arbitration
Branch No. VI of the NLRC, as certified to by Administrative
Assistant Celestina G. Ovejera of said office. 36 Fair play dictates
that at such an important stage of the proceedings, which
involves the taking of testimony, both parties must be afforded
equal opportunity to examine and cross-examine a witness.
As to the monthly monetary amounts given to petitioner,
whether denominated as salary, pension, allowance or ex
gratia handout, there is no question as to petitioner's entitlement
thereto inasmuch as he continued to perform services in his
capacity as farm administrator. The change in description of said
amounts contained in the pay slips or in the receipts prepared by
private respondent cannot be deemed to be determinative of
petitioner's employment status in view of the peculiar
circumstances above set out. Besides, if such amounts were truly
in the nature of allowances given by a parent out of concern for
his child's welfare, it is rather unusual that receipts
therefor 37 should be necessary and required as if they were
ordinary business expenditures.
Neither can we subscribe to private respondent's theory that
petitioner's alleged abandonment was converted into an implied
voluntary resignation on account of the father's agreement to
support his son after the latter abandoned his work. As we have
determined that no abandonment took place in this case, the
monthly sums received by petitioner, regardless of designation,
were in consideration for services rendered emanating from an
employer-employee relationship and were not of a character that
can qualify them as mere civil support given out of parental duty
and solicitude. We are also hard put to imagine how abandonment
can be impliedly converted into a voluntary resignation without
any positive act on the part of the employee conveying a desire to
terminate his employment. The very concept of resignation as a
ground for termination by the employee of his
employment 38 does not square with the elements constitutive of
abandonment.
On procedural considerations, petitioner posits that there
was a violation by private respondent of the due process
requirements under the Labor Code for want of notice and
hearing. 39 Private respondent, in opposition, argues that Section
2, Rule XIV, Book V of the Omnibus Rules Implementing
the Labor Code applies only to cases where the employer seeks
to terminate the services of an employee on any of the grounds
enumerated under Article 282 of the Labor Code, but not to the
situation obtaining in this case where private respondent did not
dismiss petitioner on any ground since it was petitioner who
allegedly abandoned his employment. 40
The due process requirements of notice and hearing
applicable to labor cases are set out in Rule XIV, Book V of the
Omnibus Rules Implementing the Labor Code in this wise:
"Sec. 2. Notice of Dismissal. — Any employer who
seeks to dismiss a worker shall furnish him a written
notice stating the particular acts or omission(s)
constituting the grounds for his dismissal. In cases of
abandonment of work, notice shall be served at the
worker's last known address.
xxx xxx xxx
"Sec. 5. Answer and hearing. — The worker may
answer the allegations as stated against him in the notice
of dismissal within a reasonable period from receipt of
such notice. The employer shall afford the worker ample
opportunity to be heard and to defend himself with the
assistance of his representative, if he so desires.
"Sec. 6. Decision to dismiss. — The employer shall
immediately notify a worker in writing of a decision to
dismiss him stating clearly the reasons therefor.
"Sec. 7. Right to contest dismissal. — Any decision
taken by the employer shall be without prejudice to the
right of the worker to contest the validity or legality of his
dismissal by filing a complaint with the Regional Branch of
the Commission.
xxx xxx xxx
"Sec. 11. Report of Dismissal. — The employer shall
submit a monthly report to the Regional Office having
jurisdiction over the place of work at all dismissals
effected by him during the month, specifying therein the
names of the dismissed workers, the reasons for their
 dismissal, the dates of commencement and termination of
employment, the positions last held by them and such
other information as may be required by the Ministry for
policy guidance and statistical purposes."
 cdrep

Private respondent's argument is without merit as there can

be no question that petitioner was denied his right to due process
since he was never given any notice about his impending
dismissal and the grounds therefor, much less a chance to be
heard. Even as private respondent controverts the applicability of
the mandatory twin requirements of procedural due process in
this particular case, he in effect admits that no notice was served
by him on petitioner. This fact is corroborated by the certification
issued on September 5, 1984 by the Regional Director for Region
VI of the Department of Labor that no notice of termination of
the employment of petitioner was submitted thereto. 41
Granting arguendo that there was abandonment in this
case, it nonetheless cannot be denied that notice still had to be
served upon the employee sought to be dismissed, as the second
sentence of Section 2 of the pertinent implementing rules
explicitly requires service thereof at the employee's last known
address, by way of substantial compliance. While it is conceded
that it is the employer's prerogative to terminate an employee,
especially when there is just cause therefor, the requirements of
due process cannot be lightly taken. The law does not
countenance the arbitrary exercise of such a power or
prerogative when it has the effect of undermining the
fundamental guarantee of security of tenure in favor of the
employee. 42
On the executive labor arbiter's misplaced reliance on
the Wenphil  case, the Solicitor General rejoins as follows:
"The Labor Arbiter held thus:
'While we are in full agreement with the respondent
as to his defense of implied resignation and/or
abandonment, records somehow showed that he failed to
notify the Department of Labor and Employment for his
sons' (sic)/complainants' (sic) aba(n)donment as required
 by BP 130. And for this failure, the other requisite for a
valid termination by an employer was not complied with.
This however, would not work to invalidate the otherwise
(sic) existence of a valid cause for dismissal. The validity
of the cause of dismissal must be upheld at all times
provided however that sanctions must be imposed on the
respondent for his failure to observe the notice on due
process requirement. (Wenphil Corp. v. NLRC, G.R. No.
80587). (Decision Labor Arbiter, at 11-12, Annex 'C'
Petition), . . .'
"This is thus a very different case from Wenphil
Corporation  v.  NLRC, 170 SCRA 69. In  Wenphil, the rule
applied to the facts is: once an employee is dismissed for
just cause, he must not be rewarded re-employment and
backwages for failure of his employer to observe
procedural due process. The public policy behind this is
that, it may encourage the employee to do even worse and
render a mockery of the rules of discipline required to be
observed. However, the employer must be penalized for his
infraction of due process. In the present case, however,
not only was petitioner dismissed without due process, but
his dismissal is without just cause. Petitioner did not
abandon his employment because he has a justifiable
excuse." 43
II. Petitioner avers that the executive labor arbiter erred in
disregarding the mandatory provisions of Article 279 of
the Labor Code which entitles an illegally dismissed employee
to reinstatement and back wages and, instead, affirmed the
imposition of the penalty of P5,000.00 on private respondent for
violation of the due process requirements. Private respondent, for
his part, maintains that there was error in imposing the fine
because that penalty contemplates the failure to submit the
employer's report on dismissed employees to the DOLE regional
office, as required under Section 5 (now, Section 11), Rule XIV of
the implementing rules, and not the failure to serve notice upon
the employee sought to be dismissed by the employer.
Both the Constitution and the Labor Code enunciate in no
uncertain terms the right of every worker to security of
tenure. 44 To give teeth to this constitutional and statutory
mandates, the Labor Code spells out the relief available to an
employee in case of its denial:
"Art. 279. Security of Tenure. — In cases of regular
employment, the employer shall not terminate the services
of an employee except for a just cause or when authorized
by this Title. An employee who is unjustly dismissed from
work shall be entitled to reinstatement without loss of
seniority rights and other privileges and to his full
backwages, inclusive of allowances, and to his other
benefits of their monetary equivalent computed from the
time his compensation was withheld from him up to the
time of actual reinstatement."
 LLjur

Clearly, therefore, an employee is entitled to reinstatement

with full back wages in the absence of just cause for
dismissal. 45 The Court, however, on numerous occasions has
tempered the rigid application of said provision of
the Labor Code, recognizing that in some cases certain events
may have transpired as would militate against the practicability
of granting the relief thereunder provided, and declares that
where there are strained relations between the employer and
the employee, payment of back wages and severance pay may be
awarded instead of reinstatement, 46 and more particularly when
managerial employees are concerned. 47 Thus, where
reinstatement is no longer possible, it is therefore appropriate
that the dismissed employee be given his fair and just share of
what the law accords him. 48
We note with favor and give our imprimatur to the Solicitor
General's ratiocination, to wit:
"As a general rule, an employee who is unjustly
dismissed from work shall be entitled to reinstatement
without loss of seniority rights and to his backwages
computed from the time his compensation was withheld up
to the time of his reinstatement. (Morales vs. NLRC, 188
SCRA 295). But in  Pacific Cement Company,
Inc.  vs.  NLRC,  173 SCRA 192, this Honorable Court held
that when it comes to reinstatement, differences should be
 made between managers and the ordinary workingmen.
The Court concluded that a company which no longer
trusts its managers cannot operate freely in a competitive
and profitable manner. The NLRC should know the
difference between managers and ordinary workingmen. It
cannot imprudently order the reinstatement of managers
with the same ease and liberality as that of rank and file
workers who had been terminated. Similarly, a
reinstatement may not be appropriate or feasible in case of
antipathy or antagonism between the parties
(Morales, vs. NLRC, 188 SCRA 295).
"In the present case, it is submitted that petitioner
should not be reinstated as farm administrator of Hacienda
Manucao. The present relationship of petitioner and private
respondent (is) so strained that a harmonious and peaceful
employee-employer relationship is hardly possible." 49
III. Finally, petitioner insists on an award of moral damages,
arguing that his dismissal from employment was attended by bad
faith or fraud, or constituted oppression, or was contrary to
morals, good customs or public policy. He further prays for
exemplary damages to serve as a deterrent against similar acts
of unjust dismissal by other employers.
Moral damages, under Article 2217 of the Civil Code, may
be awarded to compensate one for diverse injuries such as
mental anguish, besmirched reputation, wounded feelings, and
social humiliation, provided that such injuries spring from a
wrongful act or omission of the defendant which was the
proximate cause thereof. 50 Exemplary damages, under Article
2229, are imposed by way of example or correction for the public
good, in addition to moral, temperate, liquidated or compensatory
damages. They are not recoverable as a matter of right, it being
left to the court to decide whether or not they should be
adjudicated. 51
We are well aware of the Court's rulings in a number of
cases in the past allowing recovery of moral damages where the
dismissal of the employee was attended by bad faith or fraud, or
constituted an act oppressive to labor, or was done in a manner
contrary to morals, good customs or public policy, 52 and of
exemplary damages if the dismissal was effected in a wanton,
oppressive or malevolent manner. 53 We do not feel, however,
that an award of the damages prayed for in this petition would be
proper even if, seemingly, the facts of the case justify their
allowance. In the aforestated cases of illegal dismissal where
moral and exemplary damages were awarded, the dismissed
employees were genuinely without fault and were undoubtedly
victims of the erring employers' capricious exercise of power.  LibLex

In the present case, we find that both petitioner and private

respondent can equally be faulted for fanning the flames which
gave rise to and ultimately aggravated this controversy, instead
of sincerely negotiating a peaceful settlement of their disparate
claims. The records reveal how their actuations seethed with
mutual antagonism and the undeniable enmity between them
negates the likelihood that either of them acted in good faith. It is
apparent that each one has a cause for damages against the
other. For this reason, we hold that no moral or exemplary
damages can rightfully be awarded to petitioner.
On this score, we are once again persuaded by the validity of
the following recommendation of the Solicitor General:
"The Labor Arbiter's decision in RAB Case No. 0452-
84 should be modified. There was no voluntary
abandonment in this case because petitioner has a
justifiable excuse for his absence, or such absence does
not warrant outright dismissal without notice and hearing.
Private respondent, therefore, is guilty of illegal dismissal.
He should be ordered to pay backwages for a period not
exceeding three years from date of dismissal. And in lieu of
reinstatement, petitioner may be paid separation pay
equivalent to one (1) month('s) salary for every year of
service, a fraction of six months being considered as one
(1) year in accordance with recent jurisprudence (Tan,
Jr. vs. NLRC, 183 SCRA 651). But all claims for damages
should be dismissed, for both parties are equally at
fault." 54
 The conduct of the respective counsel of the parties, as
revealed by the records, sorely disappoints the Court and invites
reproof. Both counsel may well be reminded that their ethical
duty as lawyers to represent their clients with zeal 55 goes
beyond merely presenting their clients' respective causes in
court. It is just as much their responsibility, if not more
importantly, to exert all reasonable efforts to smooth over legal
conflicts, preferably out of court and especially in consideration
of the direct and immediate consanguineous ties between their
clients. Once again, we reiterate that the useful function of a
lawyer is not only to conduct litigation but to avoid it whenever
possible by advising settlement or withholding suit. He is often
called upon less for dramatic forensic exploits than for wise
counsel in every phase of life. He should be a mediator for
concord and a conciliator for compromise, rather than a virtuoso
of technicality in the conduct of litigation. 56
Rule 1.04 of the Code of Professional Responsibility
explicitly provides that "(a) lawyer shall encourage his client to
avoid, end or settle the controversy if it will admit of a fair
settlement." On this point, we find that both counsel herein fell
short of what was expected of them, despite their avowed duties
as officers of the court. The records do not show that they took
pains to initiate steps geared toward effecting a rapprochement
between their clients. On the contrary, their acerbic and
protracted exchanges could not but have exacerbated the
situation even as they may have found favor in the equally hostile
eyes of their respective clients.
 cdphil

In the same manner, we find that the labor arbiter who

handled this regrettable case has been less than faithful to the
letter and spirit of the Labor Code mandating that
a labor arbiter "shall exert all efforts towards the amicable
settlement of a labor dispute within his jurisdiction." 57 If he
ever did so, or at least entertained the thought, the copious
records of the proceedings in this controversy are barren of any
reflection of the same.
 One final word. This is one decision we do not particularly
relish having been obliged to make. The task of resolving cases
involving disputes among members of a family leaves a bad taste
in the mouth and an aversion in the mind, for no truly meaningful
and enduring resolution is really achieved in such situations.
While we are convinced that we have adjudicated the legal issues
herein squarely on the bases of law and
jurisprudence, sans  sentimentality, we are saddened by the
thought that we may have failed to bring about the reconciliation
of the father and son who figured as parties to this dispute, and
that our adherence here to law and duty may unwittingly
contribute to the breaking, instead of the strengthening, of
familial bonds. In fine, neither of the parties herein actually
emerges victorious. It is the Court's earnest hope, therefore, that
with the impartial exposition and extended explanation of their
respective rights in this decision, the parties may eventually see
their way clear to an ultimate resolution of their differences on
more convivial terms.
WHEREFORE, the decision of
respondent National Labor Relations Commission is hereby
SET ASIDE. Private respondent is ORDERED to pay petitioner back
wages for a period not exceeding three (3) years, without
qualification or deduction, 58 and, in lieu of reinstatement,
separation pay equivalent to one (1) month for every year of
service, a fraction of six (6) months being considered as one (1)
whole year.
SO ORDERED.
 (De Ysasi III v. National Labor Relations Commission, G.R. No.
|||

104599, [March 11, 1994], 301 PHIL 180-207)

 EN BANC

[G.R. No. L-29543. November 29, 1969.]

GLORIA PAJARES, petitioner-appellant, vs. JUDGE
ESTRELLA  ABAD  SANTOS, MUNICIPAL COURT OF
MANILA and UDHARAM BAZAR CO., respondents-
appellees.

Moises C. Nicomedes  for petitioner-appellant.

Tomas Lopez Valencia  for respondents-appellees.

SYLLABUS

1. REMEDIAL LAW; PROCEDURE; BILL OF PARTICULARS;

DENIAL OF MOTION THEREFOR IN INSTANT CASE NOT ERROR
OF LAW. — It is plain and clear that no error of law, much less
any grave abuse of discretion, was committed by respondent
judge in denying appellant's motion for a bill of particulars in
the collection case instituted in the Municipal Court of Manila
by respondent-appellee for the recovery of her indebtedness of
P354.85 representing the overdue balance of her account for
ready-made goods ordered by and delivered to her in 1961.
Appellee's complaint precisely and concisely informed
appellant of the ultimate or essential facts constituting the
cause of action against her, in accordance with the
requirements of the Rules of Court.
2. ID.; ID.; ID.; EVIDENTIARY MATTERS NOT SUBJECT TO
BILL OF PARTICULARS. — Where the particulars sought all
concerned evidentiary matters, the same do not come within
the scope of Rule 12, Section I of the Rules of Court which
permits a party to move for a definite statement or for a bill of
particulars of any matter which is not averred with sufficient
definiteness or particularity to enable him to prepare his
responsive pleading or to prepare for trial.
 3. ID.; ID.; ID.; PARTICULARS INVOLVED IN INSTANT
CASE WITHIN KNOWLEDGE OF ADVERSE PARTY. — Since
appellant was engaged in the business of buying and selling
merchandise and appellee was one of her creditors from whom
she used to buy on credit ready-made goods for resale,
appellant had no need of the evidentiary particulars sought by
her to enable her to prepare her answer to the complaint or to
prepare for trial. These particulars were just as much within
her knowledge as appellee's. She could not logically pretend
ignorance as to the same, for all she had to do was to check
and verify her own records of her outstanding account with
appellee and state in her answer whether the outstanding
balance of her indebtedness was in the sum claimed by
appellee, or in a lesser amount. Furthermore, a month before
appellee filed its collection case, it had written appellant a
demand-letter for the payment of her outstanding account of
P354.85 within one week and appellant, through her counsel,
wrote appellee acknowledging her said indebtedness.
4. COURTS; CLOGGING OF COURT DOCKETS-
COLLECTION CASE INVOLVED IN INSTANT CASE NEEDLESSLY
CLOGGED COURT DOCKETS. — In this case, the simple
collection case has needlessly clogged the court dockets for
over seven years. Had appellant been but prudently advised by
her counsel to confess judgment and ask from her creditor the
reasonable time she needed to discharge her lawful
indebtedness, the expenses of litigation that she has incurred
would have been much more than sufficient to pay off her just
debt to appellee. Yet, here she still remains saddled with the
same debt, burdened by accumulated interests, after having
spent uselessly much more than the amount in litigation in this
worthless cause.
5. ID.; ID.; REMINDER TO LITIGANTS AND ATTORNEYS
AGAINST FILING OF UNMERITORIOUS CASES. — The
cooperation of litigants and their attorneys is needed so that
needless clogging of the court dockets with unmeritorious
cases may be avoided. There must be more faithful adherence
 to Rule 7, Section 5 of the Rules of Court which provides that
"the signature of an attorney constitutes a certificate by him
that he has read the pleading and that to the best of his
knowledge, information and belief, there is good ground to
support it; and that it is not interposed for delay" and expressly
admonishes that "for a willful violation of this rule an attorney
may be subjected to disciplinary action."

DECISION

TEEHANKEE, J  : p

We dismiss as frivolous petitioner-appellant's appeal from

the lower Court's Order of dismissal of her petition for a writ of
certiorari with prayer for preliminary injunction against
respondent judge's order denying her motion for a bill of
particulars as the defendant in a simple collection case.

The origin of the case is narrated in the Court of Appeals'

Resolution dated August 16, 1968 certifying the appeal to this
Court as involving purely questions of law:
"This is an appeal interposed by petitioner
Gloria Pajares from the order dated July 21, 1962
issued by the Court of First Instance of Manila,
dismissing her petition for certiorari with preliminary
injunction against respondent Judge
Estrella Abad Santos of the Municipal Court of Manila
and respondent Udharam Bazar & Co.
"There is no dispute that on April 25, 1962, the
Udharam Bazar & Co. sued Gloria Pajares before the
Municipal Court of Manila for recovery of a certain sum
of money. The lawsuit was docketed in the inferior
court as Civil Case No. 97309 and was eventually
assigned to the sala of the respondent
Judge Abad Santos.
 "In its complaint the Udharam Bazar & Co.
averred, among others, as follows:
"'2. That defendant in 1961, ordered from
the plaintiff quantities of ready made goods and
delivered to her in good condition and same were
already sold, but did not make the full payment
up to the present time;
"'3. That defendant is still indebted to the
plaintiff in the sum of P354.85, representing the
balance of her account as the value of the said
goods, which is already overdue and payable.'
"Instead of answering the complaint against her,
Gloria Pajares, however, moved for a bill of particulars
praying the inferior court to require the Udharam Bazar
& Co. to itemize the kinds of goods which she
supposedly purchased from the said company, the
respective dates they were taken and by whom they
were received as well as their purchase prices,
alleging that without this bill she would not be able to
meet the issues raised in the complaint.
"After due hearing, the inferior court denied the
motion of Gloria Pajares for a bill of particulars. Her
motion for reconsideration having been denied too by
the said court, she then brought the incident on
certiorari to the Court of First Instance of Manila,
alleging in support of her petition that in denying her
motion for a bill of particulars, the respondent judge
acted in grave abuse of discretion.
"But on July 19, 1962, herein respondent
Udharam Bazar & Co. filed a motion to dismiss the
petition for a writ of certiorari, as well as the petition
for a writ of Preliminary injunction, for the reasons: (1)
that the allegations of the complaint filed by the said
company in the inferior court, particularly paragraphs
2 and 3 thereof, are clear, specific and sufficiently
appraise the defendant, now herein petitioner
Gloria Pajares, of the nature of the cause of action
against her so as to enable her to prepare for her
 defenses; and (2) that the things asked for in the
motion for a bill of particulars are evidentiary matters,
which are beyond the pale of such bill. Convinced that
the said motion of the company is well founded, the
lower court accordingly dismissed the petition on April
21, 1962.
"Her subsequent motion for reconsideration
having been similarly denied by the court below,
Gloria Pajares undertook the present appeal to this
Court, contending under her lone assignment of error
to maintain her such appeal that the lower court erred
in dismissing her petition for certiorari with
preliminary injunction, in its order dated July 21, 1962,
as amended by its order dated August 18, 1962.
"The only genuine issues involved in the case at
bar are (1) whether the allegations of the complaint
sufficiently appraise Gloria Pajares of the nature of
the cause of action against her; and (2) whether the
items asked for by the said Gloria Pajares in her
motion for a bill of particulars constitute evidentiary
matters. To our mind these are purely legal questions.
A perusal of the brief of the parties has shown that no
genuine factual questions are at all involved in this
appeal."

It is plain and clear that no error of law, much less any

grave abuse of discretion, was committed by respondent judge
in denying appellant's motion for a bill of particulars in the
collection case instituted in the Municipal Court of Manila by
private respondent-appellee for the recovery of her
indebtedness of P354.85 representing the overdue balance of
her account for ready-made goods ordered by and delivered to
her in 1961. Appellee's complaint precisely and concisely
informed appellant of the ultimate or essential facts
constituting the cause of action against her, in accordance
with the requirements of the Rules of Court. 1
It was therefore improper for appellant, through her
counsel, to insist on her motion that appellee as plaintiff
"submit a bill of particulars, specifying therein in detail the
goods represented by the alleged amount of P354.85, giving the
dates and invoice numbers on which they were delivered to the
defendant, the amount due on each such invoice and by whom
they were received." These particulars sought all concerned
evidentiary matters and do not come within the scope of Rule
12, section 1 of the Rules of Court which permits a party "to
move for a definite statement or for a bill of particulars of any
matter which is not averred with sufficient definiteness or
particularly to enable him to prepare his responsive pleading or
to prepare for trial."
Since appellant admittedly was engaged in the business
of buying and selling merchandise at her stall at the Sta. Mesa
Market, Quezon City, and appellee was one of her creditors
from whom she used to buy on credit ready-made goods for
resale, appellant had no need of the evidentiary particulars
sought by her to enable her to prepare her answer to the
complaint or to prepare for trial. These particulars were just as
much within her knowledge as appellee's. She could not
logically pretend ignorance as to the same, for all she had to do
was to check and verify her own records of her outstanding
account with appellee and state in her answer whether from
her records the outstanding balance of her indebtedness was in
the sum of P354.85, as claimed by appellee, or in a lesser
amount.
The record shows, furthermore, that a month before
appellee filed its collection case, it had written appellant a
demand-letter for the payment of her outstanding account in
the said sum of P354.85 within one week. Appellant, through
her counsel, wrote appellee under date of March 23, 1962,
acknowledging her said indebtedness but stating that "Due to
losses she has sustained in the operation of her stall, she
would not be able to meet your request for payment of the full
amount of P354.85 at once. I would therefore request you to be
kind enough to allow her to continue paying you P10.00 every
15th and end of the month as heretofore."
 No error was therefore committed by the lower court in
summarily dismissing appellant's petition for certiorari against
respondent judge's order denying her motion for a bill of
particulars, as pretended by appellant in her lone assignment
of error. Well may we apply to this appeal, the words of Mr.
Justice J.B.L. Reyes in an analogous case,  2 that "the
circumstances surrounding this litigation definitely prove that
appeal is frivolous and a plain trick to delay payment and
prolong litigation unnecessarily. Such attitude deserves
condemnation, wasting as it does, the time that the courts
could well devote to meritorious cases."
Here, this simple collection case has needlessly clogged
the court dockets for over seven years. Had appellant been but
prudently advised by her counsel to confess judgment and ask
from her creditor the reasonable time she needed to discharge
her lawful indebtedness, the expenses of litigation that she has
incurred by way of filing fees in the Court of First Instance,
premiums for her appeal bond, appellate court docket fees,
printing of her appellant's brief, and attorney's fees would have
been much more than sufficient to pay off her just debt to
appellee. Yet, here she still remains saddled with the same
debt, burdened by accumulated interests, after having spent
uselessly much more than the amount in litigation in this
worthless cause.
As we recently said in another case,  3 the cooperation of
litigants and their attorneys is needed so that needless
clogging of the court dockets with unmeritorious cases may be
avoided. There must be more faithful adherence to Rule 7,
section 5 of the Rules of Court which provides that "the
signature of an attorney constitutes a certificate by him that he
has read the pleading and that to the best of his knowledge,
information and belief, there is good ground to support it; and
that it is not interposed for delay" and expressly admonishes
that "for a willful violation of this rule an attorney may be
subjected to disciplinary action."
 WHEREFORE, the order appealed from is affirmed, and
petitioner-appellant's counsel shall pay treble costs in all
instances. This decision shall be noted in the personal record
of the attorney for petitioner-appellant in this Court for future
reference. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal,
Zaldivar, Sanchez, Castro, Fernando and Barredo, JJ., concur.
 (Pajares v. Abad Santos, G.R. No. L-29543, [November 29, 1969],
|||

141 PHIL 443-449)

SECOND DIVISION
 [G.R. No. L-36138. January 31, 1974.]

THE PEOPLE OF THE PHILIPPINES,  plaintiff-

appellee, vs.  ANTONIO ROSQUETA, JR.,
EUGENIO ROSQUETA and CITONG
BRINGAS, defendants-appellants; ATTY. GREGORIO
B. ESTACIO, respondent.

RESOLUTION

FERNANDO, J  : p

Every now and then, although there seems to be more of

such cases of late, a member of the bar is proceeded against
for failure to live up to the responsibility owed to a client as
well as to this Court. This is another such instance. In our
resolution of May 25, 1973, we required respondent Gregorio B.
Estacio, counsel de parte for appellants to show cause why
disciplinary action should not be taken against him for failure
to file the brief for appellants within the period which expired
on March 30, 1973. He failed to show cause as thus required,
and on September 7, 1973, we issued a resolution suspending
him from the practice of law except for the purpose of filing the
brief which should be done within thirty days from receipt of
notice. Then on October 22, 1973, he filed a motion for
reconsideration wherein it appeared that he did seek to explain
his failure to file the brief on time, but he left it to be mailed on
June 9, 1973 with Antonio Rosqueta, Sr., father of appellants
Antonio Rosqueta, Jr. and Eusebio Rosqueta, who, however,
was unable to do so as on the 10th of June, his house caught
fire. He would impress on this Court that he was not informed
of such occurrence until the preparation of his motion for
reconsideration. At any rate, he would stress that both
Antonio Rosqueta, Sr. and Salvador Labariento, father-in-law of
the third appellant, Citong Bringas, informed him they would
withdraw the appeal as they could not raise the money needed
for pursuing it. He had a supplement to such motion for
reconsideration filed on October 25, 1973 wherein he stated
that he could not secure the affidavits of appellants
themselves as two of them were in the Penal Colony in Davao
and the third in the Iwahig Penal Colony in Palawan. On
November 5, 1973, this Court required appellants to comment
on a motion for reconsideration of respondent concerning
specifically their alleged desire to withdraw appeal.
Then on December 27, 1973, there was a motion of
respondent submitting two affidavits, one from
Antonio Rosqueta, Jr. and the aforesaid Citong Bringas and the
other from Eusebio Rosqueta wherein they indicated their
consent and approval to respondent's motion to withdraw
appeal. The joint affidavit of the first two appellants reads as
follows: "1. That we are the same persons named above who
have been charged in Criminal Case No. L-36138
entitled People v. Antonio Rosqueta, Jr., et al. pending on
appeal before the Supreme Court of the Philippines; 2. That we
hereby consent and approve the motion to withdraw the appeal
filed by our counsel, Atty. Gregorio B. Estacio before the
Supreme Court of the Philippines on that Criminal Case No. L-
36138 then pending in said Court; 3. That we have given our
consent and approval of our own will voluntarily, without
duress, force, threat or fraud or deceit; [In witness whereof],
we have hereunto set our signatures this 4th day of December
1973 in the Municipality of Panabo, Davao." 1 The affidavit of
Eusebio Rosqueta follows: "1. That I am one of the accused in
that case entitled People v. Antonio Rosqueta, Jr., et al.
under No. G.R. L-36138 now pending before the Supreme Court
of the Philippines; 2. That I hereby give my consent and
approval to the Motion to Withdraw the Appeal which has
been filed by our counsel Atty. Gregorio B. Estacio before the
Supreme Court on the above-stated case; 3. That I have
reached this conclusion after I have conferred with our counsel
Atty. Gregorio B. Estacio and this statement hereby revokes
and nullifies the statement signed by me on December 5, 1973
at the Central Sub-Colony, Iwahig Penal Colony, Palawan before
witnesses, namely, Mr. Abencio B. Gabayan and Miss Merle J.
Jopida; 4. That I have executed this affidavit of my own free
will, without intimidation, threat, fraud, deceit, duress or force;
[In witness whereof], I have hereunto set my hand this 13th day
of December, 1973 in the City of Puerto Princesa." 2
Respondent's liability is thus mitigated but he cannot be
absolved from the irresponsible conduct of which he is guilty.
Respondent should be aware that even in those cases where
counsel de parte is unable to secure from appellants or from
their near relatives the amount necessary to pursue the appeal,
that does not necessarily conclude his connection with the
case. It has been a commendable practice of some members of
the bar under such circumstances, to be designated as
counsel de oficio. That way the interest of justice is best
served. Appellants will then continue to receive the benefits of
advocacy from one who is familiar with the facts of the case.
What is more, there is no undue delay in the administration of
justice. Lawyers of such category are entitled to
commendation. They manifest fidelity to the concept that law
is a profession and not a mere trade with those engaged in it
being motivated solely by the desire to make money.
Respondent's conduct yields a different impression. What has
earned a reproof however is his irresponsibility. He should be
aware that in the pursuance of the duty owed this Court as well
as to a client, he cannot be too casual and unconcerned about
the filing of pleadings. It is not enough that he prepares them;
he must see to it that they are duly mailed. Such inattention as
shown in this case is inexcusable. At any rate, the suspension
meted on him under the circumstances is more than justified. It
seems, however, that well-nigh five months had elapsed. That
would suffice to atone for his misdeed.
WHEREFORE, the suspension of Atty. Gregorio B. Estacio
is lifted. The requirement to file the brief is dispensed with but
Atty. Gregorio B. Estacio is censured for negligence and
inattention to duty. Likewise, as prayed for by appellants
themselves, their appeal is dismissed.
 Zaldivar, Barredo, Antonio, Fernandez and Aquino,
JJ  ., concur.
 (People v. Rosqueta, Jr., G.R. No. L-36138 (Resolution), [January
|||

31, 1974], 154 PHIL 442-446)

THIRD DIVISION

[G.R. No. 80718. January 29, 1988.]

FELISA P. DE ROY and VIRGILIO

RAMOS, petitioners, vs. COURT OF APPEALS and LUIS BERNAL,
SR., GLENIA BERNAL, LUIS BERNAL, JR., HEIRS OF MARISSA
BERNAL, namely, GLICERIA DELA CRUZ BERNAL and LUIS
BERNAL, SR., respondents.

SYLLABUS

1. REMEDIAL LAW; CIVIL PROCEDURE; APPEAL; PERIOD FOR

APPEALING OR FOR FILING A MOTION FOR RECONSIDERATION, NON-
EXTENDIBLE. — The rule laid down in Habaluyas Enterprises, Inc. v. Japzon,
[G.R. No. 70895, August 5, 1985, 138 SCRA 46], that the fifteen-day period for
appealing or for filing a motion for reconsideration cannot be extended.
2. ID.; ID.; ID.; GRACE PERIOD IN BOCAVA CASE, INAPPLICABLE TO
THE CASE AT BAR. — The one-month grace period from the promulgation on
May 30, 1986 of the Court's Resolution in the clarificatory Habaluyas case, or up
to June 30, 1986, within which the rule barring extensions of time to file motions
for new trial or reconsideration may still be allowed cannot be invoked by the
petitioners as their motion for extension of time was filed on September 9, 1987,
more than a year after the grace period on June 30, 1986.

RESOLUTION
CORTES, J  : p

This special civil action for certiorari seeks to declare null and void two (2)
resolutions of the Special Division of the Court of Appeals in the Luis Bernal, Sr.,
et al. v. Felisa Perdosa De Roy, et al., CA-G.R. CV No. 07286. The first
resolution promulgated on 30 September 1987 denied petitioner's motion for
extension of time to file a motion for reconsideration and directed
entry of judgment since the decision in said case had become final; and the
second Resolution dated 27 October 1987 denied petitioners' motion for
reconsideration for having been filed out of time.
At the outset, this Court could have denied the petition outright for not being
verified as required by Rule 65 section 1 of the Rules of Court. However, even if
the instant petition did not suffer from this defect, this Court, on procedural and
substantive grounds, would still resolve to deny it.
The facts of the case are undisputed. The firewall of a burned out building
owned by petitioners collapsed and destroyed the tailoring shop occupied by the
family of private respondents, resulting in injuries to private respondents and the
death of Marissa Bernal, a daughter. Private respondents had been warned by
petitioners to vacate their shop in view of its proximity to the weakened wall but
the former failed to do so. On the basis of the foregoing facts, the Regional
Trial Court. First Judicial Region, Branch XXXVIII, presided by the Hon. Antonio
M. Belen, rendered judgment finding petitioners guilty of gross negligence and
awarding damages to private respondents. On appeal, the decision of the
trial court was affirmed in toto by the Court of Appeals in a decision promulgated
on August 17, 1987, a copy of which was received by petitioners on August 25,
1987. On September 9, 1987, the last day of the fifteen-day period to file an
appeal, petitioners filed a motion for extension of time to file a motion for
reconsideration, which was eventually denied by the appellate court in the
Resolution of September 30, 1987. Petitioners filed their motion for
reconsideration on September 24, 1987 but this was denied in the
Resolution of October 27, 1987.
This Court finds that the Court of Appeals did not commit a grave
abuse of discretion when it denied petitioners' motion for extension of time to file a
motion for reconsideration, directed entry of judgment and denied their motion for
reconsideration. It correctly applied the rule laid down in Habaluyas Enterprises,
Inc. v. Japzon, [G.R. No. 70895, August 5, 1985, 138 SCRA 46], that the fifteen-
day period for appealing or for filing a motion for reconsideration cannot be
extended. In its Resolution denying the motion for reconsideration, promulgated
on May 30, 1986 (142 SCRA 208), this Court en banc restated and clarified the
rule, to wit:
 Beginning one month after the promulgation of this Resolution, the rule shall be
strictly enforced that no motion for extension of time to file a motion for reconsideration
may be filed with the Metropolitan or Municipal Trial Courts, the Regional Trial Courts,
and the Intermediate Appellate Court. Such a motion may be filed only in cases pending
with the Supreme Court as the court of last resort, which may in its sound discretion
either grant or deny the extension requested. (at p. 212)
Lacsamana v. Second Special Cases Division of the Intermediate
Appellate Court, [G.R. No. 73146-53, August 26, 1986, 143 SCRA 643], reiterated
the rule and went further to restate and clarify the modes and periods of appeal.
Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 16, 1985,
144 SCRA 161], stressed the prospective application of said rule, and explained
the operation of the grace period, to wit:  LibLex

In other words, there is one-month grace period from the promulgation on May 30,
1986 of the Court's Resolution in the clarificatory Habaluyas case, or up to June 30,
1986, within which the rule barring extensions of time to file motions for new trial or
reconsideration is, as yet, not strictly enforceable.
Since petitioners herein filed their motion for extension on February 27, 1986, it is
still within the grace period, which expired on June 30, 1986, and may still be allowed.
This grace period was also applied in Mission v. Intermediate
Appellate Court [G.R. No. 73669, October 28, 1986, 145 SCRA 306].
In the instant case, however, petitioners' motion for extension of time was
filed on September 9, 1987, more than a year after the expiration of the grace
period on June 30, 1986. Hence, it is no longer within the coverage of the grace
period. Considering the length of time from the expiration of the grace period to
the promulgation of the decision of the Court of Appeals on August 25, 1987,
petitioners cannot seek refuge in the ignorance of their counsel regarding said
rule for their failure to file a motion for reconsideration within the reglementary
period. prLL

Petitioners contend that the rule enunciated in the Habaluyas case should

not be made to apply to the case at bar owing to the non-
publication of the Habaluyas decision in the Official Gazette as of the time the
subject decision of the Court of Appeals was promulgated. Contrary to petitioners'
view, there is no law requiring the publication of Supreme Court decisions in the
Official Gazette before they can be binding and as a condition to their becoming
effective. It is the bounden duty of counsel as lawyer in active law practice to keep
abreast of decisions of the Supreme Court particularly where issues have been
clarified, consistently reiterated, and published in the advance
reports of Supreme Court decisions (G.R.s) and in such publications as the
Supreme Court Reports Annotated (SCRA) and law journals.
 This Court likewise finds that the Court of Appeals committed no grave
abuse of discretion in affirming the trial court's decision holding petitioner liable
under Article 2190 of the Civil Code, which provides that "the proprietor of a
building or structure is responsible for the damage resulting from its total or partial
collapse, if it should be due to the lack of necessary repairs."
Nor was there error in rejecting petitioners argument that private
respondents had the "last clear chance" to avoid the accident if only they heeded
the warning to vacate the tailoring shop and, therefore, petitioners prior
negligence should be disregarded, since the doctrine of "last clear chance," which
has been applied to vehicular accidents, is inapplicable to this case.
WHEREFORE, in view of the foregoing, the Court Resolved to DENY the
instant petition for lack of merit.
Fernan, Gutierrez, Jr., Feliciano and Bidin, JJ., concur.
 

 (De Roy v. Court of Appeals, G.R. No. 80718 (Resolution),

|||

[January 29, 1988], 241 PHIL 804-808)

EN BANC

[G.R. No. 130068. October 1, 1998.]

FAR EASTERN SHIPPING COMPANY, petitioner,vs.C
OURT OF APPEALS and PHILIPPINE PORTS
AUTHORITY,  respondents.

[G.R. No. 130150. October 1, 1998.]

 MANILA PILOTS
ASSOCIATION,petitioner, vs.PHILIPPINE PORTS
AUTHORITY
and FAR EASTERN SHIPPING COMPANY,respondent
s.

SYLLABUS

1. REMEDIAL LAW; CIVIL PROCEDURE; PETITION FOR

REVIEW FROM THE REGIONAL TRIAL COURTS TO
THE COURT OF APPEALS; REQUIREMENTS; CERTIFICATION
AGAINST FORUM SHOPPING; A CERTIFICATION EXECUTED BY
THE COUNSEL IS A DEFECTIVE CERTIFICATION CLEARLY
EQUIVALENT TO NON-COMPLIANCE OF THE RULES AND
CONSTITUTES A VALID CAUSE FOR DISMISSAL OF THE
PETITION. — It must be stressed that the certification against
forum shopping ordained under the Rules is to be executed by
the petitioner,and not by counsel. Obviously it is the petitioner,
and not always the counsel whose professional services have
been retained for a particular case,.who is in the best position to
know whether he or it actually filed or caused the filing of a
petition in that case. Hence, a certification against forum
shopping by counsel is a defective certification. It is clearly
equivalent to non-compliance with the requirement under Section
2, Rule 42 in relation to Section 4, Rule 45, and constitutes a valid
cause for dismissal of the petition.
2. COMMERCIAL LAW; MARITIME AND ADMIRALTY LAWS;
CUSTOMS ADMINISTRATIVE ORDER NO. 15-65; RULES FOR
COMPULSORY PILOTAGE; COMPULSORY PILOT FOUND
NEGLIGENT IN THE PERFORMANCE OF HIS DUTIES; PRUDENCE
REQUIRED THAT HE, AS THE PILOT IN COMMAND, SHOULD HAVE
MADE SURE THAT HIS DIRECTIONS WERE PROMPTLY
FOLLOWED. — We affirm respondent court's finding that Capt.
Gavino failed to measure up to such strict standard of care and
diligence required of pilots in the performance of their duties. It
is disconcertingly riddled with too much incertitude and
manifests a seeming indifference for the possibly injurious
consequences his commands as pilot may have. Prudence
required that he, as pilot, should have made sure that his
directions were promptly and strictly followed. As correctly noted
by the trial court — Moreover, assuming that he did indeed give
the command to drop the anchor on time, as pilot he should have
seen to it that the order was carried out, and he could have done
this in a number of ways, one of which was to inspect the
bow of the vessel where the anchor mechanism was
installed. Of course, Captain Gavino makes reference to a
commotion among the crew members which supposedly caused
the delay in the execution of the command. This account was
reflected in the pilot's report prepared four hours later, but Capt.
Kavankov, while not admitting whether or not such a commotion
occurred, maintained that the command to drop anchor was
followed "immediately and precisely." Hence, the Court cannot
give much weight or consideration to this portion of Gavino's
testimony. An act may be negligent if it is done without the
competence that a reasonable person in the position of the actor
would recognize as necessary to prevent it from creating an
unreasonable risk of harm to another. Those who undertake any
work calling for special skills are required not only to exercise
reasonable care in what they do but also possess a standard
minimum of special knowledge and ability. Every man who offers
his services to another, and is employed, assumed to exercise in
the employment such skills he possess, with a reasonable
degree of diligence. In all these employments where peculiar
skill is requisite, if one offers his services he is understood as
holding himself out to the public as possessing the
degree of skill commonly possessed by others in the same
employment, and if his pretensions are unfounded he commits a
species of fraud on every man who employs him in reliance on
his public profession. Furthermore, there is an obligation on all
persons to take the care which, under ordinary
circumstances of the case, a reasonable and prudent man would
take, and the omission of that care constitutes negligence.
Generally, the degree of care required is graduated according to
the danger a person or property attendant upon the activity which
the actor pursues or the instrumentality which he uses. The
greater the danger the greater the degree of care required. What
is ordinary under extraordinary of conditions is dictated by those
conditions; extraordinary risk demands extraordinary care.
Similarly, the more imminent the danger, the higher the
degree of care.
3. ID.; ID.; ID.; THE COURT OF APPEALS PROPERLY
APPLIED THE CLEAR AND UNEQUIVOCAL PROVISIONS THEREOF
IN HOLDING THE MANILA PILOTS ASSOCIATION JOINTLY AND
SOLIDARILY LIABLE WITH ITS MEMBER PILOT. — No reliance can
be placed by MPA on the cited American rulings as to immunity
from liability of a pilots' association in light of existing positive
regulation under Philippine law. The Court of Appeals properly
applied the clear and unequivocal
provisions of Customs Administrative Order No. 15-65. In doing
so, it was just being consistent with its finding of the non-
existence of employer-employee relationship between MPA and
Capt. Gavino which precludes the application of Article
2180 of the Civil Code. True, Customs Administrative Order No.
15-65 does not categorically characterize or label MPA's liability
as solidary in nature. Nevertheless, a careful reading and proper
analysis of the correlated provisions lead to the conclusion that
MPA is solidarily liable for the negligence of its member pilots,
without prejudice to subsequent reimbursement from the pilot at
fault. Article 1207 of the Civil Code provides that there is
solidary liability only when the obligation expressly so states, or
when the law or the nature of the obligation requires solidarity.
Plainly, Customs Administrative Order No. 15-65 which as an
implementing rule has the force and effect of law, can validly
provide for solidary liability.
4. ID.;ID.;ID.;ID.;MASTER OF THE VESSEL LIKEWISE FOUND
LIABLE WITH THE COMPULSORY PILOT FOR NEGLIGENCE; HE
FAILED TO ACT WHEN THE PERILOUS SITUATION SHOULD
HAVE SPURRED HIM INTO QUICK AND DECISIVE ACTION AS THE
MASTER OF THE SHIP. — Where a compulsory pilot is in
charge of a ship, the master being required to permit him to
navigate it, if the master observes that the pilot is incompetent or
physically incapable, then it is the duty of the master to refuse
to permit the pilot to act. But if no such reasons are present,
then the master is justified in relying upon the pilot, but not
blindly.  Under the circumstances of this case, if a situation
arose where the master, exercising that reasonable vigilance
which the master of a ship should exercise, observed, or should
have observed, that the pilot was so navigating the vessel that
she was going, or was likely to go, into danger, and there was in
the exercise of reasonable care and vigilance an opportunity for
the master to intervene so as to save the ship from danger, the
master should have acted accordingly. The master of  a vessel
must exercise a degree  of vigilance commensurate with the
circumstances.Inasmuch as the matter of negligence is a
question of fact, we defer to the findings of the trial court,
especially as this is affirmed by the Court of Appeals. But even
beyond that, our own evaluation is that Capt. Kabankov's shared
liability is due mainly to the fact that he failed to act when the
perilous situation should have spurred him into quick and decisive
action as master of the ship. In the face of imminent or actual
danger, he did not have to wait for the happenstance to occur
before countermanding or overruling the pilot. By his own
admission, Capt. Kabankov concurred with Capt. Gavino's
decisions, and this is precisely the reason why he decided not to
countermand any of the latter's orders. Inasmuch as both lower
courts found Capt. Gavino negligent, by expressing full agreement
therewith Capt. Kabankov was just as negligent as Capt.
Gavino. TIEHSA

DECISION

REGALADO,  J  : p

These consolidated petitions for review on certiorari seek in

unison to annul and set aside the
decision 1 of respondent Court of Appeals of November 15,
1996 and its resolution 2 dated July 31, 1997 in CA-G.R. CV No.
24072, entitled "Philippine Ports Authority, Plaintiff-
Appellee vs. Far Eastern Shipping Company, Senen C. Gavino
and Manila Pilots' Association, Defendants-Appellants," which
affirmed with modification the judgment of the
trial court holding the defendants-appellants therein solidarily
liable for damages in favor of herein private respondent.
There is no dispute about the facts as found by the
appellate court, thus —
...On June 20, 1980, the M/V PAVLODAR, flying under
the flagship of the USSR, owned and operated by
the Far Eastern Shipping Company (FESC for brevity's
sake),arrived at the Port of Manila from Vancouver, British
Columbia at about 7:00 o'clock in the morning. The vessel
was assigned Berth 4 of the Manila International Port, as
its berthing space. Captain Roberto Abellana was tasked
by the Philippine Port Authority to supervise the
berthing of the vessel. Appellant Senen Gavino was
assigned by the Appellant Manila Pilots' Association (MPA
for brevity's sake) to conduct docking maneuvers for the
safe berthing of the vessel to Berth No. 4.
Gavino boarded the vessel at the quarantine
anchorage and stationed himself in the bridge, with the
master of the vessel, Victor Kavankov, beside him. After a
briefing of Gavino by Kavankov of the particulars of the
vessel and its cargo, the vessel lifted anchor from the
quarantine anchorage and proceeded to the Manila
International Port. The sea was calm and the wind was
ideal for docking maneuvers.
When the vessel reached the landmark (the big
church by the Tondo North Harbor) one-half mile from the
pier, Gavino ordered the engine stopped. When the vessel
was already about 2,000 feet from the pier, Gavino ordered
the anchor dropped. Kavankov relayed the orders to the
crew of the vessel on the bow. The left anchor, with two
(2) shackles, were dropped. However, the anchor did not
take hold as expected. The speed of the vessel did not
 slacken. A commotion ensued between the crew members.
A brief conference ensued between Kavankov and the
crew members. When Gavino inquired what was all the
commotion about, Kavankov assured Gavino that there
was nothing to it.
After Gavino noticed that the anchor did not take
hold, he ordered the engines half-astern. Abellana, who
was then on the pier apron noticed that the vessel was
approaching the pier fast. Kavankov likewise noticed that
the anchor did not take hold. Gavino thereafter gave the
"full-astern" code. Before the right anchor and additional
shackles could be dropped, the bow of the vessel rammed
into the apron of the pier causing considerable damage to
the pier. The vessel sustained damage too.
(Exhibit  "7-  Far  Eastern  Shipping").Kavankov filed his
sea protest (Exhibit  "1-Vessel").Gavino submitted his
report to the Chief Pilot ( Exhibit "1 -Pilot ") who referred
the report to the Philippine Ports Authority ( Exhibit "2-
Pilot").Abellana likewise submitted his report of the
incident (Exhibit "B ").
Per contract and supplemental contract of the
Philippine Ports Authority and the contractor for the
rehabilitation of the damaged pier, the same cost the
Philippine Ports Authority the amount of P1,126,132.25
(Exhibits "D" and "E"). 3

On January 10, 1983, the Philippine Ports Authority (PPA, for

brevity),through the Solicitor General, filed before the Regional
Trial Court of Manila, Branch 39, a complaint for a
sum of money against Far Eastern Shipping Co.,Capt. Senen C.
Gavino and the Manila Pilots' Association, docketed as Civil Case
No. 83-14958, 4 praying that the defendants therein be held
jointly and severally liable to pay the plaintiff actual and
exemplary damages plus costs of suit. In a decision dated
August 1, 1985, the trial court ordered the defendants therein
jointly and severally to pay the PPA the amount of P1,053,300.00
representing actual damages and the costs of suit. 5
 The defendants appealed to the Court of Appeals and
raised the following issues: (1) Is the pilot of a commercial
vessel, under compulsory pilotage, solely liable for the damage
caused by the vessel to the pier, at the port of destination, for
his negligence? and (2) Would the owner of the vessel be liable
likewise if the damage is caused by the concurrent
negligence of the master of the vessel and the pilot under a
compulsory pilotage?
As stated at the outset, respondent
appellate court affirmed the findings of the court a
quo except that it found no employer-employee relationship
existing between herein private respondents Manila Pilots'
Association (MPA, for short) and Capt. Gavino. 6 This being so, it
ruled instead that the liability of MPA is anchored, not on Article
2180 of the Civil Code, but on the provisions of Customs
Administrative Order No, 15-65, 7 and accordingly modified said
decision of the trial court by holding MPA, along with its co-
defendants therein, still solidarily liable to PPA but entitled MPA
to reimbursement from Capt. Gavino for such amount of the
adjudged pecuniary liability in excess of the amount equivalent
to seventy-five percent (75%) of its prescribed reserve fund. 8
Neither Far Eastern Shipping Co. (briefly, FESC) nor MPA
was happy with the decision of the Court of Appeals and
both of them elevated their respective plaints to us via separate
petitions for review on certiorari.  LexLib

In G.R. No. 130068, which was assigned to the Second

Division of this Court, FESC imputed that
the Court of Appeals seriously erred:
1. in not holding Senen C. Gavino and the Manila
Pilots' Association as the parties solely responsible for the
resulting damages sustained by the pier deliberately
ignoring the established jurisprudence on the matter;
2. in holding that the master had not exercised the
required diligence demanded from him by the
circumstances at the time the incident happened;
 3. in affirming the amount of damages sustained by
the respondent Philippine Ports Authority despite a strong
and convincing evidence that the amount is clearly
exorbitant and unreasonable;
4. in not awarding any amount of counterclaim
prayed for by the petitioner in its answer; and
5. in not granting herein petitioner's claim against
pilot Senen C. Gavino and Manila Pilots' Association in the
event that it be held liable. 9

Petitioner asserts that since the MV PAVLODAR was under

compulsory pilotage at the time of the incident, it was the
compulsory pilot, Capt. Gavino, who was in command and had
complete control in the navigation and docking of the vessel. It
is the pilot who supersedes the master for the time being in the
command and navigation of a ship and his orders must be
obeyed in all respects connected with her navigation.
Consequently, he was solely responsible for the damage caused
upon the pier apron, and not the owners of the vessel. It claims
that the master of the boat did not commit
any act of negligence when he failed to countermand or
overrule the orders of the pilot because he did not see any
justifiable reason to do so. In other words, the master cannot be
faulted for relying absolutely on the competence of the
compulsory pilot. If the master does not observe that a
compulsory pilot is incompetent or physically incapacitated, the
master is justified in relying on the pilot. 10
Respondent PPA, in its comment, predictably in full
agreement with the ruling of respondent court on the solidary
liability of FESC, MPA and Capt. Gavino, stresses the concurrent
negligence of Capt. Gavino, the harbor pilot, and Capt. Viktor
Kabankov. * shipmaster of MV Pavlodar, as the basis of their
solidary liability for damages sustained by PPA. It posits that the
vessel was being piloted by Capt. Gavino with Capt. Kabankov
beside him all the while on the bridge of the vessel, as the
former took over the helm of MV Pavlodar when it rammed and
damaged the apron of the pier of Berth No. 4 of the Manila
International Port. Their concurrent negligence was the
immediate and proximate cause of the collision between the
vessel and the pier — Capt. Gavino, for his negligence in the
conduct of docking maneuvers for the safe berthing of the
vessel; and Capt. Kabankov, for failing to countermand the
orders of the harbor pilot and to take over and steer the vessel
himself in the face of imminent danger, as well as for merely
relying on Capt. Gavino during the berthing procedure. 11
On the other hand, in G.R. No. 130150, originally assigned to
the Court's First Division and later transferred to the Third
Division, MPA, now as petitioner in this case, avers that
respondent court's errors consisted in disregarding and
misinterpreting Customs Administrative Order No. 15-65 which
limits the liability of MPA. Said pilots' association asseverates
that it should not be held solidarily liable with Capt. Gavino who,
as held by respondent court, is only a member, not an employee,
thereof. There being no employer-employee relationship, neither
can MPA be held liable for any vicarious liability for the respective
exercise of profession by its members nor be considered a joint
tortfeasor as to be held jointly and severally liable. 12 It further
argues that there was erroneous reliance on
Customs Administrative Order No. 15-65 and the constitution and
by-laws of MPA, instead of the provisions of the Civil Code on
damages which, being a substantive law, is higher in category
than the aforesaid constitution and by-laws of a professional
organization or an administrative order which bears no provision
classifying the nature of the liability of MPA for the negligence
its member pilots. 13
As for Capt. Gavino, counsel for MPA states that the former
had retired from active pilotage services since July 28, 1994 and
has ceased to be a member of petitioner pilots' association. He
is not joined as a petitioner in this case since his whereabouts
are unknown. 14
FESC' s comment thereto relied on the
competence of the Court of Appeals in construing
provisions of law or administrative orders as bases for
ascertaining the liability of MPA, and expressed full accord with
the appellate court's holding of solidary liability among itself.
MPA and Capt. Gavino. It further avers that the disputed
provisions of Customs Administrative Order No. 15-65 clearly
established MPA's solidary liability. 15
On the other hand, public respondent PPA, likewise through
representations by the Solicitor General, assumes the same
supportive stance it took in G.R. No. 130068 in declaring its total
accord with the ruling of the Court of Appeals that MPA is
solidarily liable with Capt. Gavino and FESC for damages, and in
its application to the fullest extent of the
provisions of Customs Administrative Order No. 15-65 in relation
to MPA's constitution and by-laws which spell out the
conditions of and govern their respective liabilities. These
provisions are clear and unambiguous as regards MPA's liability
without need for interpretation or construction. Although
Customs Administrative Order No. 15-65 is a mere regulation
issued by an administrative agency pursuant to delegated
legislative authority to fix details to implement the law, it is
legally binding and has the same statutory force as any valid
statute. 16
Upon motion 17 by FESC dated April 24, 1998 in G.R. No.
130150, said case was consolidated with G.R. No. 130068. 18
Prefatorily, on matters of compliance with procedural
requirements, it must be mentioned that the conduct of the
respective counsel for FESC and PPA leaves much to be desired,
to the displeasure and disappointment of this Court.
Section 2, Rule 42 of the 1997 Rules of Civil
Procedure 19 incorporates the former Circular No. 28-91 which
provided for what has come to be known as the certification
against forum shopping as an additional requisite for petitions
filed with the Supreme Court and the Court of Appeals, aside
from the other requirements contained in pertinent
provisions of the Rules of Court therefor, with the end in
view of preventing the filing of multiple complaints involving
the same issues in the Supreme Court, Court of Appeals or
different divisions thereof or any other tribunal or agency.
More particularly, the second paragraph of Section 2, Rule
42 provides:
xxx xxx xxx
The petitioner shall also submit together with the
petition a certification under oath that he has not
theretofore commenced any other action involving the
same issues in the Supreme Court,
the Court of Appeals or different divisions thereof, or any
other tribunal or agency; if there is such other action or
proceeding, he must state the status  of  the same; and if
he should thereafter learn that a similar action or
proceeding has been filed or is pending before the
Supreme  Court, the  Court  of  Appeals  or different
divisions thereof, or any other tribunal or agency, he
undertakes to promptly inform the aforesaid courts and
other tribunal or agency thereof within five (5) days
therefrom.(Emphasis ours.)
For petitions for review filed before the Supreme Court,
Section 4(e),Rule 45 specifically requires that such petition
shall contain a sworn certification against forum shopping as
provided in the last paragraph of section 2, Rule 42.
The records show that the law firm of Del Rosario and Del
Rosario through its associate, Atty. Herbert A. Tria, is the
counsel of record for FESC in both G.R. No. 130068 and G.R. No.
130150.
G.R. No. 130068, which is assigned to the Court's Second
Division, commenced with the filing by FESC through counsel on
August 22, 1997 of a verified motion for extension of time to file
its petition for thirty (30) days from August 28, 1997 or until
September 27, 1997. 20 Said motion contained the following
certification against forum shopping 21 signed by Atty. Herbert A.
Tria as affiant:
CERTIFICATION
 AGAINST FORUM SHOPPING
I/we hereby certify that I/we have not commenced
any other action or proceeding involving the same issues in
the Supreme Court, the Court of Appeals, or any other
tribunal or agency; that to the best of my own knowledge,
no such action or proceeding is pending in the
Supreme Court, the Court of Appeals, or any other
tribunal or agency; that if I/we should thereafter learn that
a similar action or proceeding has been filed or is pending
before the Supreme Court, the Court of Appeals, or any
other tribunal or agency, I/we undertake to report that fact
within five (5) days therefrom to this Honorable Court.  prLL

This motion having been granted, FESC subsequently filed its

petition on September 26, 1997, this time bearing a
"verification and certification against forum-shopping"
executed by one Teodoro P. Lopez on September 24,
1997, 22 to wit:
VERIFICATION AND CERTIFICATION
AGAINST FORUM SHOPPING
in compliance with Section 4(e),Rule 45 in relation to
Section 2, Rule 42 of the Revised Rules of Civil
Procedure
I, Teodoro P. Lopez, of legal age, after being duly
sworn, depose and state:
1. That I am the Manager, Claims
Department of Filsov Shipping Company, the local
agent of petitioner in this case.
2. That I have caused the preparation of this
Petition for Review on Certiorari.
3. That I have read the same and the allegations
therein contained are true and correct based on the
records of this case.
4. That I certify that petitioner has not commenced
any other action or proceeding involving the same issues in
the Supreme Court or Court of Appeals, or any other
 tribunal or agency, that to the best  of  my own
knowledge, no such action or proceeding is pending in the
Supreme  Court, the  Court  of  Appeals  or any other
tribunal or agency, that if I should thereafter learn that a
similar action or proceeding has been filed or is pending
before the Supreme  Court, the  Court  of  Appeals, or any
other tribunal or agency, I undertake to report the fact
within five (5) days therefrom to this Honorable  Court.
(emphasis supplied for emphasis.)
Reviewing the records, we find that the petition filed by MPA
in G.R. No. 130150 then pending with the Third Division was duly
filed on August 29, 1997 with a copy thereof furnished on the
same date by registered mail to counsel for
FESC. 23 Counsel of record for MPA, Atty. Jesus P. Amparo, in his
verification accompanying said petition dutifully revealed to
the Court that —
xxx xxx xxx
3. Petitioner has not commenced any other action or
proceeding involving the same issues in this
Honorable Court, the Court of Appeals or different
Divisions thereof, or any other tribunal or agency, but to
the best  of  his knowledge, there is an action or
proceeding pending in this Honorable  Court,
entitled  Far  Eastern  Shipping  Co.,Petitioner,  vs.  Philip
pine Ports Authority and  Court  of  Appeals  with a Motion
for Extension  of  time to file Petition For Review by
Certiorari filed sometime on August 18, 1987 .If
undersigned counsel will come to know of any other
pending action or claim filed or pending he undertakes to
report such fact within five (5) days of this
Honorable Court. 24 (Emphasis supplied.)

Inasmuch as MPA's petition in G.R. No. 130150 was posted

by registered mail on August 29, 1997 and taking judicial
notice of the average period of time it takes local mail to reach
its destination, by reasonable estimation it would be fair to
conclude that when FESC filed its petition in G.R. No. 130068 on
September 26, 1997, it would already have received a
copy of the former and would then have knowledge of the
pendency of the other petition initially filed with the First
Division. It was therefore incumbent upon FESC to inform
the Court of that fact through its certification against forum
shopping. For failure to make such disclosure, it would appear
that the aforequoted certification accompanying the petition in
G.R. No. 130068 is defective and could have been a ground for
dismissal thereof.
Even assuming that FESC had not yet received its
copy of MPA's petition at the time it filed its own petition and
executed said certification, its signatory did state "that if I should
thereafter learn that a similar action or proceeding has been filed
or is pending before the Supreme Court,
the Court of Appeals or any other tribunal or agency, I
undertake to report the fact within five (5) days therefrom to this
Honorable Court." 25 Scouring the records page by page in this
case, we find that no manifestation concordant with such
undertaking was then or at any other time thereafter ever filed by
FESC nor was there any attempt to bring such matter to the
attention of the Court. Moreover, it cannot feign non-
knowledge of the existence of such other petition because
FESC itself filed the motion for consolidation in G.R. No.
130150 of these two cases on April 24, 1998.
It is disturbing to note that counsel for FESC, the law
firm of Del Rosario and Del Rosario, displays an unprofessional
tendency of taking the Rules for granted, in this instance
exemplified by its pro forma compliance therewith but
apparently without full comprehension of and with less than
faithful commitment to its undertakings to this Court in the
interest of just, speedy and orderly
administration of court proceedings.
As between the lawyer and the courts, a lawyer owes
candor, fairness and good faith to the court. 26 He is an
officer of the court exercising a privilege which is
indispensable in the administration of justice. 27 Candidness,
especially towards the courts, is essential for the expeditious
administration of justice. Courts are entitled to expect only
complete honesty from lawyers appearing and pleading before
them. 28 Candor in all dealings is the very essence of honorable
membership in the legal profession. 29 More specifically, a lawyer
is obliged to observe the rules of procedure and not to misuse
them to defeat the ends of justice. 30 It behooves a lawyer,
therefore, to exert every effort and consider it his duty to assist in
the speedy and efficient administration of justice. 31 Being an
officer of the court, a lawyer has a responsibility in the proper
administration of justice. Like the court itself, he is an
instrument to advance its ends — the speedy, efficient, impartial,
correct and inexpensive adjudication of cases and the prompt
satisfaction of final judgments. A lawyer should not only help
attain these objectives but should likewise avoid any unethical or
improper practices that impede, obstruct or prevent their
realization, charged as he is with the primary task of assisting in
the speedy and efficient administration of justice. 32
Sad to say, the members of said law firm sorely failed to
observe their duties as responsible members of the Bar. Their
actuations are indicative of their predisposition to take lightly
the avowed duties of officers of the Court to promote respect
for law and for legal processes. 33 We cannot allow this
state of things to pass judicial muster.  LLjur

In view of the fact that at around the time these petitions

were commenced, the 1997 Rules of Civil Procedure had just
taken effect, the Court treated infractions of the new Rules
then with relative liberality in evaluating full compliance
therewith. Nevertheless, it would do well to remind all concerned
that the penal provisions of Circular No. 28-91 which remain
operative provides, inter alia:
3. Penalties.—
xxx xxx xxx
(c) The submission of a false certification under
Par. 2 of the Circular shall likewise constitute
contempt of court, without prejudice to the
 filing of criminal action against the guilty party. The
lawyer may also be subjected to disciplinary proceedings.

It must be stressed that the certification against forum

shopping ordained under the Rules is to be executed by
the  petitioner,and not by counsel. Obviously it is the petitioner,
and not always the counsel whose professional services have
been retained for a particular case, who is in the best position to
know whether he or it actually filed or caused the filing of a
petition in that case. Hence, a certification against forum
shopping by counsel is a defective certification. It is clearly
equivalent to non-compliance with the requirement under Section
2, Rule 42 in relation to Section 4, Rule 45, and constitutes a valid
cause for dismissal of the petition.
Hence, the initial certification appended to the motion for
extension of time to file petition in G.R. No. 130068 executed in
behalf of FESC by Atty. Tria is procedurally deficient. But
considering that it was a superfluity at that stage of the
proceeding, it being unnecessary to file such a certification with
a mere motion for extension, we shall disregard such error.
Besides, the certification subsequently executed by Teodoro P.
Lopez in behalf of FESC cures that defect to a certain extent,
despite the inaccuracies earlier pointed out. In the same vein, we
shall consider the verification signed in behalf of MPA by its
counsel, Atty. Amparo, in G.R. No. 130150 as substantial
compliance inasmuch as it served the purpose of the
Rules of informing the Court of the pendency of another
action or proceeding involving the same issues.
It bears stressing that procedural rules are instruments in
the speedy and efficient administration of justice. They should
be used to achieve such end and not to derail it. 34
Counsel for PPA did not make matters any better. Despite
the fact that, save for the Solicitor General at the time, the same
legal team of the Office of the Solicitor General (OSG, for short)
composed of Assistant Solicitor General Roman G. Del Rosario
and Solicitor Luis F. Simon, with the addition of Assistant
Solicitor General Pio C. Guerrero very much later in the
proceedings, represented PPA throughout the appellate
proceedings in both G.R. No. 130068 and G.R. No. 130150 and was
presumably fully acquainted with the facts and issues of the
case, it took the OSG an inordinately and almost unreasonably
long period of time to file its comment, thus unduly delaying the
resolution of these cases. It took several changes of leadership
in the OSG — from Silvestre H. Bello III to Romeo C. dela Cruz
and, finally, Ricardo P. Galvez — before the comment in
behalf of PPA was finally filed.
In G.R. No. 130068, it took eight (8) motions for
extension of time totaling 210 days, a warning that no further
extensions shall be granted, and personal service on the Solicitor
General himself of the resolution requiring the filing of such
comment before the OSG indulged the Court with the long
required comment on July 10, 1998. 35 This, despite the fact that
said office was required to file its comment way back on
November 12, 1997. 36 A closer scrutiny of the records likewise
indicates that petitioner FESC was not even furnished a
copy of said comment as required by Section 5, Rule 42. Instead,
a copy thereof was inadvertently furnished to MPA which, from
the point of view of G.R. No. 130068, was a non-party. 37 The
OSG fared slightly better in G.R. No. 130150 in that it took only six
(6) extensions, or a total of 180 days, before the comment was
finally filed. 38 And while it properly furnished petitioner MPA with
a copy of its comment, it would have been more desirable and
expedient in this case to have furnished its therein co-respondent
FESC with a copy thereof, if only as a matter of professional
courtesy. 39
This undeniably dilatory disinclination of the OSG to
seasonably file required pleadings constitutes deplorable
disservice to the tax-paying public and can only be categorized as
censurable inefficiency on the part of the government law office.
This is most certainly professionally unbecoming of the OSG.
Another thing that baffles the Court is why the OSG did not
take the initiative of filing a motion for consolidation in either
G.R. No. 130068 or G.R. No. 130150, considering its familiarity
with the background of the case and if only to make its job
easier by having to prepare and file only one comment. It could
not have been unaware of the pendency of one or the other
petition because, being counsel for respondent in both cases,
petitioner is required to furnish it with a copy of the petition
under pain of dismissal of the petition for failure otherwise. 40
Besides, in G.R. No. 130068. it prefaces its discussions thus
—
Incidentally, the Manila Pilots' Association
(MPA),one of the defendants-appellants in the case before
the respondent Court of Appeals, has taken a separate
appeal from the said decision to this Honorable Court,
which was docketed as G.R. No. 130150 and entitled
"Manila Pilots' Association, Petitioner, versus Philippine
Ports Authority
and Far Eastern Shipping Co.,Respondents. 41

Similarly, in G.R. No. 130150, it states —

Incidentally, respondent Far Eastern Shipping Co.
(FESC) had also taken an appeal from the said decision to
this Honorable Court, docketed as G.R. No. 130068,
entitled
"Far Eastern Shipping Co. vs. Court of Appeals and
Philippine Ports Authority." 42

We find here a lackadaisical attitude and complacency on

the part of the OSG in the handling of its cases and an almost
reflexive propensity to move for countless extensions, as if to
test the patience of the Court, before favoring it with the timely
submission of required pleadings.
It must be emphasized that the Court can resolve cases
only as fast as the respective parties in a case file the necessary
pleadings. The OSG, by needlessly extending the
pendency of these cases through its numerous motions for
extension, came very close to exhausting this Court's
forbearance and has regrettably fallen short of its duties as the
People's Tribune.
 The OSG is reminded that just like other members of the
Bar, the canons under the Code of Professional Responsibility
apply with equal force on lawyers in government service in the
discharge of their official tasks. 43 These ethical duties are
rendered even more exacting as to them because, as government
counsel, they have the added duty to abide by the policy of the
State to promote a high standard of ethics in public
service. 44 Furthermore, it is incumbent upon the OSG, as
part of the government bureaucracy, to perform and discharge
its duties with the highest degree of professionalism,
intelligence and skill 45 and to extend prompt, courteous and
adequate service to the public. 46
Now, on the merits of the case. After a judicious
examination of the records of this case, the pleadings filed, and
the evidence presented by the parties in the two petitions, we
find no cogent reason to reverse and set aside the questioned
decision. While not entirely a case of first impression, we shall
discuss the issues seriatim and, correlatively by way of a
judicial once-over, inasmuch as the matters raised in both
petitions beg for validation and updating of well-worn maritime
jurisprudence. Thereby, we shall write   finis to the endless
finger-pointing in this shipping mishap which has been stretched
beyond the limits of judicial tolerance.
The Port of Manila is within the Manila Pilotage District
which is under compulsory pilotage pursuant to Section 8, Article
III of Philippine Ports Authority Administrative Order No. 03-
85, 47 which provides that:
SEC. 8. Compulsory Pilotage Service.— For entering a
harbor and anchoring thereat, or passing through rivers or
straits within a pilotage district, as well as docking and
undocking at any pier/wharf, or shifting from one berth or
another, every vessel engaged in coastwise and foreign
trade shall be under compulsory pilotage. ...

In case of compulsory pilotage, the respective duties and

responsibilities of the compulsory pilot and the master have
been specified by the same regulation in this wise:
 SEC. 11. Control  of  vessels and liability for damage.
— On compulsory pilotage grounds, the Harbor Pilot
providing the service to a vessel shall be responsible for
the damage caused to a vessel or to life and property at
ports due to his negligence or fault. He can only be
absolved from liability if the accident is caused by force
majeure or natural calamities provided he has exercised
prudence and extra diligence to prevent or minimize
damage.
The Master shall retain overall command of the
vessel even on pilotage grounds whereby he can
countermand or overrule the order or command of the
Harbor Pilot on board. In such event, any damage caused
to a vessel or to life and property at ports by reason of the
fault or negligence of the Master shall be the
responsibility and liability of the registered owner of the
vessel concerned without prejudice to recourse against
said Master.
Such liability of the owner or Master of the vessel
or its pilots shall be determined by competent authority in
appropriate proceedings in the light of the facts and
circumstances of each particular case.
SEC. 32. Duties and responsibilities  of  the Pilot or
Pilots' Association.— The duties and
responsibilities of the Harbor Pilot shall be as follows:
xxx xxx xxx
f) a pilot shall be held responsible for the
direction of a vessel from the time he assumes his work
as a pilot thereof until he leaves it anchored or berthed
safely; Provided, however, that his responsibility shall
cease at the moment the Master neglects or refuses to
carry out his order.

Customs Administrative Order No. 15-65 issued twenty

years earlier likewise provided in Chapter I thereof for the
responsibilities of pilots:
Par. XXXIX. — A Pilot shall be held responsible for the
direction of a vessel from the time he assumes control
 thereof until he leaves it anchored free from shoal;
Provided, That his responsibility shall cease at the moment
the master neglects or refuses to carry out his
instructions. 
prLL

xxx xxx xxx

Par. XLIV. — Pilots shall properly and safely secure or anchor
vessels under their control when requested to do so by the
master of such vessels.
I.  G.R. No. 130068
Petitioner FESC faults the respondent court with serious
error in not holding MPA and Capt. Gavino solely responsible for
the damages caused to the pier. It avers that since the vessel
was under compulsory pilotage at the time with Capt. Gavino in
command and having exclusive control of the vessel during the
docking maneuvers, then the latter should be responsible for
damages caused to the pier. 48 It likewise holds the
appellate court in error for holding that the master of the ship,
Capt. Kabankov, did not exercise the required diligence
demanded by the circumstances. 49
We start our discussion of the successive issues bearing in
mind the evidentiary rule in American jurisprudence that there is
a presumption of fault against a moving vessel that strikes a
stationary object such as a dock or navigational aid. In admiralty,
this presumption does more than merely require the ship to go
forward and produce some evidence on the presumptive matter.
The moving vessel must show that it was without fault or that the
collision was occasioned by the fault of the stationary object or
was the result of inevitable accident. It has been held that such
vessel must exhaust every reasonable possibility which the
circumstances admit and show that in each, they did all that
reasonable care required. 50 In the absence of sufficient proof in
rebuttal, the presumption of fault attaches to a moving vessel
which collides with a fixed object and makes a   prima
facie case of fault against the vessel. 51 Logic and experience
support this presumption:
 The common sense behind the rule makes the burden
a heavy one. Such accidents simply do not occur in the
ordinary course of things unless the vessel has been
mismanaged in some way. It is not sufficient for the
respondent to produce witnesses who testify that as soon
as the danger became apparent everything possible was
done to avoid an accident. The question remains, How then
did the collision occur? The answer must be either that, in
spite of the testimony of the witnesses, what was done
was too little or too late or, if not, then the vessel was at
fault for being in a position in which an unavoidable
collision would occur. 52

The task, therefore, in these cases is to pinpoint who was

negligent the master of the ship, the harbor pilot or both.
A pilot, in maritime law, is a person duly qualified, and
licensed, to conduct a vessel into or out of ports, or in certain
waters. In a broad sense, the term "pilot" includes both (1) those
whose duty it is to guide vessels into or out of ports, or in
particular waters and (2) those entrusted with the
navigation of vessels on the high seas. 53 However, the term
"pilot" is more generally understood as a person taken on board
at a particular place for the purpose of conducting a ship
through a river, road or channel, or from a port. 54
Under English and American authorities, generally speaking,
the pilot supersedes the master for the time being in the
command and navigation of the ship, and his orders must be
obeyed in all matters connected with her navigation. He becomes
the master  pro hac vice and should give all directions as to
speed, course, stopping and reversing, anchoring, towing and the
like. And when a licensed pilot is employed in a place where
pilotage is compulsory, it is his duty to insist on having effective
control of the vessel, or to decline to act as pilot. Under certain
systems of foreign law, the pilot does not take entire
charge of the vessel, but is deemed merely the adviser of the
master, who retains command and control of the navigation even
in localities where pilotage is compulsory. 55
 It is quite common for states and localities to provide for
compulsory pilotage, and safety laws have been enacted requiring
vessels approaching their ports, with certain exceptions, to take
on board pilots duly licensed under local law. The
purpose of these laws is to create a body of seamen thoroughly
acquainted with the harbor, to pilot vessels seeking to enter or
depart, and thus protect life and property from the
dangers of navigation. 56
In line with such established doctrines, Chapter
II of Customs Administrative Order No. 15-65 prescribes the
rules for compulsory pilotage in the covered pilotage districts,
among which is the Manila Pilotage District, viz. —
PARAGRAPH I. — Pilotage for entering a harbor and
anchoring thereat, as well as docking and undocking in any
pier or shifting from one berth to another shall be
compulsory, except Government vessels and
vessels of foreign governments entitled to courtesy, and
other vessels engaged solely in river or harbor work, or in a
daily ferry service between ports which shall be exempt
from compulsory pilotage provisions of these regulations;
provided, however, that compulsory pilotage shall not
apply in pilotage districts whose optional pilotage is
allowed under these regulations.

Pursuant thereto, Capt. Gavino was assigned to pilot MV

Pavlodar into Berth 4 of the Manila International Port. Upon
assuming such office as compulsory pilot, Capt. Gavino is held to
the universally accepted high standards of care and diligence
required of a pilot, whereby he assumes to have skill and
knowledge in respect to navigation in the particular waters over
which his license extends superior to and more to be trusted than
that of the master. 57 A pilot should have a thorough
knowledge of general and local regulations and physical
conditions affecting the vessel in his charge and the waters for
which he is licensed, such as a particular harbor or river. He is
not held to the highest possible degree of skill and care, but
must have and exercise the ordinary skill and care demanded by
the circumstances, and usually shown by an expert in his
profession. Under extraordinary circumstances, a pilot must
exercise extraordinary care. 58
In Atlee vs.The Northwestern Union Packet Company, 59 Mr.
Justice Miller spelled out in great detail the duties of a pilot:
...(T)he pilot of a river steamer, like the harbor pilot,
is selected for his personal knowledge of the topography
through which he steers his vessel. In the long
course of a thousand miles in one of these rivers, he
must be familiar with the appearance of the shore on
each side of the river as he goes along. Its banks, towns,
its landings, its houses and trees, are all landmarks by
which he steers his vessel. The compass is of little use to
him. He must know where the navigable channel is, in its
relation to all these external objects, especially in the
night. He must also be familiar with all dangers that are
permanently located in the course of the river, as sand-
bars, snags, sunken rocks or trees or abandoned vessels or
barges. All this he must know and remember and avoid. To
do this, he must be constantly informed of the changes in
the current of the river, of the sand-bars newly
made, of logs or snags, or other objects newly presented,
against which his vessel might be injured.
xxx xxx xxx
It may be said that this is exacting a very high
order of ability in a pilot. But when we consider the
value of the lives and property committed to their control,
for in this they are absolute masters, the high
compensation they receive, the care which Congress has
taken to secure by rigid and frequent examinations and
renewal of licenses, this very class of skill, we do not
think we fix the standard too high.

Tested thereby, we affirm respondent court's finding that

Capt. Gavino failed to measure up to such strict standard of care
and diligence required of pilots in the performance of their
duties. Witness this testimony of Capt. Gavino:
Court:
 You have testified before that the reason why the vessel
bumped the pier was because the anchor was not
released immediately or as soon as you have given
the order. Do you remember having stated that?
A Yes, your Honor.
Q And you gave this order to the captain of the vessel?
A Yes, your Honor.
Q By that testimony, you are leading the Court to
understand that if that anchor was released
immediately at the time you gave the order, the
incident would not have happened. Is that correct?
A Yes, sir, but actually it was only a presumption on my
part because there was a commotion between the
officers who are in charge of the dropping of the
anchor and the captain. I could not understand their
language, it was in Russian, so I presumed the anchor
was not dropped on time.
Q So, you are not sure whether it was really dropped on
time or not?
A I am not sure, your Honor.
xxx xxx xxx
Q You are not even sure what could have caused the
incident. What factor could have caused the incident?
A Well, in this case now, because either the anchor was
not dropped on time or the anchor did not hold, that
was the cause of the incident, your Honor. 60

It is disconcertingly riddled with too much incertitude and

manifests a seeming indifference for the possibly injurious
consequences his commands as pilot may have. Prudence
required that he, as pilot, should have made sure that his
directions were promptly and strictly followed. As correctly noted
by the trial court —
Moreover, assuming that he did indeed give the
command to drop the anchor on time, as pilot he should
 have seen to it that the order was carried out, and he could
have done this in a number of ways, one of which was to
inspect the bow of the vessel where the anchor
mechanism was installed. Of course, Captain Gavino
makes reference to a commotion among the crew
members which supposedly caused the delay in the
execution of the command. This account was reflected in
the pilot's report prepared four hours later, but Capt.
Kavankov, while not admitting whether or not such a
commotion occurred, maintained that the command to
drop anchor was followed "immediately and precisely."
Hence, the Court cannot give much weight or
consideration to this portion of Gavino's testimony." 61

An act may be negligent if it is done without the

competence that a reasonable person in the position of the actor
would recognize as necessary to prevent it from creating an
unreasonable risk of harm to another. 62 Those who undertake
any work calling for special skills are required not only to
exercise reasonable care in what they do but also possess a
standard minimum of special knowledge and ability. 63
Every man who offers his services to another, and is
employed, assumes to exercise in the employment such skills he
possesses, with a reasonable degree of diligence. In all these
employments where peculiar skill is requisite, if one offers his
services he is understood as holding himself out to the public as
possessing the degree of skill commonly possessed by others in
the same employment, and if his pretensions are unfounded he
commits a species of fraud on every man who employs him in
reliance on his public profession. 64  cdphil

Furthermore, there is an obligation on all persons to take the

care which, under ordinary circumstances of the case, a
reasonable and prudent man would take, and the
omission of that care constitutes negligence. 65 Generally, the
degree of care required is graduated according to the danger a
person or property attendant upon the activity which the actor
pursues or the instrumentality which he uses. The greater the
danger the greater the degree of care required. What is ordinary
under extraordinary of conditions is dictated by those
conditions; extraordinary risk demands extraordinary care.
Similarly, the more imminent the danger, the higher the
degree of care. 66
We give our imprimatur to the bases for the
conclusion of the Court of Appeals that Capt. Gavino was
indeed negligent in the performance of his duties:
xxx xxx xxx
...As can be gleaned from the logbook, Gavino
ordered the left anchor and two (2) shackles dropped at
8:30 o'clock in the morning. He ordered the engines of the
vessel stopped at 8:31 o'clock. By then, Gavino must have
realized that the anchor did not hit a hard object and was
not clawed so as to reduce the momentum of the vessel.
In point of fact, the vessel continued travelling towards
the pier at the same speed. Gavino failed to react. At 8:32
o'clock, the two (2) tugboats began to push the stern
part of the vessel from the port side but the
momentum of the vessel was not contained. Still, Gavino
did not react. He did not even order the other anchor and
two (2) more shackles dropped to arrest the
momentum of the vessel. Neither did he order full-astern.
It was only at 8:34 o'clock, or four (4) minutes,after the
anchor was dropped that Gavino reacted. But his reaction
was even (haphazard) because instead of arresting fully
the momentum of the vessel with the help of the
tugboats, Gavino ordered merely "half-astern".It took
Gavino another minute to order a "full-astern".By then, it
was too late. The vessel's momentum could no longer be
arrested and, barely a minute thereafter, the bow of the
vessel hit the apron of the pier. Patently, Gavino
miscalculated. He failed to react and undertake adequate
measures to arrest fully the momentum of the vessel after
the anchor failed to claw to the seabed. When he reacted,
the same was even (haphazard).Gavino failed to reckon the
bulk of the vessel, its size and its cargo. He erroneously
believed that only one (1) anchor would suffice and even
when the anchor failed to claw into the seabed or against a
 hard object in the seabed, Gavino failed to order the other
anchor dropped immediately. His claim that the anchor
was dropped when the vessel was only 1,000 feet from the
pier is but a belated attempt to extricate himself from the
quagmire of his own insouciance and negligence. In sum,
then, Appellants' claim that the incident was caused by
"force majeure" is barren of factual basis.
xxx xxx xxx
The harbor pilots are especially trained for this job. In
the Philippines, one may not be a harbor pilot unless he
passed the required examination and training conducted
then by the Bureau of Custom, under
Customs Administrative Order No. 15-65, now under the
Philippine Ports Authority under PPA Administrative Order
63-85. Paragraph XXXIX of the Customs Administrative
Order No. 15-65 provides that "the pilot shall be held
responsible for the direction of the vessel from the time
he assumes control thereof, until he leaves it anchored
free from shoal: Provided, that his responsibility shall
cease at the moment the master neglects or refuse(s) to
carry out his instructions." The overall direction regarding
the procedure for docking and undocking the vessel
emanates from the harbor pilot. In the present recourse,
Gavino failed to live up to his responsibilities and exercise
reasonable care or that degree of care required by the
exigencies of the occasion. Failure on his part to exercise
the degree of care demanded by the circumstances is
negligence (Reese  versus  Philadelphia & RR Co.  239 US
463, 60 L ed.  384, 57 Am Jur.  2d page 418). 67
This affirms the findings of the trial court regarding Capt.
Gavino's negligence:
This discussion should not however, divert
the court from the fact that negligence in maneuvering
the vessel must be attributed to Capt. Senen Gavino. He
was an experienced pilot and by this time should have long
familiarized himself with the depth of the port and the
distance he could keep between the vessel and port in
order to berth safely. 68
 The negligence on the part of Capt. Gavino is evident; but
Capt. Kabankov is no less responsible for the collision. His
unconcerned lethargy as master of the ship in the
face of troublous exigence constitutes negligence.
While it is indubitable that in exercising his functions a pilot
is in sole command of the ship 69 and supersedes the master for
the time being in the command and navigation of a ship and that
he becomes master  pro hac vice of a vessel piloted by
him, 70 there is overwhelming authority to the effect that the
master does not surrender his vessel to the pilot and the pilot is
not the master. The master is still in command of the vessel
notwithstanding the presence of a pilot. There are occasions
when the master may and should interfere and even displace the
pilot, as when the pilot is obviously incompetent or intoxicated
and the circumstances may require the master to displace a
compulsory pilot because of incompetency or physical
incapacity. If, however, the master does not observe that a
compulsory pilot is incompetent or physically incapacitated, the
master is justified in relying on the pilot, but not blindly. 71 
cdphil

The master is not wholly absolved from his duties while a

pilot is on board his vessel, and may advise with or offer
suggestions to him. He is still in command of the vessel, except
so far as her navigation is concerned, and must cause the
ordinary work of the vessel to be properly carried on and the
usual precaution taken. Thus, in particular, he is bound to see
that there is sufficient watch on deck, and that the men are
attentive to their duties, also that engines are stopped, towlines
cast off, and the anchors clear and ready to go at the pilot's
order. 72
A perusal of Capt. Kabankov' s testimony makes it apparent
that he was remiss in the discharge of his duties as
master of the ship leaving the entire docking procedure up to the
pilot, instead of maintaining watchful vigilance over this risky
maneuver:
Q Will you please tell us whether you have the right to
intervene in docking of your ship in the harbor?
A No sir, I have no right to intervene in time of docking,
only in case there is imminent danger to the vessel
and to the pier.
Q Did you ever intervene during the time that your ship
was being docked by Capt. Gavino'?
A No sir, I did not intervene at the time when the pilot was
docking my ship.
Q Up to the time it was actually docked at the pier, is that
correct?
A No sir, I did not intervene up to the very moment when
the vessel was docked.
xxx xxx xxx
Atty. Del Rosario (to the witness)
Q Mr. Witness, what happened, if any, or was there
anything unusual that happened during the docking?
A Yes sir, our ship touched the pier and the pier was
damaged .
Court (to the witness)
Q When you said touched the pier, are you leading
the court to understand that your ship bumped the
pier'?
A I believe that my vessel only touched the pier but the
impact was very weak.
Q Do you know whether the pier was damaged as a
result of that slight or weak impact?
A Yes sir, after the pier was damaged.
xxx xxx xxx
Q Being most concerned with the safety of your vessel, in
the maneuvering of your vessel to the port, did you
observe anything irregular in the maneuvering by
Capt. Gavino at the time he was trying to cause the
vessel to be docked at the pier?
A You mean the action of Capt. Gavino or his condition?
Court:
Q Not the actuation that conform to the safety
maneuver of the ship to the harbor?
A No sir, it was a usual docking.
Q By that statement of yours, you are leading
the court to understand that there was nothing
irregular in the docking of the ship?
A Yes sir, during the initial period of the docking. there
was nothing unusual that happened.
Q What about in the last portion of the docking of the
ship, was there anything unusual or abnormal that
happened?
A None Your Honor, I believe that Capt. Gavino thought
that the anchor could keep or hold the vessel.
Q You want us to understand, Mr. Witness, that the
dropping of the anchor of the vessel was not
timely'?
A I don't know the depth of this port but I think, if the
anchor was dropped earlier and with more shackles,
there could not have been an incident.
Q So you could not precisely tell the court that the
dropping of the anchor was timely because you are
not well aware of the seabed, is that correct?
A Yes sir, that is right.
xxx xxx xxx
Q Alright, Capt. Kavankov, did you come to know later
whether the anchor held its ground so much so that
the vessel could not travel?
A It is difficult for me to say definitely. I believe that the
anchor did not hold the ship.
Q You mean you don't know whether the anchor blades
stuck to the ground to stop the ship from further
moving ?
A Yes sir, it is possible.
Q What is possible'?
A I think, the 2 shackles were not enough to hold the
vessel.
Q Did you know that the 2 shackles were dropped?
A Yes sir, I knew that.
Q If you knew that the shackles were not enough to hold
the ship, did you not make any protest to the pilot?
A No sir, after the incident, that was my assumption.
Q Did you come to know later whether that presumption is
correct?
A I still don't know the ground in the harbor or the depths.
Q So from the beginning, you were not competent whether
the 2 shackles were also dropped to hold the ship?
A No sir, at the beginning, I did not doubt it because I
believe Capt. Gavino to be an experienced pilot and
he should be more aware as to the depths of the
harbor and the ground and I was confident in his
actions.
xxx xxx xxx
Solicitor Abad (to the witness)
Q Now, you were standing with the pilot on the
bridge of the vessel before the incident happened,
were you not?
A Yes sir, all the time, I was standing with the pilot.
Q And so whatever the pilot saw, you could also see from
that point of view?
A That is right.
Q Whatever the pilot can read from the panel of the
bridge, you also could read, is that correct'?
A What is the meaning of panel?
Q All indications necessary for men on the bridge to be
informed of the movements of the ship?
A That is right.
Q And whatever sound the captain ...Capt. Gavino would
hear from the bridge, you could also hear?
A That is right.
Q Now, you said that when the command to lower the
anchor was given, it was obeyed, is that right?
A This command was executed by the third mate and
boatswain.
Court (to the witness)
Q Mr. Witness, earlier in today's hearing, you said that you
did not intervene with the duties of the pilot and
that, in your opinion, you can only intervene if the
ship is placed in imminent danger, is that correct?
A That is right, I did say that.
Q In your observation before the incident actually
happened, did you observe whether or not the ship,
before the actual incident, the ship was placed in
imminent danger?
A No sir, I did not observe.
Q By that answer, are you leading the court to
understand that because you did not intervene and
because you believed that it was your duty to
intervene when the vessel is placed in imminent
danger to which you did not observe any imminent
danger thereof, you have not intervened in any
manner to the command of the pilot?
A That is right, sir.
xxx xxx xxx
Q Assuming that you disagreed with the pilot regarding
the step being taken by the pilot in maneuvering the
vessel, whose command will prevail, in
case of imminent danger to the vessel?
A I did not consider the situation as having an imminent
danger. I believed that the vessel will dock alongside
the pier.
Q You want us to understand that you did not see an
imminent danger to your ship, is that what you mean?
A Yes sir, up to the very last moment, I believed that there
was no imminent danger.
Q Because of that, did you ever intervene in the
command of the pilot?
A Yes sir, I did not intervene because I believed that the
command of the pilot to be correct.
Solicitor Abad (to the witness)
Q As a captain of M/V Pavlodar, you consider docking
maneuvers a serious matter, is it not?
A Yes sir, that is right.  prcd

Q Since it affects not only the safety of the port or pier,

but also the safety of the vessel and the cargo, is it
not?
A That is right.
Q So that, I assume that you were watching Capt. Gavino
very closely at the time he was making his
commands ?
A I was close to him, I was hearing his command and
being executed.
Q And that you were also alert for any possible mistakes
he might commit in the maneuvering of the vessel?
A Yes sir, that is right.
Q But at no time during the maneuver did you issue order
contrary to the orders Capt. Gavino made?
A No sir.
Q So that you were in full accord with all of Capt. Gavino'
s orders?
A Yes sir.
Q Because, otherwise, you would have issued order that
would supersede his own order?
A In that case, I should take him away from his command
or remove the command from him.
Court (to the witness)
Q You were in full accord with the steps being taken by
Capt. Gavino because you relied on his knowledge, on
his familiarity of the seabed and shoals and other
surroundings or conditions under the sea, is that
correct?
A Yes sir, that is right.
xxx xxx xxx
Solicitor Abad (to the witness)
Q And so after the anchors were ordered dropped and they
did not take hold of the seabed, you were alerted
that there was danger already on hand?
A No sir, there was no imminent danger to the vessel.
Q Do you mean to tell us that even if the anchor was
supposed to take hold of the bottom and it did not,
there was no danger to the ship?
A Yes sir, because the anchor dragged on the ground
later .
Q And after a few moments when the anchor should have
taken hold the seabed but not done (sic),as you
expected, you already were alerted that there was
danger to the ship, is that correct?
A Yes sir, I was alerted but there was no danger.
Q And you were alerted that somebody was wrong?
A Yes sir, I was alerted.
Q And this alert you assumed was the ordinary alertness
that you have for normal docking?
 A Yes sir, I mean that it was usual condition of any man
in time of docking to be alert.
Q And that is the same alertness when the anchor did not
hold onto the ground, is that correct?
A Yes sir, me and Capt. Gavino (thought) that the anchor
will hold the ground.
Q Since, as you said that you agreed all the while with the
orders of Capt. Gavino, you also therefore agreed
with him in his failure to take necessary precaution
against the eventuality that the anchor will not hold
as expected?
Atty. Del Rosario:
May I ask that the question ...
Solicitor Abad:
Never mind, I will reform the question.
xxx xxx xxx
Solicitor Abad (to the witness)
Q Is it not a fact that the vessel bumped the pier?
A That is right, it bumped the pier.
Q For the main reason that the anchor of the vessel did
not hold the ground as expected?
A Yes sir, that is my opinion." 73

Further, on redirect examination, Capt. Kabankov fortified

his apathetic assessment of the situation:
Q Now, after the anchor was dropped, was there any point
in time that you felt that the vessel was in imminent
danger.
A No, at that time, the vessel was not in imminent danger,
sir." 74

This cavalier appraisal of the event by Capt. Kabankov is

disturbingly antipodal to Capt. Gavino's anxious
assessment of the situation:
Q When a pilot is on board a vessel, it is the pilot's
command which should be followed at that moment
until the vessel is, or goes to port or reaches port?
A Yes, your Honor, but it does not take away from the
Captain his prerogative to countermand the pilot.
Q In what way'?
A In any case, which he thinks the pilot is not
maneuvering correctly, the Captain always has the
prerogative to countermand the pilot's order.
Q But insofar as competence, efficiency and functional
knowledge of the seabed which are vital or decisive
in the safety (sic) bringing of a vessel to the port, he
is not competent?
A Yes, your Honor. That is why they hire a pilot in an
advisory capacity, but still, the safety of the vessel
rest(s) upon the Captain, the Master of the vessel.
Q In this case, there was not a disagreement between you
and the Captain of the vessel in the bringing of the
vessel to port?
A No, your Honor.
Court:
May proceed.
Atty. Catris:
In fact, the Master of the vessel testified here that he was
all along in conformity with the orders you gave to
him, and, as matter of fact, as he said, he obeyed all
your orders. Can you tell, if in the course of giving
such normal orders for the saf(e) docking of the MV
Pavlodar, do you remember of any instance that the
Master of the vessel did not obey your command for
the safety docking of the MV Pavlodar?
Atty. del Rosario:
Already answered, he already said yes sir.
Court:
 Yes, he has just answered yes sir to the Court that there
was no disagreement insofar as the bringing of the
vessel safely to the port.
Atty. Catris:
But in this instance of docking of the MV Pavlodar, do
you remember of a time during the course of the
docking that the MV Pavlodar was in imminent
danger of bumping the pier?
A When we were about more than one thousand meters
from the pier, I think, the anchor was not holding, so I
immediately ordered to push the bow at a fourth
quarter, at the back of the vessel in order to swing
the bow away from the pier and at the same time, I
ordered for a full astern of the engine." 75

These conflicting reactions can only imply, at the very least,

unmindful disregard or, worse, neglectful
relinquishment of duty by the shipmaster, tantamount to
negligence.
The findings of the trial court on this aspect is
noteworthy:
For, while the pilot Gavino may indeed have been
charged with the task of docking the vessel in the
berthing space, it is undisputed that the master of the
vessel had the corresponding duty to countermand
any of the orders made by the pilot, and even maneuver
the vessel himself, in case of imminent danger to the
vessel and the port.
In fact, in his testimony, Capt. Kavankov admitted
that all throughout the man(eu)vering procedures he did
not notice anything was going wrong, and even observed
that the order given to drop the anchor was done at the
proper time. He even ventured the opinion that the
accident occurred because the anchor failed to take hold
but that this did not alarm him because there was still time
to drop a second anchor.
 Under normal circumstances, the abovementioned
facts would have caused the master of a vessel to take
charge of the situation and see to the
man(eu)vering of the vessel himself. Instead, Capt.
Kavankov chose to rely blindly upon his pilot, who by this
time was proven ill-equipped to cope with the situation.
xxx xxx xxx
It is apparent that Gavino was negligent
but Far Eastern's employee Capt. Kavankov was no less
responsible for as master of the vessel he stood by the
pilot during the man(eu)vering procedures and was privy to
every move the latter made, as well as the vessel's
response to each of the commands. His choice to rely
blindly upon the pilot's skills, to the point that despite
being appraised of a notice of alert he continued to
relinquish control of the vessel to Gavino, shows
indubitably that he was not performing his duties with the
diligence required of him and therefore may be charged
with negligence along with defendant Gavino." 76  prcd

As correctly affirmed by the Court of Appeals —

We are in full accord with the findings and
disquisitions of the Court a quo.
In the present recourse, Captain Viktor Kavankov had
been a mariner for thirty-two years before the incident.
When Gavino was (in) the command of the vessel,
Kavankov was beside Gavino, relaying the commands or
orders of Gavino to the crew members-officers of the
vessel concerned. He was thus fully aware of the docking
maneuvers and procedure Gavino undertook to dock the
vessel. Irrefragably, Kavankov was fully aware of the bulk
and size of the vessel and its cargo as well as the
weight of the vessel. Kavankov categorically admitted
that, when the anchor and two (2) shackles were dropped
to the sea floor, the claws of the anchor did not hitch on
to any hard object in the seabed. The momentum of the
vessel was not arrested. The use of the two (2) tugboats
was insufficient. The momentum of the vessel, although a
little bit arrested, continued (sic) the vessel going
 straightforward with its bow towards the port ( Exhibit "A-
1").There was thus a need for the vessel to move "full-
astern" and to drop the other anchor with another shackle
or two (2),for the vessel to avoid hitting the pier. Kavankov
refused to act even as Gavino failed to act. Even as
Gavino gave mere "half-astern" order, Kavankov supinely
stood by. The vessel was already about twenty (20) meters
away from the pier when Gavino gave the 'full-astern"
order. Even then, Kavankov did nothing to prevent the
vessel from hitting the pier simply because he relied on the
competence and plan of Gavino.
While the "full-astern" maneuver momentarily
arrested the momentum of the vessel, it was, by then, too
late. All along, Kavankov stood supinely beside Gavino,
doing nothing but relay the commands of Gavino.
Inscrutably, then, Kavankov was negligent.
xxx xxx xxx
The stark incompetence of Kavankov is competent
evidence to prove the unseaworthiness of the vessel. It
has been held that the incompetence of the navigator, the
master of the vessel or its crew makes the vessel
unseaworthy (Tug Ocean Prince  versus  United
States  of  America,  584 F.2nd, page 1151).Hence, the
Appellant FESC is likewise liable for the damage sustained
by the Appellee." 77

We find strong and well-reasoned support in time-tested

American maritime jurisprudence, on which much of our laws
and jurisprudence on the matter are based, for the
conclusions of the Court of Appeals adjudging both Capt.
Gavino and Capt. Kabankov negligent.
As early as 1869, the U.S. Supreme Court declared, through
Mr. Justice Swayne, in The Steamship China vs.Walsh, 78 that it
is the duty of the master to interfere in cases of the pilot's
intoxication or manifest incapacity, in cases of danger which he
does not foresee, and in all cases of great necessity. The master
has the same power to displace the pilot that he has to remove
any subordinate officer of the vessel, at his discretion.
 In 1895, the U.S. Supreme Court, this time through Mr.
Justice Brown, emphatically ruled that:
Nor are we satisfied with the conduct  of  the master
in leaving the pilot in sole charge  of  the vessel.While the
pilot doubtless supersedes the master for the time being in
the command and navigation of the ship, and his orders
must be obeyed in all matters connected with her
navigation, the master is not wholly absolved from his
duties while the pilot is on board, and may advise with him,
and even displace him in case he is intoxicated or
manifestly incompetent. He is still in command of the
vessel, except so far as her navigation is concerned, and
bound to see that there is a sufficient watch on deck, and
that the men are attentive to their duties.
...(N)otwithstanding the pilot has charge, it is the
duty  of  the master to prevent accident, and not to
abandon the vessel entirely to the pilot ;but that there are
certain duties he has to discharge (notwithstanding there
is a pilot on board) for the benefit of the owners. ...that in
well conducted ships the master does not regard the
presence  of  a duly licensed pilot in compulsory pilot
waters as freeing him from every obligation to attend to
the safety  of  the vessel;but that, while the master sees
that his officers and crew duly attend to the pilot's
orders, he himself is bound to keep a vigilant eye on the
navigation  of  the vessel, and, when exceptional
circumstances exist, not only to urge upon the pilot to use
every precaution, but to insist upon such being
taken." 79 (Italics for emphasis.)
In Jure vs.United Fruit Co., 80 which, like the present
petitions, involved compulsory pilotage, with a similar scenario
where at and prior to the time of injury, the vessel was in the
charge of a pilot with the master on the bridge of the vessel
beside said pilot, the court therein ruled:
The authority of the master of a vessel is not in
complete abeyance while a pilot, who is required by law to
be accepted, is in discharge of his functions. ...It is the
duty of the master to interfere in cases of the pilot's
 intoxication or manifest incapacity, in cases of danger
which he does not foresee, and in all cases of great
necessity. The master has the same power to displace the
pilot that he has to remove any subordinate officer of the
vessel. He may exercise it, or not, according to his
discretion. There was evidence to support findings that
plaintiff's injury was due to the negligent operation of the
Atenas, and that the master of that vessel was negligent
in failing to take action to avoid endangering a vessel
situated as the City of Canton was and persons or
property thereon.
A phase of the evidence furnished support for the
inferences ...that he negligently failed to suggest to the
pilot the danger which was disclosed, and
means of avoiding such danger; and that the master's
negligence in failing to give timely admonition to the pilot
proximately contributed to the injury complained of. We
are of opinion that the evidence mentioned tended to
prove conduct of the pilot, known to the master, giving
rise to a case of danger or great necessity, calling for the
intervention of the master. A master  of  a vessel is not
without fault in acquiescing in conduct  of  a pilot which
involves apparent and avoidable danger,whether such
danger is to the vessel upon which the pilot is, or to
another vessel, or persons or property thereon or on shore.
(Emphasis ours.)

Still in another case involving a nearly identical setting, the

captain of a vessel alongside the compulsory pilot was deemed
to be negligent, since, in the words of the court, "he was in a
position to exercise his superior authority if he had deemed the
speed excessive on the occasion in question. I think it
was clearly negligent of  him not to have recognized the
danger to any craft moored at Gravell Dock and that he should
have directed the pilot to reduce his speed as required by the
local governmental regulations. His failure amounted to
negligence and renders the respondent liable . 81 (Stress supplied.)
Though a compulsory pilot might be regarded as an independent
contractor, he is at all times subject to the ultimate
control of the ship's master 82
In sum, where a compulsory pilot is in charge of a ship, the
master being required to permit him to navigate it, if the master
observes that the pilot is incompetent or physically incapable,
then it is the duty of the master to refuse to permit the pilot
to act. But if no such reasons are present, then the master is
justified in relying upon the pilot, but not blindly .Under the
circumstances of this case, if a situation arose where the
master, exercising that reasonable vigilance which the
master of a ship should exercise, observed, or should have
observed, that the pilot was so navigating the vessel that she was
going, or was likely to go, into danger, and there was in the
exercise of reasonable care and vigilance an opportunity for the
master to intervene so as to save the ship from danger, the
master should have acted accordingly. 83 The master  of a
vessel must exercise a degree  of vigilance commensurate with
the circumstances. 84
Inasmuch as the matter of negligence is a
question of fact, 85 we defer to the findings of the trial court,
especially as this is affirmed by the Court of Appeals. 86 But
even beyond that, our own evaluation is that Capt. Kabankov's
shared liability is due mainly to the fact that he failed
to act when the perilous situation should have spurred him into
quick and decisive action as master of the ship. In the
face of imminent or actual danger, he did not have to wait for
the happenstance to occur before countermanding or overruling
the pilot. By his own admission, Capt. Kabankov concurred with
Capt. Gavino's decisions, and this is precisely the reason why he
decided not to countermand any of the latter' s orders. Inasmuch
as both lower courts found Capt. Gavino negligent, by expressing
full agreement therewith Capt. Kabankov was just as negligent as
Capt. Gavino.
In general, a pilot is personally liable for damages caused by
his own negligence or default to the owners of the vessel, and to
third parties for damages sustained in a collision. Such
negligence of the pilot in the performance of duty constitutes a
maritime tort. 87 At common law, a shipowner is not liable for
injuries inflicted exclusively by the negligence of a pilot
accepted by a vessel compulsorily. 88 The exemption from
liability for such negligence shall apply if the pilot is actually in
charge and solely in fault. Since, a pilot is responsible only for
his own personal negligence, he cannot be held accountable for
damages proximately caused by the default of others, 89 or, if
there be anything which concurred with the fault of the pilot in
producing the accident, the vessel master and owners are liable.
Since the colliding vessel is prima facie responsible, the
burden of proof is upon the party claiming benefit of the
exemption from liability. It must be shown affirmatively that the
pilot was at fault, and that there was no fault on the part of the
officers or crew, which might have been conducive to the
damage. The fact that the law compelled the master to take the
pilot does not exonerate the vessel from liability. The parties who
suffer are entitled to have their remedy against the vessel that
occasioned the damage, and are not under necessity to look to
the pilot from whom redress is not always had for compensation.
The owners of the vessel are responsible to the injured party for
the acts of the pilot, and they must be left to recover the amount
as well as they can against him. It cannot be maintained that the
circumstance of having a pilot on board, and acting in
conformity to his directions operate as a
discharge of responsibility of the owners. 90 Except insofar as
their liability is limited or exempted by statute, the vessel or her
owner are liable for all damages caused by the negligence or
other wrongs of the owners or those in charge of the vessel.
Where the pilot of a vessel is not a compulsory one in the sense
that the owner or master of the vessel are bound to accept him,
but is employed voluntarily, the owners of the vessel are, all the
more, liable for his negligent act. 91
In the United States, the owners of a vessel are not
personally liable for the negligent acts of a compulsory pilot, but
by admiralty law, the fault or negligence of a compulsory pilot is
imputable to the vessel and it may be held liable therefor in
rem.Where, however, by the provisions of the statute the pilot is
compulsory only in the sense that his fee must be paid, and is not
in compulsory charge of the vessel, there is no exemption from
liability. Even though the pilot is compulsory, if his negligence
was not the sole cause  of the injury, but the negligence  of the
master or crew contributed thereto, the owners are liable . 92 But
the liability of the ship in rem does not release the pilot from
the consequences of his own negligence. 93 The rationale for
this rule is that the master is not entirely
absolved of responsibility with respect to navigation when a
compulsory pilot is in charge. 94
By way of validation and in light of the aforecited
guidepost rulings in American maritime cases, we declare that
our rulings during the early years of this century
in City  of Manila vs.Gambe, 95 China Navigation
Co.,Ltd.vs.Vidal, 96 and Yap Tico & Co.vs.Anderson,et al. 97 have
withstood the proverbial test of time and remain good and
relevant case law to this day.
City of  Manila stands for the doctrine that the pilot who
was in command and complete control of a vessel, and not the
owners, must be held responsible for an accident which was
solely the result of the mistake of the pilot in not giving proper
orders, and which did not result from the failure of the owners to
equip the vessel with the most modern and improved machinery.
In China Navigation Co.,the pilot deviated from the ordinary and
safe course, without heeding the warnings of the ship captain. It
was this careless deviation that caused the vessel to collide with
a pinnacle rock which, though uncharted, was known to pilots
and local navigators. Obviously, the captain was blameless. It
was the negligence of the pilot alone which was the proximate
cause of the collision. The Court could not but then rule that —
The pilot in the case at bar having deviated from the
usual and ordinary course followed by navigators in
passing through the strait in question, without a
substantial reason, was guilty of negligence, and that
 negligence having been the proximate cause of the
damages, he is liable for such damages as usually and
naturally flow therefrom. ...
 llcd

...(T)he defendant should have known of the

existence and location of the rock upon which the vessel
struck while under his control and management....

Consistent with the pronouncements in these two earlier

cases, but on a slightly different tack, the Court in Yap Tico &
Co.exonerated the pilot from liability for the accident where the
orders of the pilot in the handling of the ship were disregarded
by the officers and crew of the ship. According to the Court, a
pilot is "...responsible for a full knowledge of the channel and the
navigation only so far as he can accomplish it through the
officers and crew of the ship, and I don't see that he can be held
responsible for damage when the evidence shows, as it does in
this case, that the officers and crew of the ship failed to obey
his orders." Nonetheless, it is possible for a compulsory pilot and
the master of the vessel to be concurrently negligent and thus
share the blame for the resulting damage as joint
tortfeasors, 98 but only under the circumstances obtaining in and
demonstrated by the instant petitions.
It may be said, as a general rule, that negligence in order to
render a person liable need not be the sole cause of an injury. It
is sufficient that his negligence, concurring with one or more
efficient causes other than plaintiff's, is the proximate
cause of the injury. Accordingly, where several causes combine
to produce injuries, person is not relieved from liability because
he is responsible for only one of them, it being sufficient that the
negligence of the person charged with injury is an efficient
cause without which the injury would not have resulted to as
great an extent, and that such cause is not attributable to the
person injured. It is no defense to one of the concurrent
tortfeasors that the injury would not have resulted from his
negligence alone, without the negligence or wrongful acts of the
other concurrent tortfeasor. 99 Where several causes producing
an injury are concurrent and each is an efficient cause without
which the injury would not have happened, the injury may be
attributed to all or any of the causes and recovery may be had
against any or all of the responsible persons although under the
circumstances of the case, it may appear that one of them was
more culpable, and that the duty owed by them to the injured
person was not the same. No actor's negligence ceases to be a
proximate cause merely because it does not exceed the
negligence of other actors. Each wrongdoer is responsible for
the entire result and is liable as though his acts were the sole
cause of the injury. 100
There is no contribution between joint tortfeasors whose
liability is solidary since both of them are liable for the total
damage. Where the concurrent or successive negligent acts or
omissions of two or more persons, although acting
independently, are in combination the direct and proximate
cause of a single injury to a third person, it is impossible to
determine in what proportion each contributed to the injury and
either of them is responsible for the whole injury. Where their
concurring negligence resulted in injury or damage to a third
party, they become joint tortfeasors and are solidarily liable for
the resulting damage under Article 2194 101 of the Civil
Code.102
As for the amount of damages awarded by the trial court,
we find the same to be reasonable. The testimony of Mr. Pascual
Barral, witness for PPA, on cross and redirect examination,
appears to be grounded on practical considerations:
Q So that the cost of the two additional piles as well as
the (two) square meters is already included in this
P1,300,999.77.
A Yes sir, everything. It is (the) final cost already.
Q For the eight piles.
A Including the reduced areas and other reductions.
Q (A)nd the two square meters.
A Yes sir.
Q In other words, this P1,300,999.77 does not represent
only for the six piles that was damaged as well as the
corresponding two piles.
A The area was corresponding, was increased by almost
two in the actual payment. That was why the
contract was decreased, the real amount was
P1,124,627.40 and the final one is P1,300,999.77.
Q Yes, but that P1,300,999.77 included the additional two
new posts.
A It was increased.
Q Why was it increased?
A The original was 48 and the actual was 46.
Q Now, the damage was somewhere in 1980. It took place
in 1980 and you started the repair and reconstruction
in 1982, that took almost two years?
A Yes sir.
Q May it not happen that by natural factors, the existing
damage in 1980 was aggravated for the 2 year period
that the damage portion was not repaired?
A I don't think so because that area was at once marked
and no vehicles can park, it was closed.
Q Even if or even natural elements cannot affect the
damage ?
A Cannot, sir.
xxx xxx xxx
Q You said in the cross-examination that there were six
piles damaged by the accident, but that in the
reconstruction of the pier, PPA drove and
constructed 8 piles. Will you explain to us why there
was change in the number of piles from the original
number?
A In piers where the piles are withdrawn or pulled out, you
cannot re-drive or drive piles at the same point. You
have to redesign the driving of the piles. We cannot
 drive the piles at the same point where the piles are
broken or damaged or pulled out. We have to
redesign, and you will note that in the reconstruction,
we redesigned such that it necessitated 8 piles.
Q Why not, why could you not drive the same
number of piles and on the same spot?
A The original location was already disturbed. We cannot
get required bearing capacity. The area is already
disturbed.
Q Nonetheless, if you drove the original number of piles,
six, on different places, would not that have
sustained the same load?
A It will not suffice, sir." 103

We quote the findings of the lower court with approval:

With regards to the amount of damages that is to be
awarded to plaintiff, the Court finds that the
amount of P1,053,300.00 is justified. Firstly, the
doctrine of res ipsa loquitur best expounded upon in the
landmark case of Republic vs. Luzon Stevedoring Corp.
(21 SCRA 279) establishes the presumption that in the
ordinary course of events the ramming of the dock would
not have occurred if proper care was used.
Secondly, the various estimates and plans justify the
cost of the port construction price. The new structure
constructed not only replaced the damaged one but was
built of stronger materials to forestall the
possibility of any similar accidents in the future.
The Court inevitably finds that the plaintiff is
entitled to an award of P1,053,300.00 which represents
actual damages caused by the damage to Berth 4 of the
Manila International Port. Co-
defendants Far Eastern Shipping, Capt. Senen Gavino and
Manila Pilots Association are solidarily liable to pay this
amount to plaintiff. 104

The Solicitor General rightly commented that the adjudicated

amount of damages represents the proportional
 cost of repair and rehabilitation of the damaged
section of the pier. 105
Except insofar as their liability is limited or exempted by
statute, the vessel or her owners are liable for all damages
caused by the negligence or other wrongs of the owners or those
in charge of the vessel. As a general rule, the owners or those in
possession and control of a vessel and the vessel are liable for
all natural and proximate damages caused to persons or property
by reason of her negligent management or navigation. 106
FESC's imputation of PPA's failure to provide a safe and
reliable berthing place is obtuse, not only because it appears to
be a mere afterthought, being tardily raised only in this petition,
but also because there is no allegation or evidence on record
about Berth No. 4 being unsafe and unreliable, although perhaps it
is a modest pier by international standards. There was, therefore,
no error on the part of the Court of Appeals in dismissing
FESC's counterclaim.
II.   G.R.  No.  130150
This consolidated case treats on whether
the Court of Appeals erred in holding MPA jointly and solidarily
liable with its member pilot, Capt. Gavino, in the
absence of employer-employee relationship and in
applying Customs Administrative Order No. 15-65, as basis for
the adjudged solidary liability of MPA and Capt. Gavino.
The pertinent provisions in Chapter
I of Customs Administrative Order No. 15-65 are:
"PAR. XXVII. — In all pilotage districts where pilotage
is compulsory, there shall be created and maintained by
the pilots or pilots' association, in the manner hereinafter
prescribed, a reserve fund equal to P1,000.00 for each pilot
thereof for the purpose of paying claims for damages to
vessels or property caused through acts or
omissions of its members while rendered in compulsory
pilotage service. In Manila, the reserve fund shall be
P2,000.00 for each pilot. prcd
 PAR. XXVIII. — A pilots' association shall not be liable
under these regulations for damage to any vessel, or other
property, resulting from acts of a member of an
association in the actual performance of his duty for a
greater amount than seventy-five per centum (75 % ) of its
prescribed reserve fund; it being understood that if the
association is held liable for an amount greater than the
amount above-stated, the excess shall be paid by the
personal funds of the member concerned.
PAR. XXXI. — If a payment is made from the reserve
fund of an association on account of damages caused by
a member thereof, and he shall have been found at fault,
such member shall reimburse the association in the
amount so paid as soon as practicable; and for this
purpose, not less than twenty-five per centum of his
dividends shall be retained each month until the full
amount has been returned to the reserve fund.
PAR. XXXIV. — Nothing in these regulations shall
relieve any pilots' association or members thereof,
individually or collectively, from civil responsibility for
damages to life or property resulting from the
acts of members in the performance of their duties.

Correlatively, the relevant provisions of PPA Administrative

Order No. 03-85, which timely amended this applicable maritime
regulation, state:
Article IV
SEC. 17. Pilots' Association. — The Pilots in a
Pilotage District shall organize themselves into a Pilots'
Association or firm, the members of which shall
promulgate their own By-Laws not in conflict with the rules
and regulations promulgated by the Authority. These By-
Laws shall be submitted not later than one (1) month after
the organization of the Pilots' Association for approval by
the General Manager of the Authority. Subsequent
amendments thereto shall likewise be submitted for
approval.
SEC. 25. Indemnity Insurance and Reserve Fund —
a) Each Pilots' Association shall collectively insure its
membership at the rate of P50,000.00 each member
to cover in whole or in part any liability arising from
any accident resulting in damage to vessel(s),port
facilities and other properties and/or injury to persons
or death which any member may have caused in the
course of his performance of pilotage duties. ...
b) The Pilotage Association shall likewise set up and
maintain a reserve fund which shall answer for any
part of the liability referred to in the immediately
preceding paragraph which is left unsatisfied by the
insurance proceeds, in the following manner:
1) Each pilot in the Association shall contribute from
his own account an amount of P4,000.00
(P6,000.00 in the Manila Pilotage District) to the
reserve fund. This fund shall not be considered
part of the capital of the Association nor
charged as an expense thereof.
2) Seventy-five percent (75 % ) of the reserve fund
shall be set aside for use in the
payment of damages referred to above
incurred in the actual performance of pilots'
duties and the excess shall be paid from the
personal funds of the member concerned.
xxx xxx xxx
5) If payment is made from the reserve fund of an
Association on account of damage caused by a
member thereof who is found at fault, he shall
reimburse the Association in the amount so paid
as soon as practicable; and for this purpose, not
less than twenty-five percentum (25%) of his
dividend shall be retained each month until the
full amount has been returned to the reserve
fund. Thereafter, the pilot involved shall be
entitled to his full dividend.
6) When the reimbursement has been completed as
prescribed in the preceding paragraph, the ten
percentum (10 %) and the interest withheld from
 the shares of the other pilots in accordance
with paragraph (4) hereof shall be returned to
them.
c) Liability  of  Pilots' Association — Nothing in these
regulations shall relieve any Pilots' Association or
members thereof, individually or collectively, from
any civil, administrative and/or criminal responsibility
for damages to life or property resulting from the
individual acts of its members as well as
those of the Association's employees and crew in
the performance of their duties.

The Court of Appeals, while affirming the trial court's

finding of solidary liability on the part of FESC, MPA and Capt.
Gavino, correctly based MPA's liability not on the
concept of employer-employee relationship between Capt.
Gavino and itself, but on the
provisions of Customs Administrative Order No. 15-65:
The Appellant MPA avers that, contrary to the
findings and disquisitions of the Court a quo, the
Appellant Gavino was not and has never been an
employee of the MPA but was only a member thereof.
The Court a quo, it is noteworthy, did not state the factual
basis on which it anchored its finding that Gavino was the
employee of MPA. We are in accord with MPA's pose.
Case law teaches Us that, for an employer-employee
relationship to exist, the confluence of the following
elements must be established: (1) selection and
engagement of employees; (2) the payment of wages; (3)
the power of dismissal; (4) the employer's power to
control the employees with respect to the means and
method by which the work is to be performed
(Ruga  versus  NLRC, 181 SCRA 266).  cda

xxx xxx xxx

The liability of MPA for damages is not anchored on
Article 2180 of the New Civil Code as erroneously found
and declared by the Court a quo but under the
provisions of Customs Administrative Order No. 15-
65, supra,in tandem with the by-laws of the MPA." 107
 There being no employer-employee relationship,
clearly Article 2180 108 of the Civil Code is inapplicable since
there is no vicarious liability of an employer to speak of. It is so
stated in American law, as follows:
The well established rule is that pilot associations
are immune to vicarious liability for the tort of their
members. They are not the employer of their members
and exercise no control over them once they take the
helm of the vessel. They are also not partnerships
because the members do not function as agents for the
association or for each other. Pilots' associations are also
not liable for negligently assuring the competence of their
members because as professional associations they made
no guarantee of the professional conduct of their
members to the general public. 109

Where under local statutes and regulations, pilot

associations lack the necessary legal incidents of responsibility,
they have been held not liable for damages caused by the
default of a member pilot. 110 Whether or not the members of a
pilots' association are in legal effect a co-partnership depends
wholly on the powers and duties of the members in relation to
one another under the provisions of the governing statutes and
regulations. The relation of a pilot to his association is not
that of a servant to the master, but of an associate assisting
and participating in a common purpose. Ultimately, the rights and
liabilities between a pilots' association and an individual member
depend largely upon the constitution, articles or by-laws of the
association, subject to appropriate government regulations. 111
No reliance can be placed by MPA on the cited American
rulings as to immunity from liability of a pilots' association in
light of existing positive regulation under Philippine law.
The Court of Appeals properly applied the clear and
unequivocal provisions of Customs Administrative Order No. 15-
65. In doing so, it was just being consistent with its
finding of the non-existence of employer-employee relationship
between MPA and Capt. Gavino which precludes the
application of Article 2180 of the Civil Code.
 True, Customs Administrative Order No. 15 -65 does not
categorically characterize or label MPA's liability as solidary in
nature. Nevertheless, a careful reading and proper
analysis of the correlated provisions lead to the conclusion that
MPA is solidarily liable for the negligence of its member pilots,
without prejudice to subsequent reimbursement from the pilot at
fault.
Article 1207 of the Civil Code provides that there is
solidary liability only when the obligation expressly so states, or
when the law or the nature of the obligation requires solidarity.
Plainly, Customs Administrative Order No. 15-65, which as an
implementing rule has the force and effect of law, can validly
provide for solidary liability. We note the Solicitor General's
comment hereon, to wit:
. . . Customs Administrative Order No. 15-65 may be a
mere rule and regulation issued by an administrative
agency pursuant to a delegated authority to fix "the
details" in the execution or enforcement of a policy set
out in the law itself. Nonetheless, said administrative
order, which adds to the procedural or enforcing
provisions of substantive law, is legally binding and
receives the same statutory force upon going into effect. In
that sense, it has equal, not lower, statutory force and
effect as a regular statute passed by the legislature." 112

MPA's prayer for modification of the appellate court's

decision under review by exculpating petitioner MPA "from
liability beyond seventy-five percent (75 % ) of Reserve Fund" is
unnecessary because the liability of MPA under Par.
XXVIII of Customs Administrative Order No. 15-65 is in fact
limited to seventy-five percent (75%) of its prescribed reserve
fund, any amount of liability beyond that being for the personal
account of the erring pilot and subject to reimbursement in
case of a finding of fault by the member concerned. This is
clarified by the Solicitor General:
Moreover, contrary to petitioner's pretensions, the
provisions of Customs Administrative Order No. 15-65 do
 not limit the liability of petitioner as a pilots' association
to an absurdly small amount of seventy-five per centum
(75%) of the member pilots' contribution of P2,000.00 to
the reserve fund. The law speaks of the entire reserve
fund required to be maintained by the pilots' association to
answer (for) whatever liability arising from the
tortious act of its members. And even if the association
is held liable for an amount greater than the reserve fund,
the association may not resist the liability by claiming to
be liable only up to seventy-five per centum (75 %) of the
reserve fund because in such instance it has the right to be
reimbursed by the offending member pilot for the
excess." 113

WHEREFORE, in view of all of the foregoing, the

consolidated petitions for review are DENIED and the assailed
decision of the Court of Appeals is AFFIRMED in toto.  cdrep

Counsel for FESC, the law firm of Del Rosario and Del

Rosario specifically its associate, Atty. Herbert A. Tria, is
REPRIMANDED and WARNED that a repetition of the same or
similar acts of heedless disregard of its undertakings under the
Rules shall be dealt with more severely.
The original members of the legal team of the
Office of the Solicitor General assigned to this case, namely,
Assistant Solicitor General Roman G. Del Rosario and Solicitor
Luis F. Simon, are ADMONISHED and WARNED that a
repetition of the same or similar acts of unduly delaying
proceedings due to delayed filing of required pleadings shall also
be dealt with more stringently.
The Solicitor General is DIRECTED to look into the
circumstances of this case and to adopt provident measures to
avoid a repetition of this incident and which would ensure
prompt compliance with orders of this Court regarding the
timely filing of requisite pleadings, in the interest of just,
speedy and orderly administration of justice.
 Let copies of this decision be spread upon the personal
records of the lawyers named herein in the Office of the Bar
Confidant.
SO ORDERED.
 (Far Eastern Shipping Co. v. Court of Appeals, G.R. Nos. 130068
|||

& 130150, [October 1, 1998], 357 PHIL 703-761)

FIRST DIVISION

[G.R. No. L-38581. March 31, 1976.]

LORENZO JOSE,  petitioner, vs. THE COURT OF AP
PEALS and THE PEOPLE OF THE
PHILIPPINES,  respondents.

Carreon & Carreon and Zosimo D. de Mesa for petitioner.

Solicitor General Estelito P. Mendoza, Assistant Solicitor
General Eulogio Raquel-Santos and Solicitor Teodoro G.
Bonifacio for respondents.

SYNOPSIS
 Petitioner was convicted of illegal
possession of explosives (handgrenade) that was found on his
person at the time of his notice of appeal and thereafter, a
motion for the reopening of the case to permit him to present,
pursuant to a reservation he made in the course of the trial,
permit to possess the handgrenade in question. The
trial court denied the motion on the ground that it had lost
jurisdiction over the case elevated to
the Court of Appeals where petitioner prayed for his
acquittal or, in the alternative, for the remand of the case
back to the trial court for new trial. The appealed decision
was affirmed. Motions for reconsideration and/or new trial were
filed but were denied, hence, this petition for review which the
Supreme Court at first denied but later reconsidered and
treated as a special civil action.
The Supreme Court ruled that in the interest of justice
and in view of the circumstance of the case, petitioner
should be afforded the opportunity of producing exculpating
evidence.
Judgment of conviction set aside and case remanded to
the court a quo for new trial.

SYLLABUS

1. CRIMINAL PROCEDURE; NEW TRIAL;

GROUND OF NEWLY DISCOVERED EVIDENCE. — It is an
established rule that for a new trial to be granted on the
ground of newly discovered evidence, it must be shown that
(a) the evidence was discovered after trial; (b) such evidence
could not have been discovered and produced at the trial even
with the exercise of reasonable diligence; (c) the evidence is
material, not merely cumulative, corroborative, or impeaching;
and (d) it must go to the merits as ought to produce a different
result if admitted.
2. ID.; ID.; GROUNDS OF SUBSTANTIAL JUSTICE. —
Petitioner does not justify his motion for a new trial on newly
discovered evidence, but rather on broader
grounds of substantial justice under Sec. 11, Rule 124 of the
Rules of Court. Correctly so, the
authority of appellate court over an appealed case is broad
and ample enough to embrace situations where the court may
grant a new trial for reasons other than that provided in Sec.
13 of the same Rule, or Sec. 2, Rule 121 of the
Rules of Court. While Sec. 13, rule 124, and Sec. 2, Rule 121
provide for specific grounds for a new trial, i. e., newly
discovered evidence and errors of law or irregularities
committed during the trial, Sec. 11, Rule 124 does not so
specify, thereby leaving to the sound
discretion of the court the determination, on a case to case
basis, of what would constitute meritorious circumstances
warranting a new trial or retrial.
3. ID.; ID.; ID.; NEW TRIAL IN CRIMINAL CASES ORDERED
ON GROUNDS NOT SPECIFICALLY PROVIDED FOR BY LAW. —
Admittedly, courts may suspend its own rules or except a case,
from them for the purposes of justice or, in a proper case,
disregard them. In this jurisdiction, in not a few instances,
this Court ordered a new trial in criminal case on grounds not
mentioned in the statute, viz: retraction of witness
(People vs. Oscar Castelo, et al., Phil. 54), negligence or
incompetency of counsel (U.S. vs. Gimenez, 34 Phil. 74 ),
improvident plea of guilty (People vs. Solacito, L-29209,
August 25, 1969), disqualification of an attorney de oficio to
represent the accused in the trial (U.S. vs. Laranja, 21 Phil.
500), and where a judgment was rendered on a
stipulation of facts entered into by both the presection and
the defense (U.S. vs. Pobre,11 Phil. 51).
4. ID.; ID.; ID.; NEW TRIAL WARRANTED IN CASE AT BAR.
— The circumstances obtaining in the case at bar justify a
reopening of petitioner's case to afford him the
opportunity of producing exculpating evidence. This is a
situation where a rigid application of rules of procedure must
bow to the overriding goals of courts of justice — to render
 justice where justice is due — to secure to every individual all
possible legal means to prove his innocence of a
crime of which he is charged. The
failure of the Court of Appeals to appreciate the
merits of the situation, involving as it does the liberty of an
individual, thereby closing its ear to a plea that a
miscarriage of justice be averted, constitute a grave
abuse of discretion which calls for relief from this Court.

DECISION

MUÑOZ PALMA, J  : p

Petitioner Lorenzo Jose who was convicted of illegal

possession of explosives (handgrenade) and sentenced to
suffer imprisonment of five years, seeks a new trial which was
denied him by the Court of First Instance of Pampanga,
Branch III, and by respondent Court of Appeals.
Petitioner thus poses one legal issue for the court to
resolve, viz: did respondent appellate court commit an
error of law and gravely abuse its discretion when it denied
petitioner's motion for new trial "for the reception of (1) the
written permit of petitioner to possess and use handgrenade,
and (2) the written appointment of petitioner as PC agent with
Code No. P-36-68 and Code Name 'Safari' (both documents are
dated 31 January 1968)"? 1
The following incidents are not in dispute:
On February 8, 1968, at the poblacion of Floridablanca,
Pampanga, petitioner Jose was arrested by the local police
leading to the filing with the Court of First
Instance of Pampanga, Branch III of several criminal cases
against him to wit: illegal discharge of firearm (Crim. Case
6235), robbery (Crim. Case 6236) and illegal
possession of explosives (Crim. Case 6237). These three
cases were jointly tried after which the trial judge, Hon.
Honorio Romero, in a decision dated December 15, 1969, and
promulgated on January 15, 1970 2 acquitted accused
Lorenzo Jose of illegal discharge of firearm and robbery, but
convicted him for illegal possession of the handgrenade that
was found on his person at the time of his arrest.
After promulgation of the judgment, petitioner on that
same day, filed his notice of appeal. Nine days thereafter or
more particularly on January 24, 1970, petitioner filed a motion
praying that the case be reopened to permit him to present,
pursuant to a reservation he had made in the course of the
trial, a permit to possess the handgrenade in question. The
trial court in its order of January 30, 1970 denied the motion
mainly on the ground that it had lost jurisdiction over the case
in view of the perfection of the appeal by the accused on the
very date the decision was promulgated. 3
The records of Criminal Case 6237 were then elevated to
the Court of Appeals where petitioner as accused-appellant
raised the issues of (1) an erroneous conviction for illegal
possession of explosives when there was no proof of an
essential element of the crime, and (2) erroneous
denial of his motion to reopen the case for the
reception of his permit to possess the handgrenade. 4 In his
brief, Lorenzo Jose prayed for his acquittal or in the
alternative for the remand of the case back to the
trial court for a new trial.
Resolving the appeal, respondent
Appellate Court, 5 rendered its decision of March 8, 1974,
affirming the findings of fact and the
judgment of conviction of the court a quo, and declaring
that no. reversible error was committed by the latter when it
denied the reopening of the case as the court had lost its
"power to change, modify, or alter its decision." 6
A motion for reconsideration and/or new trial was filed
with a plea that "assuming arguendo that the court a
quo lacked jurisdiction to act upon appellant's motion for new
trial because of the perfection of the appeal, this
Honorable Court — before which said motion was reiterated
and which has competence to act thereon — should have
granted the same if for no other reason than to prevent a
miscarriage of justice which is the inevitable result of its
denial." 7 This motion for reconsideration was denied in
respondent court's resolution of April 3, 1974. 8
A second motion for reconsideration and/or new trial was
filed by Lorenzo Jose 9 but this was also denied by the
appellate court in a Resolution promulgated on July 24,
1974. 10
Forthwith, appellant Lorenzo Jose assisted by counsel,
Atty. Francisco Carreon, filed with Us this petition for review
which We denied outright on September 6, 1974, "the question
raised being factual and for insufficient showing that the
findings of facts by respondent court are unsupported by
substantial evidence, and for lack of merit."
A motion for reconsideration was filed by petitioner
stressing that the following grounds should justify
this Court to review the ruling of respondent appellate court,
to wit:
"1. petitioner's plight is of compelling human and
legal interest, and his being imprisoned for five (5) years
when there is indubitable exculpatory evidence on hand is
a result — so harsh that the Honorable Court may well
undertake a review of the case just to satisfy
itself of the justice and inevitability of such a result;
"2. a question of substance not heretofore
determined by the Honorable Court is involved, as the
evidence sought to be introduced at the new trial is,
technically, not newly discovered; and
"3. the denial of a new trial in the circumstances
mentioned in his above-quoted statement of the main
legal issue, is contrary to the decisions of this
Honorable Court because under these decisions, the new
trial should have been granted since there is a 'strong,
compelling reason' in this case for granting the relief
 prayed for, such strong compelling reason being the very
strong probability of petitioner's acquittal if a new trial
were granted. (Workmen's Insurance Co. vs. Augusto, 40
SCRA 123; Sison vs. Gatchalian, 51 SCRA 262; Rubio vs.
Mariano 52 SCRA 338; Montecines vs. Court of Appeals,
53 SCRA 14; Posadas vs. Court of Appeals, L-38071, April
25, 1974; please see Annotation: 52 SCRA 346. . . ." (pp.
157-158, rollo).

The Solicitor General opposed the granting of the

foregoing motion for reconsideration claiming that there was
neither a denial of "substantial justice nor error of any sort
on the part of respondent Court of Appeals, affirming the
judgment of conviction," and that it being admitted by
petitioner that the evidence sought to be introduced by him at
the new trial is not newly discovered evidence, the
denial of the new trial "visibly appears as correct". This
Opposition drew a lengthy reply from petitioner's counsel.
On February 13, 1975, a Manifestation was submitted by
the Solicitor General informing the Court that in view of the
"persistence of accused petitioner Lorenzo Jose both before
this Honorable Court and respondent Court of Appeals as to
his alleged existing appointment as PC Agent and/or authority
to possess handgrenade," in the interest of justice, he was
constrained to make pertinent inquiries from the PC Chief, Gen.
Fidel V. Ramos who in reply sent his letter dated December 27,
1974 with enclosures, xerox copies of which are being
attached to the manifestation as Annexes A, B, C, C-1 and D. 11
Annex A of the above-mentioned Manifestation of the
Solicitor General reads:
"Solicitor General Estelito P. Mendoza Padre Faura,
Manila.
Dear Solicitor General Mendoza:
"With reference to your letter of December 5, 1974,
please be informed that Colonel Pedrito C. de Guzman, who
is now Provincial Commander of Sorsogon Constabulary
Command, confirmed that he executed an affidavit on May
 4, 1974 at Sorsogon, Sorsogon stating that he appointed
Mr. Lorenzo Jose of Betis, Guagua, Pampanga as PC
Agent on January 31, 1968.
"The incumbent Provincial Commander of Pampanga
Constabulary Command also confirmed the
appointment of Lorenzo Jose as PC agent during the
year 1968.
"Attached herewith are the pertinent papers related
to the said appointment.
"Sincerely yours,
(Sgd.) FIDEL V. RAMOS
FIDEL V. RAMOS
Major General, AFP
Chief of Constabulary"
(p. 191, rollo)
Inclosure:
Appointment paper
of subject person dtd
Jan. 31, 1968 with
Personal History
Statement
Annex B is the appointment dated January 31,
1968 of petitioner Lorenzo Jose as a PC Agent of the
Pampanga Constabulary Command with Code Number P-36-68
and Code Name "Safari" with expiration on December 31, 1968,
the pertinent portion of which We quote:
"This Headquarters will, from time to time, provide
you firearms and such other equipment which it may deem
necessary for your personal protection on the need basis
which will be covered by separate written authority." (p.
192, rollo).

In a Resolution of February 21, 1975, the Court resolved

to set aside the denial of this petition for review, to give due
course and consider the Petition as a special civil action. In
another Resolution of April 4, 1975, the parties were given
time to submit their respective memorandum.
 This is a situation where a rigid
application of rules of procedure must bow to the overriding
goal of courts of justice — to render justice where justice is
due — to secure to every individual all possible legal means to
prove his innocence of a crime of which he is charged. The
failure of the Court of Appeals to appreciate the
merits of the situation, involving as it does the liberty of an
individual, thereby closing its ear to a plea that a
miscarriage of justice be averted, constitutes a grave
abuse of discretion which calls for relief from this Court.
At the outset, We give due credit to the Solicitor General
and his staff for upholding the time-honored principle set forth
in perspicuous terms by this Court in Suarez  vs. Platon, et
al., that a prosecuting officer, as the representative of a
sovereignty whose obligation and interest in a criminal
prosecution is not that it shall win a case but that justice shall
be done, has the solemn responsibility to assure the public
that while guilt shall not escape, innocence shall not suffer .
(69 Phil. 556, 564-565, quoting Justice Sutherland of the U.S.
Supreme Court in 69 U.S. Law Review, June, 1935, No. 6, p.
309) The Solicitor General now concedes that the
interests of justice will best be served by remanding this case
to the court of origin for a new trial.
We do not question the correctness of the
findings of the Court of Appeals that the evidence sought to
be presented by the petitioner do not fall under the
category of newly-discovered evidence because the same —
his alleged appointment as an agent of the Philippine
Constabulary and a permit to possess a handgrenade — were
supposed to be known to petitioner and existing at the
time of trial and not discovered only thereafter.
It is indeed an established rule that for a new trial to be
granted on the ground of newly discovered evidence, it must
be shown that (a) the evidence was discovered after trial; (b)
such evidence could not have been discovered and produced at
the trial even with the exercise of reasonable diligence; (c)
the evidence is material, not merely cumulative, corroborative,
or impeaching; and (d) it must go to the merits as ought to
produce a different result if admitted. 12
However, petitioner herein does not justify his motion for
a new trial on newly discovered evidence, but rather on
broader grounds of substantial justice under Sec. 11, Rule
124 of the Rules of Court which provides:
"Power  of  appellate  court  on appeal. — Upon
appeal from a judgment of the Court of First Instance,
the appellate court may reverse, affirm, or modify the
judgment and increase or reduce the penalty imposed by
the trial court, remand the case to the Court of First
Instance for new trial or retrial, or dismiss the case."

Petitioner asserts, and correctly so, that the

authority of respondent appellate court over an appealed
case is broad and ample enough to embrace situations as the
instant case where the court may grant a new trial or a retrial
for reasons other than that provided in Section 13 of the same
Rule, or Section 2, Rule 121 of the Rules of Court. 13 While
Section 13, Rule 124, and Section 2, Rule 121, provide for
specific grounds for a new trial, i.e. newly discovered evidence,
and errors of law or irregularities committed during the trial,
Section 11, Rule 124 quoted above does not so specify, thereby
leaving to the sound discretion of the court the
determination, on a case to case basis, of what would
constitute meritorious circumstances warranting a new trial or
retrial.
Surely, the Rules of Court were conceived and
promulgated to aid and not to obstruct the proper
administration of justice, to set forth guidelines in the
dispensation of justice but not to bind and chain the hands
that dispense justice, for otherwise, courts will be mere slaves
to or robots of technical rules, shorn of judicial discretion.
Thus, admittedly, courts may suspend its own rules or
except a case from them for the purposes of justice 14 or, in
a proper case, disregard them. 15 In this jurisdiction, in not a
few instances, 15 this Court ordered a new trial in criminal
cases on grounds not mentioned in the statute, viz:
retraction of witness, 16 negligence or
incompetency of counsel, 17 improvident
plea of guilty, 18 disqualification of an attorney de oficio to
represent the accused in the trial court, 19 and where a
judgment was rendered on a stipulation of facts entered into
by both the prosecution and the defense. 20
Characteristically, a new trial has been described as a
new invention to temper the severity of a judgment or prevent
the failure of justice. 21
Petitioner cites certain peculiar circumstances obtaining
in the case now before Us which may be classified as
exceptional enough to warrant a new trial if only to afford
human opportunity to establish his innocence of the crime
charged.
Thus — petitioner was facing a criminal prosecution for
illegal possession of a handgrenade in the court below. He
claimed to be an agent of the Philippine Constabulary with a
permit to possess explosives such as the handgrenade in
question. However, he found himself in a situation where he
had to make a choice — reveal his identity as an undercover
agent of the Philippine Constabulary assigned to perform
intelligence work on subversive activities and face possible
reprisals or even liquidation at the hands of the dissidents
considering that Floridablanca, the site of the incident, was in
the heart of "Huklandia", or ride on the hope of a possible
exoneration or acquittal based on insufficiency of the
evidence of the prosecution. Without revealing his identity as
an agent of the Philippine Constabulary, he claimed before the
trial judge that he had a permit to possess the handgrenade
and prayed for time to present the same. The permit however
could not be produced because it would reveal his intelligence
work activities. Came the judgment of conviction and with it
the staggering impact of a five-year imprisonment. The
competent authorities then realized that it was unjust for this
 man to go to jail for a crime he had not committed, hence,
came the desired evidence concerning petitioner's
appointment as a Philippine Constabulary agent and his
authority to possess a handgrenade for the protection of his
person, but, it was too late according to the
trial court because in the meantime the accused had
perfected his appeal.
We find and hold that the above circumstances justify a
reopening of petitioner's case to afford him the
opportunity of producing exculpating evidence. An outright
acquittal from this Court which petitioner seeks as an
alternative relief is not proper. As correctly stressed by the
Solicitor General, the People is to be given the
chance of examining the documentary evidence sought to be
produced, and of cross-examining the persons who executed
the same, as well as the accused himself, now petitioner, on
his explanation for the non-production of the evidence during
the trial.
PREMISES CONSIDERED, We hereby set aside the
judgment of conviction of the herein petitioner,
Lorenzo Jose, and remand the case to the court a quo for a
new trial only for the purpose of allowing said accused to
present additional evidence in his defense. The
trial court shall inform this Court of the final
outcome of the case within a reasonable time. Without
pronouncement as to costs.
So ordered.
 (Jose v. Court of Appeals, G.R. No. L-38581, [March 31, 1976],
|||

162 PHIL 364-377)

EN BANC

[G.R. No. L-26222. July 21, 1967.]

 THE PEOPLE OF THE
PHILIPPINES,  petitioner, vs. HONORABLE JUDGE
HERNANDO PINEDA of the Court of First Instance of
Lanao del Norte; and TOMAS NARBASA, TAMBAC
ALINDO, and RUFINO BORRES, respondents.

Dominador L.  Padilla  for petitioner.

Narbasa, Tambac Alindo & Borres  for respondents.

SYLLABUS

1. CRIMINAL LAW; CRIMINAL PROCEDURE; MURDER;

SEPARATE SHOTS KILLING VARIOUS VICTIMS GIVE RISE TO
SEPARATE CRIMES; SEPARATE INFORMATIONS SHOULD BE
FILED. — Where the facts alleged are that defendants fired
guns in rapid succession from outside the house of a family,
killing the father, and that defendants then forcibly entered the
house, letting loose several shots, killing all the three minor
children and wounding the mother, the City Fiscal correctly
presented five separate informations — four for murder and one
for frustrated murder. When various victims expire from
separate shots, such acts constitute separate and distinct
crimes.
2. ID.; COMPLEX CRIMES; SINGLE ACT, NOT SINGLE
IMPULSE, IS DECISIVE. — To apply the first half of Article 48 of
the Revised Penal Code, which punishes as a complex crime a
single act constituting two or more grave or less grave
felonies, there must be singularity of criminal act; singularity of
criminal impulse is not written into the law.
3. CRIMINAL PROCEDURE; CASES OF RELATED
OFFENSES MAY BE TRIED JOINTLY. — To obviate the
necessity of trying five cases instead of one is a laudable
purpose but cannot, by itself, justify a trial judge to order the
fiscal to file only one information for multiple murder. Section
 15, Rule 119, Rules of Court, confers upon the judge the power
to try these cases jointly.
4. PROSECUTION OF OFFENSES; FISCAL NOT
COMPELLED TO FILE A PARTICULAR CHARGE; REASONS
THEREFORE. — A prosecuting attorney is under no compulsion
to file a particular criminal information where he is not
convinced that he has evidence to prop up the averments
thereof, or that the evidence at hand points to a different
conclusion, notwithstanding the possibility of abuses on his
part, because he should not be unduly compelled to work
against his conviction and, in case of doubt, should be given
the benefit thereof. A contrary rule may result in courts being
unnecessarily swamped with unmeritorious cases and, worse
still, a criminal suspect's right to due process may be
transgressed.
5. ID.; FISCAL'S OPINION ON WHAT CRIME IS TO BE
CHARGED NORMALLY PREVAILS. — As the question of
instituting a criminal charge is addressed to the sound
discretion of the investigating fiscal, in a clash of views as
what crime is to be charged, between the judge who did not
investigate and the fiscal who did, or between the fiscal and
the offended party or the defendant, those of the fiscal's should
normally prevail.

DECISION

SANCHEZ, J  : p

Respondents Tomas Narbasa, Tambac Alindo and Rufino

Borres stand indicted before the Court of First Instance of
Lanao del Norte, as principals, in five (5) separate cases, four
for murder and one for frustrated murder, viz:
Criminal Case 1246 — murder of Neceforo Mendoza;
Criminal Case 1247 — murder of Epifania Mendoza;
 Criminal Case 1248 — frustrated murder of Valeriana
Bontilao de Mendoza;
Criminal Case 1249 — murder of Teofilo Mendoza; and
Criminal Case 1250 — murder of Marcelo Mendoza.

The five informations were planted upon facts gathered by

the prosecuting attorney from his investigation. Of course, the
truth of these facts is yet to be tested in the crucible of a full-
dress trial on the merits.
The indictments are bottomed upon the following alleged
pivotal facts:
On the night of July 29, 1965, the occupants of the home
of the spouses Teofilo Mendoza and Valeriana Bontilao de
Mendoza in Puga-an. City of Iligan, were asleep. It was then
that guns (rifle, caliber 22) and pali-untod (home-made gun)
were fired in rapid succession from outside the house. Teofilo
Mendoza fell dead. Thereafter, defendants below destroyed the
door of the house, entered therein and let loose several shots
killing Neceforo Mendoza, Epifania Mendoza and Marcelo
Mendoza — all minor children of the couple — and wounding
Valeriana Bontilao de Mendoza.
Two of the three defendants in the five criminal cases
heretofore listed — Tomas Narbasa and Tambac Alindo —
moved for a consolidation thereof "into one (1) criminal case."
Their plea is that "said cases arose out of the same incident
and motivated by one impulse."
Giving the nod to defendant's claim, respondent Judge, in
an order dated May 13, 1966, directed the City Fiscal to unity
all the five criminal cases, and to file one single information in
Case 1246. He also ordered that the other four cases, Nos.
1247, 1248, 1249 and 1250 "be dropped from the docket."
The City Fiscal balked at the foregoing order, sought
reconsideration thereof, upon the ground that "more than one
gun was used, more than one shot was fired and more than one
victim was killed." The defense opposed.
 On May 31, 1966, respondent Judge denied the motion to
reconsider. He took the position that the acts complained of
"stemmed out of a series of continuing acts on the part of the
accused, not by different and separate sets of shots, moved by
one impulse and should therefore be treated as one crime to
the series of shots killed more than one victim"; and that only
one information for multiple murder should be filed, to "obviate
the necessity of trying five cases instead of one."
Primarily to annul respondent Judge's orders of May 13,
1966 and May 31, 1966, as having been issued without or in
excess of jurisdiction and/or with grave abuse of discretion,
the People came to this Court on certiorari with a prayer for a
writ of preliminary injunction, and for other reliefs.
This Court, on July 1, 1966, issued the cease-and-desist
order prayed for.
The question here presented, simply is this: Should there
be one information, either for the complex crime of murder and
frustrated murder or for the complex crime of robbery with
multiple homicide and frustrated homicide? Or, should the five
indictments remain as they are?
1. The case before us calls into question the applicability
of Article 48 of the Revised Penal Code, as amended, which
reads:
"ARTICLE 48. Penalty for complex crimes. — When a
single act constitutes two or more grave or less grave
felonies, or when an offense is a necessary means for
committing the other, the penalty for the most serious
crime shall be imposed, the same to be applied in its
maximum period."

Read as it should be, Article 48 provides for two classes

of crimes where a single penalty is to be imposed: first, where
a single act constitutes two or more grave or less grave
felonies (delito compuesto); and, second, when an offense is a
necessary means for committing the other (delito complejo). 1
 Best exemplified by the first of the two cases is where
one shot from a gun results in the death of two or more
persons. Jurisprudence teaches that, in this factual setting, the
complex crime defined in the first part of Article 48 finds
application. 2 A similar rule obtains where one stabbed
another and the weapon pierced the latter's body through and
through and wounded another. The first died instantaneously;
the second, seven days later, This Court convicted the
assailant of double murder. 3 So where a person plants a bomb
in an airplane and the bomb explodes with the result that a
number of persons are killed, that single act again produces a
complex crime. 4
A different rule governs where separate and distinct acts
result in a number killed. Deeply rooted is the doctrine that
when various victims expire from separate shots, such acts
constitute separate and distinct crimes. 5 Thus, where the six
defendants, with others (armed with pistols, carbines and also
a submachine gun and Grand rifles), fired volleys into a house
killing eleven and wounding several others, each of the said
accused is "guilty of as many crimes of murder as there were
deaths (eleven)." 6 Again, eleven persons were indicted for
quadruple murder — with the use of bolos, a pistol, a barbed
arrow and a piece of bamboo — of a man, his common-law wife,
and their two children in cold blood. The accused were found
guilty by the trial court of such offense. This Court, in reversing
this ruling below, held that "[t]he four victims were not killed
by a single act but by various acts committed on different
occasions and by different parties"; that such acts "may not be
regarded as constituting one single crime"; and that "[t]hey
should be held as separate and distinct crimes." 7 And a third.
At the commencement exercises of an elementary school, "a
shot suddenly rang out" followed by a "series of shots" — from
a pistol. Two persons lay dead and a third seriously wounded
but who later on also died. This Court there ruled that there
were "three distinct and separate murders" committed by
appellant Juan Mones. 8 And finally, in People vs. Gatbunton,
L-2435, May 10, 1950, the spouses Mariano Sebastian and
Maxima Capule — who were asleep — were killed by one burst
of machinegun fire; and then, by a second burst of machinegun
fire, two of the couple's children — also asleep — were killed.
The accused, Tomas Gatbunton, was found guilty by the trial
court of quadruple murder. On appeal, this Court declared that
"appellant must be declared guilty of four murders." 9
The present case is to be differentiated
from People vs. Lawas, L-7618-20, June 30, 1955. There, on a
single occasion, about fifty Maranaos were killed by a group of
home guards. It was held that there was only one complex
crime. In that case, however, there was no conspiracy to
perpetrate the killing. In the case at bar, defendants performed
several acts. And the informations charge conspiracy amongst
them. Needless to state, the act of one is the act of all. 10 Not
material here, therefore, is the finding in Lawas that "it is
impossible to ascertain the individual death caused by each
and everyone" of the accused. It is to be borne in mind, at this
point, that to apply the first half of Article 48, heretofore
quoted, there must be singularity of criminal act, singularity of
criminal impulse is not written into the law. 11 
The respondent judge reasons out in his order of May 31,
1966 that consolidation of the five cases into one would have
the salutary effect of obviating the necessity of trying five
cases instead of one. To save time, indeed, is laudable.
Nonetheless, the statute confers upon the trial judge the power
to try these cases jointly, such that the fear entertained by
respondent Judge could easily be remedied. 12
Upon the facts and the law, we hold that the City Fiscal of
Iligan City correctly presented the five separate informations —
four for murder and one for frustrated murder.
2. We have not overlooked the suggestion in the record
that, because of an affidavit of one of the witnesses, possibility
exists that the real intent of the culprits was to commit
robbery, and that the acts constituting murders and frustrated
murder complained of were committed in pursuance thereof. If
true, this would bring the case within the coverage of the
second portion of Article 48, which treats as a complex crime a
case where an offense is a necessary means for committing
the other.
A rule of presumption long familiar, however, is that
official duty has been regularly performed. 13 If the Fiscal has
not seen fit to give weight to said affidavit wherein it is alleged
that certain personal properties (transistor radio and money)
were taken away by the culprits after the shooting, we are not
to jettison the prosecutor's opinion thereon. The Fiscal could
have had reasons for his act. For one thing, there is the grave
problem of proving the elements of that offense — robbery. For
another, the act could have been but a blind to cover up the
real intent to kill. Appropriately to be noted here is that all the
informations charged evident premeditation. With ponderables
and imponderables, we are reluctant to hazard a guess as to
the reasons for the Fiscal's action. We are not now to say that,
on this point, the Fiscal has abused his discretion. A
prosecuting attorney, by the nature of his office, is under no
compulsion to file a particular criminal information where he is
not convinced that he has evidence to prop up the averments
thereof, or that the evidence at hand points to a different
conclusion. This is not to discount the possibility of the
commission of abuses on the part of the prosecutor. But we
must have to recognize that a prosecuting attorney should not
be unduly compelled to work against his conviction. In case of
doubt, we should give him the benefit thereof. A contrary rule
may result in our court being unnecessarily swamped with
unmeritorious cases. Worse still, a criminal suspect's right to
due process — the sporting idea of fair play — may be
transgressed. So it is, that in People vs. Sope, 75 Phil. 810,
815, this Court made the pronouncement that "[i]t is very
logical that the prosecuting attorney, being the one charged
with the prosecution of offenses, should determine the
information to be filed and cannot be controlled by the offended
party. 14
 3. The impact of respondent Judge's orders is that his
judgment is to be substituted for that of the prosecutor's on the
matter of what crime is to be filed in court. The question of
instituting a criminal charge is one addressed to the sound
discretion of the investigating Fiscal. The information he
lodges in court must have to be supported by facts brought
about by an inquiry made by him. It stands to reason then to
say that in a clash of views between the judge who did not
investigate and the fiscal who did, or between the fiscal and
the offended party or the defendant, those of the Fiscal's
should normally prevail. In this regard, he cannot ordinarily be
subject to dictation. We are not to be understood as saying that
criminal prosecution may not be blocked in exceptional cases.
A relief in equity "may be availed of to stop a purported
enforcement of a criminal law where it is necessary (a) for the
orderly administration of justice; (b) to prevent the use of the
strong arm of the law in an oppressive and vindictive manner;
(c) to avoid multiplicity of actions; (d) to afford adequate
protection to constitutional rights; and (e) in proper cases,
because the statute relied upon is unconstitutional or was 'held
invalid.'" 15 Nothing in the record would as much as intimate
that the present case fits into any of the situations just recited.
And at this distance and in the absence of any compelling
fact or circumstance, we are loathe to tag the City Fiscal of
Iligan City with abuse of discretion in filing separate cases for
murder and frustrated murder, instead of a single case for the
complex crime of robbery with homicide and frustrated
homicide under the provisions of Article 294 (1) of the Revised
Penal Code or, for that matter, for multiple murder and
frustrated murder. We state that, here, the Fiscal's discretion
should not be controlled.
Upon the record as it stands, the writ of certiorari prayed
for is hereby granted; the orders of respondent Judge of May
13, 1966 and May 31, 1966 are hereby set aside and declared
null and void, and, in consequence, the writ of preliminary
injunction heretofore issued is made permanent insofar as it
 stops enforcement of the said orders; and the respondent
Judge, or whoever takes his place, is hereby directed to
reinstate Criminal Cases 1246, 1247, 1248, 1249 and 1250 as
they were commenced, and to take steps towards the final
determination thereof.
Costs against respondents Tomas Narbasa, Tambac
Alindo and Rufino Borres. So ordered.
 (People v. Pineda, G.R. No. L-26222, [July 21, 1967], 127 PHIL
|||

150-158)

SECOND DIVISION

[G.R. No. L-35133. May 31, 1974.]

PEOPLE OF THE PHILIPPINES,  plaintiff-

appellee, vs. RAYMUNDO MADERA @ "Mundo",
MARIANITO V. ANDRES @ "Totoy", GENEROSO
ANDRES @ "Ross", defendants-appellants.

Francisco G. Munsayac, Sr.  for appellant Madera.

Apolinar F. Tolentino  and  Jose C. Vitug  for appellant
Andres, et al.
Solicitor General Estelito P. Mendoza, Assistant Solicitor
General Dominador L. Quiroz  and  Solicitor Sinfronio I.
Ancheta  for appellee.

DECISION

FERNANDEZ, J  : p
 This case is now before Us on appeal of the three
appellants from a decision of the Circuit Criminal
Court 1 finding them guilty of the crime of murder, and
sentencing them to suffer the penalty of reclusion
perpetua and to jointly and severally indemnify the heirs of the
victim in the amount of P12,000.00 without subsidiary
imprisonment in case of insolvency, and to pay the cost
proportionately.
There is no question that at about 2:00 o'clock in the early
morning of April 20, 1970, three men barged at the doorstep of
the house of the victim Elino Bana in Sitio Baag, Barrio Bantug,
Gabaldon, Nueva Ecija. The gunman, standing on the first rung
of the stairs of the house, fired a volley of shots from a .45
caliber gun at Elino Bana who was then sleeping on the floor of
his house near the stairs. Two gunshot wounds were inflicted
on the victim but the fatal one was the one that hit him on the
abdominal region. Elino Bana did not die immediately. He stood
up and told his wife to call for his brother Conrado who lives
not far away from their house. The victim's wife fetched
Conrado; but when they returned, the wounded man was no
longer at home for he was already brought to the Municipal
Building of Gabaldon. He was carried by his son-in-law,
Francisco Viloria, with the assistance of some people. From
the Municipal Building, he was brought to the Nueva Ecija
General Hospital, but he died on the way that same day, April
20, 1970.
We affirm the lower court's finding that the prosecution
has proven beyond reasonable doubt that appellant
Raymundo Madera was the one who fired the shots at the
victim Elino Bana, one of which was the fatal shot, and that
appellants Marianito Andres and Generoso Andres were
with Madera at the time.
Juanito Bana, a son of the victim, testified that he was
awakened by the gunfire and saw the appellant
Raymundo Madera standing on the first step of their stairs
holding a .45 caliber firearm. He also saw the appellants
Marianito Andres and Generoso Andres just behind the
appellant Madera, at a distance of 1 1/2 meters from the stairs.
Bernarda Bana, wife of the victim, declared that she saw
Raymundo Madera as the one who shot her husband with a
foot-long firearm, and appellants Marianito Andres and
Generoso Andres were then with Madera.
In addition to the testimonies of these two witnesses, the
prosecution presented the dying declaration of the victim Elino
Bana. The trip from the house of Elino Bana to the Municipal
Building took only about thirty minutes. On the way, they were
met by policeman Ambrosio Feliciano from Gabaldon who was
fetched from his house by Barrio Captain Emiliano Jornadal of
Bantug to look into the shooting incident. Upon reaching the
Municipal Building Patrolman Feliciano told Elino Bana that he
would have to take down his written statement regarding the
shooting incident, and the latter agreed. The latter was then in
agony. It was then 3:00 o'clock in the morning. In said dying
declaration, he was asked who shot him and the answer was:
Mundo Madera and two others whom he could not recognize.
The lower court was correct in refusing to give credence
to the testimony of Patrolman Feliciano that while they were on
their way to the Municipal Building, Elino Bana told him that he
could not identify the persons who shot him. Said policeman
has been an investigator in the police force since 1964. He
should have asked Elino Bana while he was giving his dying
declaration in the Municipal Building why he said earlier that
he did not know who shot him. But Patrolman Feliciano did not
do this. It must be noted that not only Patrolman Feliciano but
also Francisco Viloria, a witness to the dying declaration,
testified to its lawful execution.
The fact that Juanito Bana and Bernarda Bana failed to
reveal right away the identities of the appellants to the victim
himself and to their relatives Conrado Bana and Francisco
Viloria, does not militate against their credibility. There is no
evidence on record that they were asked by their relatives
about the identity of the appellants. Had they been asked, they
would have readily revealed appellants' identities as they did to
the Chief of Police and Municipal Mayor of Gabaldon only a few
hours after the fateful incident, during a formal investigation of
the case in the Office of the Chief of Police when and where
they executed their respective sworn statements.
In their respective written statements taken on April 20,
1970, subscribed and sworn on the same date before the Mayor
of Gabaldon, Bernardo Bana and Juanito Bana categorically
stated that Elino Bana was shot by Raymundo Madera @
Mundo, while Ross and Totoy Andres were downstairs.
Juanito Bana was then living with his parents. He must be
familiar with their house. He testified on direct examination
that he slept in the balcony of their house. On cross
examination, he said that he slept inside their house. That does
not show any inconsistency in his testimony, because on
further questioning, he said that the balcony referred to by him
was inside their house. Yes, he said that after he heard the
shots, he jumped to the ground through the back portion of
their house. The falsity of this statement has not been shown
by the defense. The pictures presented by it which apparently
show that there was no such opening, can be explained by the
fact that the tall grasses could obscure the back portion of the
house where the kitchen door was located.
Juanito Bana admitted that he was gripped with fear when
he heard the burst of gunfire. But that would not prove that he
failed to recognize the appellants.
"An excited person may overlook the presence of
another whom he would otherwise have observed."
"Under some circumstance, however, excitement
may whet the attention to a keen edge. . . . In some other
cases, it has been observed, in effect, that the emotion
incident to the impending peril may not be the kind of
excitement which confuses, but that which focalizes the
faculties to scrutinize the circumstance of the threatened
danger in order to avoid it." 2
 The appellants asserted in their briefs 3 that "the
evidence on record does not show that there was a moon
shining in the early morning of April 20, 1970, at Barrio Bantug,
Gabaldon, Nueva Ecija;" that it was then "a moonless night;"
hence, Juanito Bana and Bernarda Bana could not have
recognized the appellants. This position is untenable. Why?
The Court can take judicial notice of the "laws of
nature" 4 and, under this rule, of the time when the moon rises
or sets on a particular day. 5 This notwithstanding and for
certainty, We took it unto Ourselves to get a certification from
the Weather Bureau 6 which shows that the moon was bright
at the time of the shooting incident. It reads:
"To whom It May Concern:
"This is to certify that, based on the computations
made by this office, the following astronomical data for
Gabaldon, Nueva Ecija are true and correct:
1. that the moon rose at 4:11 P.M. on April 19,
1970 and set the following day, April 20, at 4:27 A.M.;
2. that at 2:00 A.M. on April 20, 1970, the moon
was at an altitude of 34 degrees above the western
horizon with bearing of South 73 degrees West;
3. and that the moon was illumined 97% at 2:00
A.M. on April 20, 1970, full moon having occurred at
00.21 A.M. on April 22, 1970.
"This certification is issued upon the request of Mr.
Estanislao Fernandez, Associate Justice, Supreme Court,
Manila.
For the Administrator:
(Sgd) Simeon V. Inciong
SIMEON V. INCIONG
Chief, Astronomical
Division"
It was not necessary for the prosecution to prove motive
on the part of the appellants for there is no doubt as to their
identities.
 It is true that, according to Maximo A. Obra, the forensic
chemist of the NBI, appellant Raymundo Madera was found
negative in a paraffin test. But Obra himself admitted that, the
paraffin test having been conducted fourteen days after the
incident, the test could have given a negative result even if the
appellant had fired a gun fourteen days earlier, because the
nitrate deposits on his hands could have been washed off by
washing or could have been removed by perspiration.
The defense of the appellants was alibi. But said defense
cannot prevail over the positive identification of the appellants
by the prosecution witnesses. The house of appellant
Raymundo Madera is just about 400 meters away from that of
the victim Elino Bana.
We need not discuss further the defense of alibi of the
appellants Marianito Andres and Generoso Andres because the
Solicitor General recommended their acquittal. And We agree.
The fact that these two appellants were standing behind
appellant Madera when the latter fired shots at Elino Bana,
did not make them liable for what Madera did, there being no
proof whatsoever of any conspiracy among the three
appellants. They were not armed. They did nothing to
help Madera. Their mere passive presence at the scene of the
crime did not make them liable either as co-principals or
accomplices. In one of the latest decisions of this Court,
penned by Justice Felix Q. Antonio. We held:
"It is well to recall the settled rule that conspiracy
presupposes the existence of a preconceived plan or
agreement and in order to establish the existence of such
a circumstance, it is not enough that the persons
supposedly engaged or connected with the same he
present when the crime was perpetrated. There must be
established a logical relationship between the commission
of the crime and the supposed conspirators, evidencing a
clear and more intimate connection between and among
the latter, such as by their overt acts committed in
pursuance of a common design. Considering the far-
reaching consequences, of criminal conspiracy, the same
 degree of proof required for establishing the crime is
required to support a finding of its presence that is, it must
be shown to exist as clearly and convincingly as the
commission of the offense itself.
"The evidence fails to meet such requirements. To
hold him liable, upon the other hand, as an accomplice, it
must be shown that he had knowledge of the criminal
intention of the principal, which may be demonstrated by
previous or simultaneous acts which contributes to the
commission of the offense as aid thereto whether physical
or moral. As aptly stated in People v. Tamayo: 'It is an
essential condition to the existence of complicity, not only
that there should be a relation between the acts done by
the principal and those attributed to the person charged as
accomplice, but it is further necessary that the latter, with
knowledge of the criminal intent, should cooperate with
the intention of supplying material or moral aid in the
execution of the crime in an efficacious way.' . . . From our
view of the evidence it has not been convincingly
established that appellant cooperated in the commission of
the offense, either morally, through advice, encouragement
or agreement or materially through external acts indicating
a manifest intent of supplying aid in the perpetration of the
crime in an efficacious way. Such circumstances being
absent, his mere passive presence at the scene of the
crime certainly does not make him either a co-principal or
an accomplice in the commission of the offense." 7

This is good a time as any to emphasize upon those in

charge of the prosecution of criminal cases that the
prosecutor's finest hour is not when he wins a case with the
conviction of the accused. His finest hour is still when,
overcoming the advocate's natural obsession for victory, he
stands up before the Court and pleads not for the conviction of
the accused but for his acquittal. For indeed, his noble task is
to prosecute only the guilty and to protect the innocent. We,
therefore, commend Solicitor General Estelito P. Mendoza,
Assistant Solicitor Dominador L. Quiroz and Solicitor Sinfronio
 I. Ancheta for having correctly recommended the acquittal of
the appellants Marianito Andres and Generoso Andres.
WHEREFORE, the decision appealed from is hereby
affirmed with respect to the appellant Raymundo Madera alias
"Mundo", with 1/3 of the cost charged against him; and it is
hereby reversed as regards appellants Marianito Andres alias
"Totoy" and Generoso Andres alias "Ross", who are hereby
acquitted of the crime charged with proportionate costs de
oficio. Their immediate release from confinement is hereby
ordered unless they are held for another legal cause.
Zaldivar (Chairman), Fernando, Barredo,
Antonio and Aquino, JJ., concur.
 (People v. Madera, G.R. No. L-35133, [May 31, 1974], 156 PHIL
|||

340-348)

SECOND DIVISION

[G.R. No. L-41213-14. October 5, 1976.]

JORGE P. TAN, JR., CESAR TAN, LIBRADO SODE,

TEOFANIS BONJOC, OSMUNDO TOLENTINO and
MARIANO BARTIDO, petitioners, vs. JUDGE
PEDRO GALLARDO , in his capacity as Presiding
Judge of Circuit Criminal Court, 13th Judicial District,
Tacloban City, and PEOPLE OF THE
PHILIPPINES,  respondents.
 Pelaez, Jalandoni & Adriano for petitioner Jorge P. Tan,
Jr.
K. V. Faylona & Associates for petitioner Cesar Tan.
Ruperto Kapunan, Jr. for petitioner Teofanis Bondoc.
Amadeo Seno, Artemio Derecho & Manuel Quiambao for
petitioners Librado Isode, Osmundo, Tolentino and Mariano
Bartido.
Solicitor General Estilito P. Mendoza, Assistant Solicitor
General Alicia Simpio-Diy and Solicitor Eduardo L. Kilayko for
respondents.
Estanislao A. Fernandez and Dakila F. Castro &
Associate as private prosecutors.

DECISION

ANTONIO, J  : p

In this Special Civil Action for Certorari with Prohibition,

petitioners seek the annulment of respondent Judge's Orders in
Criminal Cases Nos. CCC-XIII-50-L-S'72 and CCC-XIII-51-L-
S'72, 1 to wit: (a) Order of July 21, 1975, denying petitioners' y
motion for respondent Judge to disqualify or to inhibit himself
from hearing and acting upon their Motion for New Trial and/or
Reconsideration and Supplemental Motion for New Trial; (b)
Order of July 23, 1975, denying petitioners' Motion for New
Trial and/or Reconsideration and Supplemental Motion for New
Trial; and (c) Order of July 25, 1975, ordering the transfer of the
accused (petitioners herein) from Camp Bumpus, PC
headquarters, Tacloban City, to the National Penitentiary, New
Bilibid Prisons, Muntinlupa, Rizal. It is likewise sought, by way
of prohibition, to compel respondent Judge to desist from
further proceeding with the afore-mentioned criminal cases.  prcd
 By Resolution of this Court dated August 27, 1975, the
respondent Judge was required to file his answer within ten
(10) days from notice, and in connection therewith, a temporary
restraining order was issued to enjoin the respondent from
further proceeding with the afore-mentioned criminal cases.
The petition was subsequently amended to include the People
of the Philippines and thereafter, on January 14, 1976, the
Solicitor General, on behalf of the People of the Philippines,
submitted his Comment to the petition. The Solicitor General
informed this Court, thus: that they are "persuaded that there
are bases for stating that the rendition of respondent Judge's
decision and his resolution on the motion for new trial were not
free from suspicion of bias and prejudice. . .. Considering the
circumstances of the instant case, the seriousness of the
charges and counter-charges and the nature of the evidence on
hand to support them, we feel that respondent Judge 'appeared
to have been heedless of the oft-reiterated admonition
addressed to trial judges to avoid even the impression of the
guilt or innocence of the accused being dependent on prejudice
or prejudgment'" and, therefore, it was the submission of said
official "that the case should be remanded to the trial court for
the rendition of a new decision and with instruction to receive
additional evidence proffered by the accused with the right of
the prosecution to present rebuttal evidence as may be
warranted" and, therefore, they interpose no objection to the
remand of the aforementioned criminal cases "for the rendition
of a new decision by another trial judge, after the parties shall
have adduced such additional evidence as they may wish to
make, under such terms and conditions as this Honorable Court
may deem fit to impose." 2
On January 30, 1976, private prosecutors submitted their
Comment in justification of the challenged Orders of the
respondent Judge and objected to the remand of this case. On
February 12, 1976, the petitioners moved to strike out the
"Motion to Admit Attacked Comment" and the "Comment" of
the private prosecutor on the ground that the latter has
"absolutely no standing in the instant proceedings before this
Honorable Court and, hence, without any personality to have
any paper of his entertained by this Tribunal . . ."
The private prosecutors now contend that they are
entitled to appear before this Court, to take part in the
proceedings, and to adopt a position in contravention to that of
the Solicitor General.
The issue before Us is whether or not the private
prosecutors have the right to intervene independently of the
Solicitor General and to adopt a stand inconsistent with that of
the latter in the present proceedings.
There are important reasons which support the view that
in the present proceedings, the private prosecutors cannot
intervene independently of and take a position inconsistent
with that of the Solicitor General.
To begin with, it will be noted that the participation of the
private prosecution in the instant case was delimited by this
Court in its Resolution of October 1, 1975, thus: "to collaborate
with the Solicitor General in the preparation of the Answer and
pleadings that may be required by this Court." To collaborate
means to cooperate with and to assist the Solicitor General. It
was never intended that the private prosecutors could adopt a
stand independent of or in contravention of the position taken
by the Solicitor General. There is no question that since a
criminal offense is an outrage to the sovereignty of the State, it
is but natural that the representatives of the State should
direct and control the prosecution, As stressed in Suarez v.
Platon, et al., 3 the prosecuting officer "is the representative
not of an ordinary party to a controversy, but of a sovereignty
whose obligation to govern impartially is as compelling as its
obligation to govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case, but that
justice shall be done. As such, he is in a peculiar and very
definite sense the servant of the law, the twofold aim of which
is that guilt shall not escape or innocence suffer. He may
prosecute with earnestness and vigor — indeed, he should do
so. But, while he may strike hard blows, he is not at liberty to
strike foul ones. It is as much his duty to refrain from improper
methods calculated to produce a wrongful conviction as it is to
use every legitimate means to bring about a just one." Thus, it
was stressed in People  v. Esquivel, et al., 4  that there is an
absolute necessity for prosecuting attorneys to lay "before the
court the pertinent facts at their disposal with methodical and
meticulous attention, clarifying contradictions and filling up
gaps and loopholes in their evidence, to the end that the
court's mind may not be tortured by doubts, that the innocent
may not suffer and the guilty not escape unpunished. Obvious
to all, this is the prosecution's prime duty to the court, to the
accused, and to the state." It is for the purpose of realizing the
afore-mentioned objectives that the prosecution of offenses is
placed under the direction, control, and responsibility of the
prosecuting officer.  Cdpr

The role of the private prosecutors, upon the other hand,

is to represent the offended party with respect to the civil
action for the recovery of the civil liability arising from the
offense. This civil action is deemed instituted with the criminal
action, unless the offended party either expressly waives the
civil action or reserves to institute it separately. 5 Thus, "an
offended party may intervene in the proceedings, personally or
by attorney, specially in case of offenses which can not be
prosecuted except at the instance of the offended party. 6 The
only exception to this is when the offended party waives his
right to civil action or expressly reserves his right to institute it
after the termination of the case, in which case he lost his right
to intervene upon the theory that he is deemed to have lost his
interest in its prosecution. 7 And in any event, whether an
offended party intervenes in the prosecution of a criminal
action, his intervention must always be subject to the
direction and control of the prosecuting official .' 8 As
explained in Herrero  v. Diaz, supra, the "intervention of the
offended party or his attorney is authorized by section 15 of
Rule 106 of the Rules of Court, subject to the provisions of
section 4 of the same Rule that all criminal actions either
commenced by complaint or by information shall be
prosecuted under the direction and control  of the Fiscal."
(Emphasis supplied.)
Therefore, although the private prosecutors may be
permitted to intervene, they are not in control of the case, and
their interests are subordinate to those of the People of the
Philippines represented by the fiscal. 9 The right which the
procedural law reserves to the injured party is that of
intervening in the prosecution for the sole purpose of enforcing
the civil liability for the criminal action and not of demanding
punishment of the accused. 10 As explained in People  v.
Orais: 11
"'. . . the position occupied by the offended party is
subordinate to that of the promotor fiscal because, as the
promotor fiscal alone is authorized to represent the public
prosecution, or the People of the Philippine Islands, in the
prosecution of offenders, and to control the proceeding,
and as it is discretionary with him to institute and
prosecute a criminal proceeding, being at liberty to
commence it or not or to refrain from prosecuting it or not,
depending upon whether or not there is, in his opinion,
sufficient evidence to establish the guilt of the accused
beyond a reasonable doubt, except when the case is
pending in the Court of First Instance, the continuation of
the offended party's intervention depends upon the
continuation of the proceeding. Consequently, if the
promotor fiscal desists from pressing the charge or asks
the competent Court of First Instance in which the case is
pending for the dismissal thereof, and said court grants the
petition, the intervention of the person injured by the
commission of the offense ceases by virtue of the principle
that the accessory follows the principal. Consequently, as
the offended party is not entitled to represent the People of
the Philippine Islands in the prosecution of a public
offense, or to control the proceeding once it is
commenced, and as his right to intervene therein is subject
to the promotor fiscal's right of control, it cannot be stated
that an order of dismissal decreed upon petition of the
promotor fiscal himself deprives the offended party of his
right to appeal from an order overruling a complaint or
 information, which right belongs exclusively to the
promotor fiscal by virtue of the provisions of section 44 of
General Orders, No. 58. To permit a person injured by the
commission of an offense to appeal from an order
dismissing a criminal case issued by a Court of First
Instance upon petition of the promotor fiscal, would be
tantamount to giving said offended party of the direction
and control of a criminal proceeding in violation of the
provisions of the above-cited section 107 of General
Orders, No. 58.'"

Consequently, where from the nature of the offense, or

where the law defining and punishing the offense charged does
not provide for an indemnity, the offended party may not
intervene in the prosecution of the offense. 12
There is no question that the Solicitor General represents
the People of the Philippines or the State in criminal
proceedings pending either in the Court of Appeals or in this
Court. Thus, Section 1 of Presidential Decree No. 478,
"Defining the Powers and Functions of the Office of the
Solicitor General", provides:
"SECTION 1. Function and Organization. (1) the
Office of the Solicitor General shall represent the
Government of the Philippines, its agencies and
instrumentalities and its officials and agents in any
litigation, proceeding, investigation or matter requiring the
services of a lawyer. . . . The office of the Solicitor General
shall constitute the law office of the Government, and as
such, shall discharge duties requiring the services of a
lawyer. It shall have the following specific powers and
functions:
(a) Represent the Government in the Supreme Court
and the Court of Appeals In all criminal proceedings;
represent the Government and its officers in the Supreme
Court, the Court of Appeals, and all other courts or
tribunals in all civil actions and special proceedings in
which the Government or any officer thereof in his official
capacity is the party.
 xxx xxx xxx
(k) Act and represent the Republic and/or the people
before any court, tribunal, body or commission in any
matter, action or proceeding which, in his opinion, affects
the welfare of the people as the ends of justice may
require.
xxx xxx xxx
It is evident, therefore, that since the Solicitor General
alone is authorized to represent the State or the People of the
Philippines the interest of the private prosecutors is
subordinate to that of the State and they cannot he allowed to
take a stand inconsistent with that of the Solicitor General, for
that would be tantamount to giving the latter the direction and
control of the criminal proceedings, contrary to the provisions
of law and the settled rules on the matter.  LLphil

Moreover, the position taken by the Solicitor General in

recommending the remand of the case to the trial court is not
without any plausible justification. Thus, in support of his
contention that the rendition of the decision and the resolution
on the subsequent motions by the respondent Judge were not
free from suspicion of bias and prejudice, the Solicitor General
stated:
"In alleging bias and manifest partiality on the part of
respondent judge, petitioners assert that:
(a) Respondent judge kept improper contact with and
was illegally influenced by the Larrazabals in connection
with the decision of the two cases against petitioners
herein;
(b) In the latter part of 1973, with the trial of
the Tan cases still in progress, respondent judge
received, through one of his court stenographers, two
bottles of whisky from Mayor Iñaki Larrazabal, brother and
uncle of the deceased victims Feliciano and Francisco
Larrazabal;
(c) On one occasion, Mayor Larrazabal had a short
talk with respondent judge, after which the latter received
from one of the private prosecutors a bottle of wine
wrapped in a newspaper which was 'thick' and 'bulky' and
which allegedly contained 'something else inside';
(d) Respondent judge prepared the decision in
the Tan cases based on the memorandum of the
prosecution which was literally copied in said decision
although with some corrections; and
(e) After an alleged meeting with Mayor Iñaki
Larrazabal, respondent judge amended his already
prepared decision in the two criminal cases involved
herein by changing the penalty of double-life sentence for
the double murder charge against the petitioners to the
death penalty.
"The foregoing alleged irregularities are mainly
supported by an affidavit executed on June 26, 1975 by
Gerardo A. Makinano, Jr., court stenographer of the Circuit
Criminal Court, Tacloban City (Annex 'E', Petition). The
truth of the charges made in such affidavit are denied by
respondent judge (in his answer to the instant petition
dated October 11, 1975), who in turn claims that it was
petitioners who tried to bribe him into acquitting them in
the aforesaid criminal cases, after they were illegally
furnished a copy of the draft of his decision of conviction
by the same court stenographer Gerardo A. Makinano, Jr.
(please see Answer of respondent judge, pp. 12-13). Unlike
in the cases of Mateo  vs. Villaluz, 50 SCRA 191 (1973),
and Castillo  vs. Juan, 62 SCRA 124 (1974) relied upon
mainly by herein petitioners, the facts alleged as
constituting the grounds for disqualifying the respondent
judge in the instant petition are disputed.
"Apart from the sworn statements submitted before
this Court in support or in denial of the alleged bribery of
respondent judge, we have been informed of evidence
obtained by the National Bureau of Investigation when it
cannot appropriate for us at this time, however, and we are
unable to do so, to submit to this Court definite
conclusions on the charges and counter-charges. An
exhaustive inquiry and open hearing should perhaps
 precede the making of categorical conclusions. But we are
persuaded that there are bases for stating that the
rendition of respondent Judge's decision and his
resolutions on the motions for new trial were not free from
suspicion of bias and prejudice (See Martinez  vs.
Gironella, 65 SCRA 245 [July 22, 1975]).
"Considering the circumstances of the instant case,
the seriousness of the charges and counter-charges and
the nature of the evidence on hand to support them, we
feel that respondent Judge 'appeared to have been
heedless to the oft-reiterated admonition addressed to trial
judges to avoid even the impression of the guilt or
innocence of the accused being dependent on prejudice or
prejudgment (Fernando, J., Concurring
opinion, Martinez  vs. Gironella, supra, at 252 . . ."

It is undisputed that the sole purpose of courts of justice is to

enforce the laws uniformly and impartially without regard to
persons or their circumstances or the opinions of men. A judge,
according to Justice Castro, now Chief Justice of this Court,
should strive to be at all times "wholly free, disinterested,
impartial and independent. Elementary due process requires a
hearing before an impartial and disinterested tribunal. A judge
has both the duty of rendering a just decision and the duty of
doing it in a manner completely free from suspicion as to its
fairness and as to his integrity." 13 Thus, it has always been
stressed that judges should not only be impartial but should
also appear impartial. For "impartiality is not a technical
conception. It is a state of mind" 14 and, consequently, the
"appearance of impartiality is an essential manifestation of its
reality." 15 It must be obvious, therefore, that while judges
should possess proficiency in law in order that they can
competently construe and enforce the law, it is more important
that they should act and behave in such a manner that the
parties before them should have confidence in their
impartiality.
 cdrep

It appears, however, that respondent Judge is no longer in

the judicial service, hence, the question as to whether or not
 he should be disqualified from further proceeding with the
aforementioned criminal cases has already become moot.
WHEREFORE, this Court grants the petition and hereby
remands the case to the trial court in order that another Judge
may hear anew petitioners' motion for new trial and to resolve
the issue accordingly on the basis of the evidence. No special
pronouncement as to costs.
Fernando, (Chairman), Barredo, Aquino and Concepcion,
Jr. JJ.,  concur.
 (Tan, Jr. v. Gallardo, G.R. No. L-41213-14, [October 5, 1976], 165
|||

PHIL 288-300)

SECOND DIVISION

[G.R. Nos. L-33252-54. January 20, 1978.]

THE PEOPLE OF THE PHILIPPINES,  plaintiff-

appellee, vs. LICERIO P. SENDAYDIEGO, JUAN SAMSON
and ANASTACIO QUIRIMIT, defendants. JUAN SAMSON,
defendant-appellant. PROVINCE OF PANGASINAN,
Offended Party-Appellee, vs. HEIRS OF LICERIO
P. SENDAYDIEGO,  defendants-appellants.

Norberto J. Quisumbing  for appellant Sendaydiego.

Donato J. Rillera  for appellant Samson.
Office of the Solicitor General  for appellee.

SYNOPSIS
 Licerio P. Sendaydiego, provincial treasurer of
Pangasinan, in conspiracy with Juan Samson, as an employee
of a lumber store, and with Anastacio Quirimit, the provincial
auditor as an accompliance, used six forged provincial
vouchers to embezzle from the road and bridge fund the total
sum of P57,048.23. They were charged with malversation
through falsification. After trial the lower court acquitted the
auditor and found Sendaydiego and Samson guilty as
principals of malversation through falsification of public
documents.
Pending appeal, Sendaydiego died. By resolution of the
Supreme Court, his appeal as to this Criminal liability was
dismissed, but the court resolved to continue exercising
appellate jurisdiction over his possible civil liability for the
monetary claims of the province of Pangasinan arising from the
alleged criminal acts complained of, as if no criminal case had
been instituted against him, thus making applicable, in
determining his civil liability, Article 30 of the Civil Code.The
title of the case was thus amended to show its civil aspect.
The Supreme Court held that the crime committed are not
complex, but separate crimes of falsification and malversation;
because in the six vouchers the falsification was used to
conceal the malversation. Each falsification and each
malversation constituted independent offenses which must be
punished separately. Since Samson, a private person,
conspired with an accountable public officer in committing
malversation, he is also guilty of malversation.
Samson and the estate of the late Sandaydiego were held
solidarily liable to indemnify the province of Pangasinan.

SYLLABUS

1. CRIMINAL LAW; DEATH; APPELLANT'S DEATH

PENDING APPEAL EXTINGUISHES HIS CRIMINAL LIABILITY. —
The death of appellant during the pendency of his appeal or
before the judgment of conviction rendered against him by the
lower court became final and executory extinguished
his criminal liability, meaning his obligation to serve the
personal or imprisonment penalties and his liability to pay the
fines or pecuniary penalties.
2. ID.; ID.; CIVIL LIABILITY SURVIVES DEATH OF
APPELLANT. — Where the death of the accused occurred after
final judgment was rendered by the Court of First Instance,
which convicted him of the crime charged and ordered him to
indemnify the offended party, the claim of the offended party
for civil liability survives.
3. ID.; CIVIL ACTION DEEMED INSTITUTED WITH
CRIMINAL ACTION ABSENT EXPRESS WAIVER OR
RESERVATION. — The civil action for the civil liability is
deemed impliedly instituted with the criminal action in the
absence of express waiver or its reservation in a separate
action. The civil action for the civil liability is separate and
distinct from the criminal action.
4. ID.; APPEAL; APPELLATE COURT MAY CONTINUE
EXERCISING APPELLATE JURISDICTION OVER ACCUSED'S
POSSIBLE CIVIL LIABILITY, NOTWITHSTANDING DISMISSAL OF
APPEAL ON ACCOUNT OF DEATH. — Notwithstanding the
dismissal of the appeal of deceased appellant insofar as his
criminal liability is concerned, the appellate court may
continue to exercise appellate jurisdiction over his possible
civil liability for the money claims of complainant arising from
the alleged criminal acts complained of, as if no criminal case
had been instituted against him, thus making applicable, in
determining his civil liability, Article 30 of the Civil Code.For
that purpose the heirs of administrator or administrator
deceased's estate will be substituted for the deceased insofar
as the civil action for the civil liability is concerned (Secs. 16
and 17, Rule 3, Rules of court); and the title of the criminal
case should be amended to show its civil aspect.
5. CRIMINAL PROCEDURE; PRIVATE PROSECUTOR;
CRIMINAL ACTION MUST BE PROSECUTED UNDER THE
DIRECTION AND CONTROL OF THE FISCAL. — Where the record
shows that at every hearing the provincial fiscal, the city fiscal
or an assistant fiscal were present together with the private
prosecutor, there was substantial compliance with the rule
that the criminal action should be "prosecuted under the
direction and control of the fiscal" and that "the provincial
fiscal shall represent the province" in any court. (Sec. 4, Rule
110, Rules of Court; sec. 1683, Revised Administrative Code.)
6. ID.; JUDGES; DISQUALIFICATION; JUDGE WHO
CONDUCTED PRELIMINARY INVESTIGATION NOT
DISQUALIFIED TO TRY CASE ON THE MERITS. — Section 13,
Rule 112 of the Rules of Court, in allowing a Court of First
Instance to conduct a preliminary investigation, does not
disqualify it from trying the case it had found probable cause
and after the fiscal, as directed by the Court, had filed the
corresponding information. The rule assumes that the Judge,
who conducted the preliminary investigation, could impartially
try the case on the merits.
7. ID.; ID.; ID.; ID. — The case of a Judge of the Court of
First Instance, who conducts a preliminary investigation and
then tries the case on the merits, is similar to a situation where
an inferior court conducts a preliminary investigation of a grave
or less grave offense falling within the concurrent jurisdiction
of the Court of First Instance and the inferior court. In such a
case, the inferior court after terminating the preliminary
investigation is not obligated ( por delicadeza) to remand the
case to the Court of First Instance for trial. The inferior court
has the option to try the case on the merits. The assumption is
that the inferior court can try the case without any ingrained
bias or undue prejudice.
8. EVIDENCE; SIGNATURES MAY BE DELIBERATELY
DISGUISED. — Signatures may be deliberately disguised with
the dishonest intention of denying the same as and when
necessary.
9. ID.; PERSON IN POSSESSION OF FALSIFIED
DOCUMENT IS PRESUMED TO BE THE AUTHOR OF THE
FALSIFICATION. — The rule is that if a person had in his
possession a falsified document and he made use of it (uttered
it), taking advantage of it and profiting thereby, the
presumption is that he is the material author of the
falsification. This is especially true if the use of uttering of the
forged documents was so closely connected in time with the
forgery that the user of possessor may be proven to have the
capacity of committing the forgery, or to have close connection
with the gorgers, and therefore, had complicity in the forgery.
10. ID.; FALSIFICATION; USE OF DIFFERENT FORMS OF
SIGNATURES. — The deviousness of falsification perpetrated
by the accused is shown by the fact that he uses one form of
signature for his crooked transactions with the provincial
government and another form of signature for his valid
transactions or papers.
11. ID.; ID.; SEPARATE MALVERSATIONS AND
FALSIFICATIONS. — If the falsification is resorted to for the
purpose of hiding the malversation, the falsification and
malversation are separate offenses. Thus, where the provincial
treasurer, as the custodian of the money forming part of the
road and bridge fund, effected payments to his co-accused for
construction materials supposedly delivered to the province for
various projects when in fact no such materials were delivered,
and to camouflage or conceal the defraudation, the accused
used six vouchers which had genuine features and which
appear to be extrinsically authentic but which were
intrinsically fake, the crimes committed are not complex but
separate crimes of falsification and malversation. The
falsifications cannot be regarded as constituting one
continuing offense impelled by a single criminal impulse. Each
falsification of a voucher constitutes one crime. The
falsification of six couchers constitutes six separate or distinct
offenses; and each misappropriation as evidenced by a
provincial voucher constitutes a separate offense.
12. ID.; MALVERSATION; CRIMINAL LIABILITY; PRIVATE
PERSON CONSPIRING WITH PUBLIC OFFICER. — A private
person conspiring with an accountable officer in committing
malversation is also guilty of malversation. A different rule
prevails with respect to a stranger taking part in the
commission of parricide or qualified theft. In such cases, the
stranger is not guilty of parricide or qualified theft but only of
murder or homicide, as the case may be, and simple theft.
13. PENALTY; SERVICE OF MULTIPLE PENALTIES. — In
the service of twelve penalties meted to defendant, the
threefold limit provided for in article 70 of the Revised Penal
Code should be observed, meaning that the maximum penalty
that he should serve is three times the indeterminate sentence
of twelve (12) years to seventeen (17) years, the severest
penalty imposed on him, or thirty-six (36) years to fifty-one (51)
years. The maximum duration of his sentence should not
exceed forty (40) years.
BARREDO, J., concurring:
1. APPEAL; DISMISSAL OF APPEAL DUE TO DEATH OF
ACCUSED FROM A JUDGMENT OF CONVICTION, AMOUNTS TO
ACQUITTAL. — The dismissal of an appeal, due to death of
appellant, from a judgment of conviction by a trial court does
not result in the affirmance of such conviction, but amounts to
an acquittal of the appellant based on the constitutionally
mandated presumption of innocence in his favor that can be
overcome only by a finding of guilt, something that his death
prevents the court from making. Death extinguishes the crime,
and corollarily, all its consequence.
2. ID.; ID.; ESTATE OF ACCUSED NOT EXONERATED
FROM CIVIL LIABILITY. — The dismissal of an appeal in
criminal cases, by reason of appellant's death, amounts to his
acquittal and carries with it exemption from or extinction of
the civil liability as if the court had held that the action from
which the civil action might arise did not exist (Sec. 2(4), Rule
111). But this does not exonerate the estate from another kind
of civil liability for indemnity, restitution, or reparation, for
under the pertinent provisions of Human Relations of the Civil
Code.Particularly Article 30, the total absolution of appellant
based on his death is immaterial, since this provision
contemplates prosecution of civil liability arising from a
criminal offense without the need of any criminal proceeding to
prove the commission of the crime as such, that is, without
having to prove the criminal liability of defendant so long as his
act causing damage or prejudice to the offended party is
proven by preponderance of evidence.
3. ACTIONS; EFFECT OF DEATH OF ACCUSED BEFORE
CONVUCTION ON THE CIVIL ACTION FOR DAMAGES. — While
Article 29 of the Civil Code unequivocally authorizes the filing
of "a civil action for damages for the same act or omission," It
does not say that the civil action joined with the criminal
action, as provided for in Section 1 of Rule 111, shall survice
and be the one continued. What is left to the offended party
after the death of the accused before conviction is the right to
institute a civil action for damages for the same act or
omission pursuant to Article 29 and 30 of the Civil Code and
Sections 2 and 3(c) of Rule 111 of the Rules of Court.
4. APPEALS; DISMISSAL OF APPEAL IN CRIMINAL CASES
BY REASON OF APPELLANT'S DEATH. — When appeal in
criminal cases have to be dismissed by reason of the death of
the appellant, it is not proper to qualify such dismissal as
limited to that of the criminal liability of the appellant. The
dismissal should be unqualified and that the offended parties
concerned should be left to pursue their remedies, if they so
desire, in the appropriate civil action contemplated both in
the Civil Code and in Rule 111.
5. OBLIGATION; SIMULTANEOUS LIABILITY OF ACTOR
FOR THE SAME ACT. — A party aggrieved by an act criminal in
nature has the right to indemnity, restitution or reparation,
notwithstanding the absence or failure of the usual criminal
prosecution, in view of the provisions of the pertinent articles
of the Civil Code on Human Relations and Section 2 of Rule
111. The same act or set of facts can be the subject of
obligations arising at the same time thru different modes
contemplated in Article 1157 of the Civil Code.Thus, that an
act of omission is punished by law, thereby making the actor
 civilly liable therefor, does not exclude simultaneous liability of
the actor for the same act viewed also as one giving rise to an
obligation under another law, and/or under a contract, quasi-
contract or quasi-delict, with the qualification that the
aggrieved party cannot recover damages more than once for
the same act or omission (Art. 2177, Civil Code).

DECISION

AQUINO, J  :p

In these three cases of malversation through falsification,

the prosecution's theory is that in 1969 Licerio
P. Sendaydiego, the provincial treasurer of Pangasinan, in
conspiracy with Juan Samson y Galvan, an employee of a
lumber and hardware store in Dagupan City, and with Anastacio
Quirimit, the provincial auditor, as an accomplice, used six (6)
forged provincial vouchers in order to embezzle from the road
and bridge fund the total sum of P57,048.23.
The provincial voucher involved in these cases has
several part. In the upper part with the legend "ARTICLE OR
SERVICE" the nature of the obligation incurred is indicated.
That part is supposed to be signed by two officials of the
provincial engineer's office and by the governor's
representative.
The middle part of the voucher contains five numbered
printed paragraphs. Paragraph 1 is a certificate to be signed by
the creditor. It is stated therein that the creditor vouches that
the expenses "were actually and necessarily incurred". In the
instant cases paragraph 1 was not signed presumably because
it is not relevant to the purchase of materials for public works
projects.
Paragraph 2 is a certification that the expenses are
correct and have been lawfully incurred. It is signed by the
provincial engineer.
 Paragraph 3 contains these words: "Approved for pre-audit
and payment, appropriations and funds being available
therefor." This is signed by the provincial treasurer.
Paragraph 4 is a certification which, as filled up in Exhibit
K, Voucher No. 10724 dated February 28, 1969, reads:  LibLex

"I certify that this voucher has been pre-audited and

same may be paid in the amount of sixteen thousand seven
hundred twenty-seven and 52/100 (P16,727.52) in cash or in
check, provided there is sufficient fund to cover the
payment."

This is signed by the auditor.

Paragraph 5 is a certification signed by the provincial
treasurer that the account mentioned in the provincial
engineer's certification "was paid in the amount and on the
date shown below and is chargeable as shown in the summary
hereof. . . ." It may be noted that the provincial treasurer signs
two parts of the voucher.
Following paragraph 5, and as referred to therein, is the
receipt of payment signed by the creditor. As accomplished in
Exhibit K, the receipt reads (it was signed according to the
prosecution by Juan Samson, a point which is disputed by him):
"Received this 31st day of March, 1969, from L.
P. Sendaydiego, Treasurer, Province of Pangasinan, the
sum of sixteen thousand seven hundred twenty-seven
pesos & 52/100 (16,727.52) in full payment of the above
stated account, which I hereby certify to be correct. Paid
by Check No. ...........
CARRIED CONSTR. SUPPLY
CO.
By:
(Sgd.) JUAN SAMSON"
According to the prosecution, Samson also signed on the
left margin of the six vouchers below the stamped words:
"Presented to Prov. Treasurer. By Juan Samson."
 Voucher No. 10724 (Exh. K). — This provincial voucher,
dated February 28, 1969, evidences the payment of P16,727.52
to the Carried Construction Supply Co. of Dagupan City for
lumber and hardware materials supposedly used in the repair of
the bridge in Barrio Libertad at the Umingan-Tayug road in
Pangasinan along the Nueva Ecija boundary (Exh. K). The
voucher makes reference to invoice No. 3327 and other
supporting papers.
The falsity of the provincial voucher is proven by the
following circumstances:
(a) That there was no project for the repair of the bridge
at Barrio Libertad (p. 1; Exh. Z).
(b) That the amount of P16,727.52 was never received by
the Carried Construction Supply Co. The alleged official
receipts No. 3025 of the company dated March, 1969 (Exh. K-6)
is forged.
(c) That the lumber and materials mentioned in Exhibit K
were never delivered by the company to the provincial
government.
(d) That in the provincial voucher, Exhibit K, and in the
supporting requisition and issue voucher (RIV) No. 2206 dated
January 29, 1969 (Exh. A), covering the same lumber and
hardware materials, the signatures of the following officials
were forged: Salvador F. Oropilla, senior civil engineer; Rodolfo
P. Mencias, supervising civil engineer; Victoriano M. Servilleja,
acting provincial engineer, and Ricardo B. Primicias,, chief of
equipment of the governor's office. These four officials denied
that their signatures in the two vouchers, Exhibits A and B, are
their genuine signatures.
(e) That the imprint of the rubber stamp on Exhibits A and
B, containing the words "Approved: For and By Authority of the
Governor (signed) Ricardo B. Primicias, Chief of Equipment", is
not the imprint of the genuine rubber stamp used in Primicias'
office.
 (f) That charge invoice No. 3327 of the Carried
Construction Supply Co. dated February 18, 1969, containing a
description and the prices of the lumber and hardware
materials (Exh. B), is fake because, according to Ambrosio
Jabanes, the company's assistant manager, the company's
invoice No. 3327 was issued to the Mountain Agricultural
College (Exh. II-1). Oropilla denied that his alleged signature on
Exhibit B is his signature.
(g) That three other documents, supporting the provincial
voucher (Exh. K), were also forged. Those documents are the
taxpayer's certificate dated February 10, 1969 (Exh. C) stating
that no tax is due on the goods sold in the fake invoice No.
3327 and the two certificates as to the samples of lumber
allegedly purchased from the Carried Construction Supply Co.,
(Exh. D and E). Narciso P. Martinez, a district forester, denied
that his signatures in Exhibits D and E are his genuine
signatures.
(h) That Angelo C. Manuel, the checker of the provincial
auditor's office, denied that his signature on the left margin is
his signature (Exh. A-10).
The forged character of provincial voucher No. 10724
(Exh. K) is incontrovertible.
Other five forged vouchers. — Five other provincial
vouchers evidencing supposed payments of certain amounts to
the Carried Construction Supply Co. for lumber and hardware
materials supposedly used in the repair of other bridges were
also falsified. These five vouchers are the following:
(1) Voucher No. 11995 dated April 29, 1969
evidencing the payment of P14,571.81 for lumber and
hardware materials allegedly used in the repair of Bayaoas
bridge at the Urbiztondo-Pasibi Road (Exh. O).
(2) Voucher No. 11869 dated April 15, 1969
evidencing the payment of P5,187.28 for lumber and
hardware materials allegedly used in the repair of the
Panganiban bridge at the Umingan-Tayug Road (Exh. P).
 (3) Voucher No. 11870 dated April 28, 1969
evidencing the payment of P6,290.60 for lumber and
hardware materials allegedly used in the repair of the
Cabatuan bridge at the Umingan-Guimba Road (Exh. Q).
(4) Voucher No. 11871 dated April 15, 1969
evidencing the payment of P9,769.64 for lumber and
hardware materials allegedly used in the repair of the
Casabar bridge at the Binalonan-San Manuel Road (Exh. R).
(5) Voucher No. 11872 dated April 15, 1969
evidencing the payment of P4,501.38 for lumber and
hardware materials allegedly used in the repair of the
Baracbac bridge at the Umingan-Guimba Road (Exh. S).

As in the case of voucher No. 10724 (Exh. K), Oropilla,

Mencias, and Primicias declared that their signatures in the
said five vouchers are not their genuine signatures. Samson,
who hand-carried the said vouchers for processing, did not turn
over to the provincial auditor's office the papers supporting the
said vouchers after the vouchers had been pre-audited. Hence,
those supporting papers could not be presented in evidence.
Jabanes, the aforementioned assistant manager of the
Carried Construction Supply Co., testified that the lumber and
hardware materials mentioned in the five vouchers were never
delivered by his company to the provincial government. The
charge invoices mentioned in the said vouchers were cancelled
invoices issued to the Mountain Agricultural College. The
projected repairs of the bridges were fictitious.
 llcd

The company's cashier testified that the company never

received the payments for the lumber and hardware materials.
The receipts evidencing payments (Exh. K-6, KK to KK-4) are
fake official receipts. The cashier produced in court the
genuine official receipts (Exh. LL to LL-7) bearing the serial
numbers of the fake receipts. The genuine receipts do not refer
to transactions with the provincial government.
Samson played a stellar role in the processing of the six
vouchers. He used to be an employee of the provincial
treasurer's office. He resigned and worked with several firms
doing business with the provincial government. In 1969 he was
the collector of the Carried Construction Supply Co. He
represented that firm in its dealings with the offices of the
governor, provincial auditor, provincial engineer and provincial
treasurer. He was personally known to those provincial
officials and the employees of their offices (21-
22 Sendaydiego's brief).
The six (6) forged provincial vouchers, with their
respective supporting papers, were hand-carried by Samson.
He delivered the papers to Carmencita Castillo, the ledger
clerk in the provincial engineer's office, for recording and for
her signature (Exh. DD).
Thereafter, Samson brought the papers to the provincial
treasurer's office. Marcelo Crusada, a laborer in that office who
performed the chore of recording the vouchers and payrolls,
recorded Vouchers Nos. 11869, 11871 and 11872 (Exh. P, R,
and S). Crusada's initials appear on the upper lefthand corner
of the said vouchers with the date "4/17/69"
Samson signed on the left margin of the vouchers to
indicate that he presented them to the provincial treasurer's
office. Crusada said that after Samson had presented the said
papers to him, Samson brought them to Ricardo Baraan, the
bookkeeper of the provincial treasurer's office, for processing
and for the latter's signature (Exh. WW).
From Baraan's office, Samson hand-carried the vouchers
to the provincial auditor's office. He asked Virginia Cruz, a
clerk, to record the same (Exh. CC).
Afterwards, Samson asked Donato Rosete, the assistant
provincial treasurer, to initial the vouchers. After Rosete had
initialled the vouchers, Samson went to the provincial
treasurer's office where the amounts covered by the vouchers
were paid by Sendaydiego to him in cash (instead of by check)
as representative of the Carried Construction Supply Co. (Exh.
EE). He received the payments on March 31 and April 29 and 28
(four payments on that date) as shown on the face of the
vouchers.
The signatures of Sendaydiego and Quirimit, the auditor,
on the said six vouchers are admittedly
authentic. Sendaydiego signed the vouchers ahead of Rosete,
his assistant. Sendaydiego's defense is that he signed the
vouchers in the honest belief that the signatures therein of the
provincial officials concerned were genuine because the
vouchers had been pre-audited and approved by the auditor.
Samson denied the authenticity of his two signatures on
each of the six vouchers showing that he received
from Sendaydiego the amounts covered thereby as
representative of the lumber and hardware firm (Exh. OO to TT)
and that he presented the vouchers to the provincial
treasurer's office (Exh. 6-12 — Samson). Sendaydiego testified
that Samson's signatures are genuine.
In connection with the six vouchers, Sendaydiego,
Samson and Quirimit were charged with malversation through
falsification in three cases docketed as follows:
1. Criminal Case No. 23349 involving provincial
voucher No. 10724 dated February 28, 1969 in the sum of
P16,727.52 (Exh. K), L-33252.
2. Criminal Case No. 23350 involving provincial
vouchers Nos. 11869, 11870, 11871 dated April 15 (two
dates) 28 and 15, 1969 for the respective amounts of
P5,187.28, P6,290.60, P9,769.64 and P4,501,38 (four
vouchers, Exh. P, Q, R and S), now L-33253.
3. Criminal Case No. 23351 involving provincial
voucher No. 11955 dated April 29, 1969 in the sum of
P14,571.81 (Exh. O), now L-33254.

After trial, the lower court acquitted the auditor, Quirimit

and found Sendaydiego and Samson guilty of malversation
through falsification of public or official documents, imposing
each of the following penalties:
 (1) In Criminal Case No. 23349, an indeterminate
sentence of twelve years, ten months and twenty-one-days,
as minimum, to eighteen years, two months and twenty-
one days of reclusion temporal, as maximum, and a fine of
P16,727.52 and to indemnify solidarily the provincial
Government of Pangasinan in the same amount;
(2) In Criminal Case No. 23350, the penalty
of reclusion perpetua, and a fine of P29,748.90 and to
indemnify solidarily the provincial government of
Pangasinan in the same amount; and
(3) In Criminal Case No. 23351, an indeterminate
sentence of twelve years, ten months and twenty-one days,
as minimum, to eighteen years, two months and twenty
one days of reclusion temporal, as maximum, and a fine of
P14,571.81 and to indemnify solidarily the provincial
government of Pangasinan in the same amount.

Sendaydiego and Samson appealed to this Court.

Sendaydiego died on October 5, 1976. His appeal as to his
criminal liability was dismissed. Death extinguished his
criminal liability but his civil liability remained. The resolution
of July 8, 1977 dismissing Sendaydiego's appeal reads as
follows: prcd

"The death of appellant Sendaydiego during the

pendency of his appeal or before the judgment of
conviction rendered against him by the lower court
became final and executory extinguished his criminal
liability, meaning his obligation to serve the personal or
imprisonment penalties and his liability to pay the fines or
pecuniary penalties (Art. 89[1], Revised Penal Code; 1
Viada, Codigo Penal, 4th Ed., 565).
"The claim of complainant Province of Pangasinan for
the civil liability survived Sendaydiego because his
death occurred after final judgment was rendered by the
Court of First Instance of Pangasinan, which convicted him
of three complex crimes of malversation through
falsification and ordered him to indemnify the Province in
the total sum of P61,048.23 (should be P57,048.23).
 "The civil action for the civil liability is deemed
impliedly instituted with the criminal action in the absence
of express waiver or its reservation in a separate action
(Sec. 1, Rule 111 of the Rules of Court). The civil action for
the civil liability is separate and distinct from the criminal
action (People and Manuel vs. Coloma, 105 Phil. 1287;
Roa vs. De la Cruz, 107 Phil. 8).
"'When the action is for the recovery of money' 'and
the defendant dies before final judgment in the Court of
First Instance, it shall be dismissed to be prosecuted in the
manner especially provided' in Rule 87 of the Rules of
Court (Sec. 21, Rule 3 of the Rules of Court).
"The implication is that, if the defendant dies after a
money judgment had been rendered against him by the
Court of First Instance, the action survives him. It may be
continued on appeal (Torrijos vs. Court of Appeals, L-
40336, October 24, 1975; 67 SCRA 394).
"The accountable public officer may still be civilly
liable for the funds improperly disbursed although he has
no criminal liability (U. S. vs. Elvina, 24 Phil. 230;
Philippine National Bank vs. Tugab, 66 Phil. 583).
"In view of the foregoing, notwithstanding the
dismissal of the appeal of the
deceased Sendaydiego insofar as his criminal liability is
concerned, the Court Resolved to continue exercising
appellate jurisdiction over his possible civil liability for the
money claims of the Province of Pangasinan arising from
the alleged criminal acts complained of, as if no criminal
case had been instituted against him, thus making
applicable, in determining his civil liability, Article 30 of
the Civil Code (Note: The lower court had issued an order
of attachment against him on January 13, 1970 for the sum
of P36,487 and in the brief for said appellant, there is no
specific assignment of error affecting the civil liability
fixed by the trial court.) and, for that purpose, his counsel
is directed to inform this Court within ten (10) days of the
names and addresses of the decedent's heirs or whether or
not his estate is under administration and has a duly
 appointed judicial administrator. Said heirs or
administrator will be substituted for the deceased insofar
as the civil action for the civil liability is concerned (Secs.
16 and 17, Rule 3, Rules of Court). According
to Sendaydiego's brief, he had a wife and ten children
named Arturo, Licerio, Jr., Prospero, Regulo, Eduardo,
Cesar, Nola, Aida, Wilfredo and Manolo (deceased).
"The title of this case should be amended to show its
civil aspect by adding thereto the following: 'Province of
Pangasinan vs. Heirs of Licerio P. Sendaydiego.'"

Sendaydiego's appeal will be resolved only for the purpose

of showing his criminal liability which is the basis of the civil
liability for which his estate would be liable.
Sendaydiego's appeal; civil liability of his estate . — In
view of Sendaydiego's death, it is not necessary to resolve his
first two assignments of error, wherein he assails the
imposition of reclusion perpetua as a cruel and unusual
penalty and wherein it is argued that there is no complex crime
of malversation through falsification committed by negligence.
In the third assignment of error, it is contended that the
trial court erred in allowing private prosecutors Millora and
Urbiztondo to prosecute the case, thereby allegedly subjecting
the accused to proceedings marked by undue publicity, pre-
judgment, bias and political self-interest.
Atty. Vicente D. Millora, a senior member of the provincial
board actually handled the prosecution of the case from the
preliminary investigation, which started on June 5, 1969, up to
the termination of the trial on July 29, 1970.
At the commencement of the preliminary investigation,
the counsel for the accused auditor inquired whether Atty.
Millora was authorized by the provincial board to act as private
prosecutor in representation of the province of Pangasinan, the
offended part. Atty. Millora replied that there was a board
resolution designating him as private prosecutor.
 
 The acting provincial commander, who filed the
complaints, manifested to the trial court that he had authorized
Atty. Millora to act as private prosecutor (4-8 tsn June 5, 1969).
Another defense counsel filed a written motion to inhibit
Millora and the others as private prosecutors. The lower court
denied the motion in its order of June 18, 1969 (p. 40, Record of
Criminal Case No. 23350).
After the termination of the preliminary investigation
conducted by the lower court, the provincial fiscal of
Pangasinan and the city fiscal of Dagupan City filed three
informations against the accused all dated November 4, 1969.
At the commencement of the trial on February 23, 1970
the city fiscal, an assistant provincial fiscal, and Atty. Millora,
the private prosecutor, appeared for the prosecution. The city
fiscal moved "that the private prosecutor (Millora) be
authorized to conduct the examination subject to our (the
fiscal's) control and supervision". The trial court granted the
motion (7 tsn). prcd

At the hearing on April 23, 1970 the same city fiscal

moved that Atty. Urbiztondo be authorized to examine the
prosecution witnesses under his supervision and control. The
trial court granted the motion (155 tsn).
The record shows that at every hearing the provincial
fiscal, the city fiscal or an assistant fiscal were present
together with the private prosecutor.
Under the foregoing circumstances, we believe that there
was substantial compliance with the rule that the criminal
action should be "prosecuted under the direction and control of
the fiscal" and that "the provincial fiscal shall represent the
province" in any court (Sec. 4, Rule 110, Rules of Court; sec.
1683, Revised Administrative Code).
The observation of Sendaydiego's counsel, that the
imposition of reclusion perpetua "could have been the result
of the undue publicity, prejudgment, bias and political self-
interest which attended the proceedings", is not well founded.
The trial court's decision dispels any doubt as to its
impartiality. The evidence in the three cases is mainly
documentary. The unassailable probative value of the
documents involved. rather than bias and prejudice, was the
decisive factor on which the trial court anchored the judgment
of conviction.
Moreover, as already adverted to, Sendaydiego's death
had rendered moot the issue as to the propriety of the
imposition of reclusion perpetua. And, as will be shown
later, reclusion perpetua cannot be imposed in these cases
because the crimes committed were not complex.
The other seven assignments of error made
by Sendaydiego's counsel refer to the trial court's conclusion
that Sendaydiego and Samson are guilty beyond reasonable
doubt of malversation through falsification or, specifically, that
the provincial treasurer, in signing the six vouchers, evinced
"malice or fraud and that there must have been connivance
between" the two.
Several circumstances indicate
that Sendaydiego conspired with Samson. Donato N. Rosete,
the assistant provincial treasurer, testified that, contrary to the
usual procedure, he affixed his initial to paragraph 3 of the
vouchers after Sendaydiego had signed it. Rosete adhered to
that unusual procedure because the interested party, Samson,
who hand carried the vouchers, approached Rosete after he
(Samson) had conferred with the provincial treasurer and
Samson told Rosete to initial the voucher because it
was areglado na (already settled) since the treasurer had
already signed the voucher (54 tsn July 3, 1969).
Rosete's testimony and affidavit confute
appellant Sendaydiego's contention that the trial court erred in
finding that he signed the questioned vouchers before Rosete
had placed his initial in them. After the treasurer had signed
the voucher, Rosete's duty to initial it was only ministerial (75
tsn July 3, 1969).
 The bookkeeper in the treasurer's office testified that he
indicated in the vouchers that the amounts covered thereby
should be paid in cash. That indication was made by means of
the symbol "A-1-1" placed at the bottom of the vouchers under
the column "Account Number". The bookkeeper was instructed
by Samson to place that symbol. Samson told him that he
(Samson) had an understanding with
Treasurer Sendaydiego that the payment should be made in
cash. There were instances when the treasurer insisted on
payment by check to creditors other than Juan Samson.
The cash payments were made to Samson in the inner
office of the provincial treasurer where the cashier was
summoned to make the cash payments (11-12 tsn July 9, 1969;
p. 11, Exh. EE). As noted by the trial court, it was unusual that
the payments should be made in the treasurer's office when
that was a ministerial chore of the cashier.
The cash payments were made to Samson even if Samson
had no power of attorney from the Carried Construction Supply
Co. authorizing him to receive the payments. The space in the
vouchers for the signature of the witness, who should be
present when the payments were received, was blank. The
treasurer did not bother to have a witness to attest to the
payments or to require the exhibition of Samson's residence
certificate.
Another apt observation of the trial court is that the
forged character of the six vouchers would have been
unmasked by the supposed creditor, Carried Construction
Supply Co., if the payments had been made by means of
checks. The company on receiving the checks would have
returned them to the treasurer because it knew that there was
no reason to make any payments at all. The trial court said that
the cash payments prove Sendaydiego's collusion with
Samson.
Sendaydiego's counsel assails the lower court's finding
that there was a conspiracy between the provincial treasurer
and Samson as shown by the fact that the amounts covered by
the vouchers were paid to Samson by the cashier in the
treasurer's inner office. That point was testified to by Rosete,
the assistant provincial treasurer.
The cashier, Napoleon Ulanday, would have been the best
witness on how and where the payments were made. However,
Ulanday died before the preliminary investigation was started.
On May 27, 1969, after the anomalies were unearthed, he wrote
a letter to the provincial treasurer, stating that he paid to
Samson the amounts covered by five vouchers in the presence
of Salazar K. Misal and Josefina E. Pulido (Exh. 13).
Rosete was in a position to state that the cash payments
were made to Samson in the treasurer's inner office because
his table was near the main door of the treasurer's office or
was about fifteen meters away (18 tsn). Rosete always knew
when the cashier went to the treasurer's office because the
cashier was summoned by means of a buzzer (long buzz), and
when the cashier came out of the treasurer's office, he would
be holding the voucher (12-13 tsn).
Sendaydiego's counsel stressed that no gross negligence
can be imputed to the treasurer (malversation is a crime which
can be committed by means of dolo or culpa and the penalty
in either case is the same). This argument does not deserve
serious consideration because the facts proven by the
prosecution show that he had a tieup with Samson and that he
acted maliciously in signing the six questioned vouchers.
The last contention put forward for Sendaydiego is that,
because the trial court acquitted the auditor, then the
treasurer's exoneration follows as a matter of course. We see
no merit in that contention because the evidence for the
prosecution against Sendaydiego is not the same as its
evidence against the auditor. For that reason, the auditor was
charged only as an accomplice, whereas, the treasurer was
charged as a principal. The auditor based his defense on the
undeniable fact that the treasurer had approved the six
vouchers "for pre-audit and payment" before they were passed
upon by the auditor. In short, the auditor was misled by the
treasurer's certification which the auditor apparently assumed
to have been made in good faith when in truth it was made in
bad faith.
We are convinced after a minutes examination of the
documentary and oral evidence and an unprejudiced
consideration of the arguments of Sendaydiego's learned
counsel that his criminal liability was established beyond
reasonable doubt and, therefore, the civil liability of his estate
for the amounts malversed was duly substantiated.
Samson's appeal. — Samson's brief has no statement of
facts. He contends that the trial court erred in disregarding the
expert testimony that his signatures on the vouchers are not
his signatures; in finding that he forged the vouchers and
received the proceeds thereof, and in relying on circumstantial
evidence as proof of conspiracy.
As a preliminary issue, Samson argues that Judge Eloy B.
Bello should have inhibited himself "in fairness to the accused,
in the interest of justice, and as a gesture of delicadeza"
because he had conducted the preliminary investigation.  LexLib

Our searching study of the record fails to sustain

Samson's insinuation that he was prejudiced by the fact that
the Judge, who conducted the preliminary investigation, was
the one who tried the case and convicted him. Judge Bello
tried the case fairly. His conduct of the trial does not show that
he had already prejudged their guilt.
Section 13, Rule 112 of the Rules of Court, in allowing a
Court of First Instance to conduct a preliminary investigation,
does not disqualify it from trying the case after it had found
probable cause and after the fiscal, as directed by the Court
had filed the corresponding information. The rule assumes that
the Judge, who conducted the preliminary investigation, could
impartially try the case on the merits.
We cannot assume that judges as a rule are opinionated
and narrow-minded insomuch that they would invariably be
iron-bound by their findings at the preliminary investigation.
 The case of a Judge of the Court of First Instance, who
conducts a preliminary investigation and then tries the case on
the merits, is similar to a situation where an inferior court
conducts a preliminary investigation of a grave or less grave
offense falling within the concurrent jurisdiction of the Court
First Instance and the inferior court. In such a case, the inferior
court after terminating the preliminary investigation is not
obligated (  por delicadeza) to remand the case to the Court of
First Instance for trial. The inferior court has the option to try
the case on the merits. (People vs. Palmon, 86 Phil. 350;
Natividad vs. Robles, 87 Phil. 834; People vs. Colicio, 88 Phil.
196). The assumption is that the inferior court can try the case
without any ingrained bias or undue prejudice.
Samson sought to prove, through Lieutenant Colonel Jose
G. Fernandez, retired chief of the Constabulary crime
laboratory, a handwriting expert, that his signatures on the
vouchers are not his signatures.
Fernandez found that the questioned signatures and the
alleged genuine signatures (exemplars) of Samson have
fundamental differences. The expert concluded that the
questioned signatures and the exemplar signatures of Samson
were not written by one and the same person (Exh. 20).
After examining the questioned and genuine signatures
and analyzing the evidence and contentions of the parties, we
find that the expert is correct in declaring that (as admitted by
the trial court) there are radical differences between the
questioned and authentic signatures.
But the expert is in error in concluding that Samson did
not forge the questioned signatures or in implying that Samson
had no hand in the writing thereof.
The truth is that Samson used two forms of signature. His
supposed genuine signatures found in his residence
certificates, income tax returns and the genuine official receipt
of the Carried Construction Supply Co. are "in an arcade form
or rounded form of writing". The surname Samson is encircled.
 On the other hand, the questioned signatures used in
Samson's transactions with the provincial government are in
angular form; his surname is not encircled, and the questioned
signatures terminate in angular and horizontal strokes.
Samson was consistent in his fakeries. Knowing that the
six vouchers evidenced fictitious transactions, he used therein
his fake signature, or the signature which is different from his
signature in genuine documents. He used his forged signatures
in the six fake official receipts of the Carried Construction
Supply Co., stating that the amounts covered by the six
vouchers were received by him (Exh. K-6, KK to KK-4). the
expert admitted that a person may have two forms of signature
(186 tsn July 16, 1970).
Signatures may be deliberately disguised with the
dishonest intention of denying the same as and when
necessary (Mehta, Identification of Handwriting and Cross
Examination of Experts, pp. 4th Ed., 1970, p. 224; Harrison,
Suspect Documents 418-419).
Sendaydiego himself testified that the questioned
signatures of Samson in the six vouchers were Samson's
signatures (94-99 tsn July 31, 1969).
Fernandez, the handwriting expert, declared that the
questioned signatures of Samson in the vouchers were written
by only one person (264-265 tsn July 16, 1970).  LLjur

The evidence conclusively proves that Samson, as the

representative or collector of the supposed creditor, Carried
Construction Supply Co., hand-carried the vouchers in question
to the offices of the provincial engineer, treasurer and auditor
and then back to the treasurer's office for payment. He actually
received the cash payments. Under those circumstances,
Samson is presumed to be the forger of the vouchers.
The rule is that if a person had in his possession a
falsified document and be made use of it (uttered it), taking
advantage of it and profiting thereby, the presumption is that
he is the material author of the falsification. This is especially
true if the use or uttering of the forged documents was so
closely connected in time with the forgery that the user or
possessor may be proven to have the capacity of committing
the forgery, or to have close connection with the forgers, and
therefore, had complicity in the forgery. (U.S. vs. Castillo, 6
Phil. 453; People vs. De Lara, 45 Phil. 754; People vs.
Domingo, 49 Phil. 28; People vs. Astudillo, 60 Phil.
338; People vs. Manansala, 105 Phil. 1253).
In the absence of a satisfactory explanation, one who is
found in possession of a forged document and who used or
uttered it is presumed to be the forger (Alarcon vs. Court of
Appeals, L-21846, March 31, 1967, 19 SCRA 688; People vs.
Caragao, L-28258, December 27, 1969, 30 SCRA 993).
Samson's use of one form of signature for his crooked
transaction with the provincial government and another form of
signature of his valid transactions or papers shows the
deviousness of the falsifications perpetrated in these cases.
(Note that Sendaydiego signed the certification in the first
voucher, Exhibit K, stating that proceeds thereof were paid
Samson but Sendaydiego did not sign the same certification in
the other five forged vouchers, Exhibits O, P, Q, R and S).
As to the question of conspiracy, the statement of
Samson's counsel on page 19 of his brief, that "the trial court
made absolutely no finding of any supposed conspiracy"
between Samson and Sendaydiego, is not correct.
We have already noted that the trial court explicitly stated
that the circumstance that Sendaydiego signed the six
vouchers ahead of his assistant shows that there was "malice
or fraud" on the part of Sendaydiego and that there was
connivance between Samson and Sendaydiego when the
proceeds of the vouchers were paid to Samson
in Sendaydiego's inner office, instead of in the cashier's office
(p. 23, 26, Decision, Appendix to Samson's brief). The trial court
said that the fact that Sendaydiego allowed payment in cash
shows "his collusion" with Samson (Ibid, p. 26).
 Samson's contention that the trial court merely
conjectured that he had received the proceeds of the vouchers
is not well-taken. The trial court's finding on that point is based
on very strong circumstantial evidence (assuming that it was
not proven that Samson signed the vouchers).
Samson vehemently argues that there is no evidence that
the total sum of P57,048.23 paid under the six vouchers "was
really misappropriated". He asserts that the six vouchers are
genuine (although he contends that his signatures thereon are
forgeries) and that there is no proof that the amounts covered
thereby were not paid for the construction materials indicated
therein. He insists that the materials were actually delivered to
the province.
These contentions appear to be untenable in the light of
the declaration of Jabanes, the assistant manager of Carried
Construction Supply Co., the alleged supplier, that the
materials shown in the six vouchers were never delivered by
the company (Exh. HH).
And Leticia Sevilleja (wife of the provincial engineer), who
was employed as cashier of the Carried Construction Supply
Co., denied that Samson turned over to the company the
proceeds of the six vouchers which he was supposed to have
collected for the company from Sendaydiego. The six vouchers
appear to be fake principally because they evidence fictitious
sales of construction materials.
Under the said circumstances, it cannot be contended
that there was no malversation after Sendaydiego admitted
that Samson acknowledged in the six vouchers that he
received from Treasurer Sendaydiego the total sum of
P57,048.23.
The assertion of Samson's counsel on page 29 of his brief,
that the finding as to his guilt is based on a shaky foundation or
is predicated on circumstances which were not proven, is not
correct.
 Recapitulation: — In resum, it appears that the provincial
treasurer wants to base his exculpation on his belief that in the
six vouchers the signatures of Samson and the officials in the
provincial engineer's office appeared to be genuine and on the
fact that the auditor had approved the vouchers. The treasurer
claimed that he acted in good faith in approving the payments
of the proceeds of the vouchers to Samson as the
representative of the supplier, Carried Construction Co.
On the other hand, Samson, by impugning his signatures in
the vouchers, denied that he received the said amounts from
the cashier of the treasurer's office.
These conflicting versions of the treasurer and Samson
have to be resolved in the light of the inexpugnable fact that
Samson had hand-carried the vouchers and followed up their
processing in the offices of the provincial engineer, treasurer
and auditor (Exh. AA, p. 1, Exh. CC, p. 2; Exh. DD; Exh. W and
EE, p. 5) and that Samson's principal, the Carried Construction
Supply Co., denied having sold to the provincial government the
construction materials described in the six vouchers and
denied having received from Samson the prices of the alleged
sales.
The result is that Samson's denial of his signatures in the
six vouchers and in the six receipts (Exh. K-6 and KK to KK-4)
and the provincial treasurer's pretension of having acted in
good faith or having committed an honest mistake have to be
disbelieved.
The unavoidable conclusion is that Sendaydiego and
Samson were in cahoots to defraud the provincial government
and to camouflage the defraudation by means of the six
vouchers which have some genuine features and which appear
to be extrinsically authentic but which were intrinsically fake.
Penalties. — The trial court and the parties assumed that
three complex crimes of malversation through falsification of
public documents were committed in this case. That
assumption is wrong.
 The crimes committed in these three cases are not
complex. Separate crimes of falsification and malversation
were committed. These are not cases where the execution of a
single act constitutes two grave or less grave felonies or where
the falsification was used as a means to commit malversation.
In the six vouchers the falsification was used
to conceal the malversation. It is settled that if the
falsification was resorted to for the purpose of hiding the
malversation, the falsification and malversation are separate
offenses (People vs. Cid, 66 Phil. 354; People vs. Villanueva,
58 Phil. 671; People vs. Garalde, 52 Phil. 1000; People vs.
Regis, 67 Phil. 43).
In the Regis case, supra, where the modus operandi is
similar to the instant cases, the municipal treasurer made it
appear in two official payrolls dated April 30 and May 2, 1931
that some persons worked as laborers in a certain street
project at Pinamungahan, Cebu. In that way, the two amounts
covered by the payrolls, P473.70 and P271.60, were
appropriated and taken from the municipal funds. As a matter
of fact, no such work was done in the said street project and
the persons mentioned in both payrolls had not performed any
labor.
It was held in the Regis case, that the falsification and
malversation did not constitute a complex crime because the
falsifications were not necessary means for the commission of
the malversations. Each falsification and each malversation
constituted independent offenses which must be punished
separately.
The municipal treasurer was convicted of two falsification
and two malversations. Four distinct penalties were imposed.
In the instant cases, the provincial treasurer, as the
custodian of the money forming part of the road and bridge
fund, could have malversed or misappropriated it without
falsifying any voucher. The falsification was used as a device
to prevent detection of the malversation.
 The falsifications cannot be regarded as constituting one
continuing offense impelled by a single criminal impulse.
Each falsification of a voucher constitutes one crime. The
falsification of six vouchers constitutes six separate or distinct
offenses (People vs. Madrigal-Gonzales, 117 Phil. 956).
And each misappropriation as evidenced by a provincial
voucher constitutes a separate offense. The six
misappropriations evidenced by the six vouchers constitute six
distinct offenses (U.S. vs. Sacramento, 53 Phil. 639).
The overall result is that in these three cases six separate
offenses of falsification and six separate crimes of
malversation were committed. Appellant Samson is a co-
principal in each of the said twelve offenses.
As already stated, he is presumed to be the author of the
falsification because he was in possession of the forged
vouchers and he used them in order to receive public monies
from the provincial treasurer. cdrep

He is a co-principal in the six crimes of malversation

because he conspired with the provincial treasurer in
committing those offenses. The trial court correctly ruled that
a private person conspiring with an accountable public officer
in committing malversation is also guilty of malversation
(People vs. Rodis, 105 Phil. 1294; U.S. vs. Ponte, 20 Phil. 379;
U.S. vs. Dato and Lustre, 37 Phil. 359; U.S. vs. Dowdell, 11
Phil. 4; People vs. Caluag, 94 Phil. 457).
Note that a different rule prevails with respect to a
stranger taking part in the commission of parricide or qualified
theft. In such cases, the stranger is not guilty of parricide or
qualified theft but only of murder or homicide, as the case may
be, and simple theft, by reason of paragraph 3, article 62 of
the Revised Penal Code (People vs. Patricio, 46 Phil. 875
and People vs. Valdellon, 46 Phil. 245).
Falsification of a public document committed by a private
person is punished in article 172(1) of the Revised Penal
Code by prision correccional in its medium and maximum
periods and a fine of not more than P5,000.
For the malversation of the sum of P5,187.28 and
P4,501.38, respectively covered by vouchers Nos. 11869 and
11872 (Exh. P and S), the penalty provided in paragraph 2 of
article 217 of the Revised Penal Code is prision
mayor minimum and medium.
For the malversation of the sums of P6,290.60 and
P9,769.64, respectively covered by vouchers Nos. 11870 and
11871 (Exh. Q and R) the penalty provided in paragraph 3 of
article 217 is  prision mayor maximum of reclusion
temporal minimum.
For the malversation of the sums of P16,727.52 and
P14,571.81 respectively covered by vouchers Nos. 10724 and
10995 (Exh. K and O), the penalty provided in paragraph 4 of
article 217 is reclusion temporal medium and maximum.
In each of the malversation cases, a fine equal to the
amount malversed should be added to the imprisonment
penalty.
In the twelve cases the penalty should be imposed in the
medium period since there are no modifying circumstances
(Arts. 64[1] and 65, Revised Penal Code). Samson is entitled to
an indeterminate sentence.
WHEREFORE, Samson is convicted of six crimes of
falsification of a public document and six crimes of
malversation.
In lieu of the penalties imposed by the trial court, he is
sentenced to the following penalties:
For each of the six falsifications of the vouchers (Exh. K,
O, P, Q, R and S), Samson is sentenced to an indeterminate
penalty of two (2) years of prison correccional minimum, as
minimum, to four (4) years of prision correccional medium, as
maximum, and to pay a fine of three thousand pesos.
 For the malversation of the sum of P16,727.52 covered by
voucher No. 10724 (Exh. K), Samson is sentenced to an
indeterminate penalty of twelve (12) years of prision
mayor maximum, as minimum, to seventeen (17) years
of reclusion temporal medium, as maximum; to pay a fine in
the amount of P16,727.52, and to indemnify the province of
Pangasinan in the same amount (Criminal Case No. 23349, L-
33252). LLpr

For the malversation of the sum of P14,571.81 covered by

voucher No. 11995 (Exh. O), Samson is sentenced to an
indeterminate penalty of twelve (12) years of prision
mayor maximum, as minimum, to seventeen (17) years
of reclusion temporal medium, as maximum; to pay a fine in
the sum of P14,571.81, and to indemnify the province of
Pangasinan in the same amount (Criminal Case No. 23351, L-
33254).
For the malversation of the sum of P6,290.60 covered by
voucher No. 11870 (Exh. Q), Samson is sentenced to an
indeterminate penalty of nine (9) years of prision
mayor medium, as minimum, to thirteen (13) years
of reclusion temporal minimum, as maximum; to pay a fine of
P6,290.60, and to indemnify the province of Pangasinan in the
same amount (Criminal Case No. 23350, L-33253).
For the malversation of the sum of P9.769.64 covered by
voucher No. 11871 (Exh. R), Samson is sentenced to an
indeterminate penalty of nine (9) years of prision
mayor medium, as minimum, to thirteen (13) years
of reclusion temporal minimum, as maximum; to pay a fine of
P9,769.64, and to indemnify the province of Pangasinan in the
same amount (Criminal Case No. 23350, L-33253).
For the malversation of the sum of P5,187.28, covered by
voucher No. 11869 (Exh. P), Samson is sentenced to an
indeterminate penalty of five (5) years of prision
correccional maximum, as minimum, to eight (8) of prision
mayor minimum, as maximum; to pay a fine of P5,187.28, and
 to indemnify the province of Pangasinan in the same amount
(Criminal Case No. 23350, L-33253).
For the malversation of the sum of P4,501.38 covered by
voucher no. 11872 (Exh. S), Samson is sentenced to an
indeterminate penalty of five (5) years of prision
correccional maximum, as minimum, to eight (8) years
of prision mayor minimum, as maximum; to pay a fine of
P4,501.38, and to indemnify the province of Pangasinan in the
same amount (Criminal Case No. 23350, L-33253).
In the service of the twelve penalties meted to Samson,
the threefold limit provided for in article 70 of the Revised
Penal Code should be observed (People vs. Escares, 102 Phil.
677), meaning that the maximum penalty that he should serve
is three times the indeterminate sentence of twelve (12) years
to seventeen (17) years, the severest penalty imposed on him,
or thirty-six (36) years to fifty-one (51) years (See People vs.
Peñas, 68 Phil. 533).
The maximum duration of his sentences should not
exceed forty (40) years (Penultimate par. of art. 70; People vs.
Alisub, 69 Phil. 362; People vs. Concepcion, 59 Phil. 518, 68
Phil. 530 and 69 Phil. 58).
The estate of the late Licerio P. Sendaydiego is ordered
to indemnify the province of Pangasinan in the sum of
P57,048.23. Samson and the said estate are solidarily liable for
the said indemnity (Art. 110, Revised Penal Code). Samson
should pay one-half of the costs.
SO ORDERED.
 (People v. Sendaydiego, G.R. Nos. L-33252-54, [January 20,
|||

1978], 171 PHIL 114-147)

 SECOND DIVISION

[A.C. No. 1418. August 31, 1976.]

JOSE MISAMIN, complainant, vs. ATTORNEY
MIGUEL A. SAN JUAN,  respondent.

RESOLUTION

FERNANDO, J  : p

It certainly fails to reflect credit on a captain in the Metro

Manila Police force and a member of the bar, respondent
Miguel A. San Juan, to be charged with being the legal
representative of certain establishments allegedly owned by
Filipinos of Chinese descent and, what is worse, with coercing
an employee, complainant Jose Misamin, to agree to drop the
charges filed by him against his employer Tan Hua, owner of
New Cesar's Bakery, for the violation of the Minimum Wage
Law. There was a denial on the part of respondent. The matter
was referred to the Office of the Solicitor-General for
investigation, report and recommendation. Thereafter, it would
seem there was a change of heart on the part of complainant.
That could very well be the explanation for the non-appearance
of the lawyer employed by him at the scheduled hearings. The
efforts of the Solicitor-General to get at the bottom of things
were thus set at naught. Under the circumstances, the
outcome of such referral was to be expected. For the law is
rather exacting in its requirement that there be competent and
adequate proof to make out a case for malpractice.
Necessarily, the recommendation was one of the complaints
being dismissed. This is one of those instances then where this
Court is left with hardly any choice. Respondent cannot be
found guilty of malpractice.
Respondent, as noted in the Report of the Solicitor-
General, "admits having appeared as counsel for the New
Cesar's Bakery in the proceeding before the NLRC while he
held office as captain in the Manila Metropolitan Police.
However, he contends that the law did not prohibit him from
such isolated exercise of his profession. He contends that his
appearance as counsel, while holding a government position, is
not among the grounds provided by the Rules of Court for the
suspension or removal of attorneys. The respondent also
denies having conspired with the
complainant Misamin's attorney in the NLRC proceeding in
order to trick the complainant into signing an admission that he
had been paid his separation pay. Likewise, the respondent
denies giving illegal protection to members of the Chinese
community in Sta. Cruz, Manila." 1
Then came a detailed account in such Report of the
proceedings: "Pursuant to the resolution of this Honorable
Court of March 21, 1975, the Solicitor General's Office set the
case for investigation on July 2 and 3, 1975. The counsel for
the complainant failed to appear, and the investigation was
reset to August 15, 1975. At the latter date, the same counsel
for complainant was absent. In both instances, the said
counsel did not file written motion for postponement but
merely sent the complainant to explain the reason for his
absence. When the case was again called for hearing on
October 16, 1975, counsel for complainant failed once more to
appear. The complainant who was present explained that his
lawyer was busy 'preparing an affidavit in the Court of First
Instance of Manila.' When asked if he was willing to proceed
with the hearing in the absence of his counsel, the complainant
declared, apparently without any prodding, that he wished his
complaint withdrawn. He explained that he brought the present
action in an outburst of anger believing that the
respondent San Juan took active part in the unjust dismissal
of his complaint with the NLRC. The complainant added that
after reexamining his case, he believed the respondent to be
without fault and a truly good person." 2
The Report of the Solicitor-General did not take into
account respondent's practice of his profession
notwithstanding his being a police official, as "this is not
embraced in Section 27, Rule 138 of the Revised Rules of Court
which provides the grounds for the suspension or removal of an
attorney. The respondent's appearance at the labor proceeding
notwithstanding that he was an incumbent police officer of the
City of Manila may appropriately he referred to the National
Police Commission and the Civil Service Commission. As a
matter of fact, separate complaints on this ground have been
filed and are under investigation by the Office of the Mayor of
Manila and the National Police Commission." 3 As for the
charges that respondent conspired with complainant's counsel
to mislead complainant to admitting having received his
separation pay and for giving illegal protection to aliens, it is
understandable why the Report of the Solicitor General
recommended that they be dismissed for lack of evidence.
The conclusion arrived at by the Solicitor-General that the
complaint cannot prosper is in accordance with the settled
law. As far back as in re Tionko, 4 decided in 1922, the
authoritative doctrine was set forth by Justice Malcolm in this
wise: "The serious consequences of disbarment or suspension
should follow only where there is a clear preponderance of
evidence against the respondent. The presumption is that the
attorney is innocent of the charges preferred and has
performed his duty as an officer of the court in accordance
with his oath." 5 The Tionko doctrine has been subsequently
adhered to. 6
This resolution does not in any wise take into
consideration whatever violations there might have been of the
Civil Service Law in view of respondent practicing his
profession while holding his position of Captain in the Metro
Manila police force. That is a matter to be decided in the
 administrative proceeding as noted in the recommendation of
the Solicitor-General. Nonetheless, while the charges have to
be dismissed, still it would not be inappropriate for respondent
member of the bar to avoid all appearances of impropriety.
Certainly, the fact that the suspicion could be entertained that
far from living true to the concept of a public office being a
public trust, he did make use, not so much of whatever legal
knowledge he possessed, but the influence that laymen could
assume was inherent in the office held not only to frustrate the
beneficent statutory scheme that labor be justly compensated
but also to be at the beck and call of what the complainant
called alien interest, is a matter that should not pass
unnoticed. Respondent, in his future actuations as a member of
the bar, should refrain from laying himself open to such doubts
and misgivings as to his fitness not only for the position
occupied by him but also for membership in the bar. He is not
worthy of membership in an honorable profession who does not
even take care that his honor remains unsullied.
WHEREFORE, this administrative complaint against
respondent Miguel A. San Juan is dismissed for not having
been duly proved. Let a copy of this resolution be spread on his
record.
Barredo, Antonio, Aquino and Concepcion, Jr.,
JJ.,  concur.
 (Misamin v. San Juan, A.C. No. 1418 (Resolution), [August 31,
|||

1976], 164 PHIL 487-491)