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Special Civil Action Cases for Finals FIRST DIVISION

G.R. No.147812. April 6, 2005

LEONARDO R. OCAMPO, Petitioners, vs. LEONORA TIRONA, Respondents.

DECISION

CARPIO, J.:

The Case This is a petition for review1 to annul the Decision2 dated 29 November 2000 of the Court of Appeals ("appellate court") in CA-G.R. SP No. 41686, and its Resolution dated 16 April 2001 denying the motion for reconsideration. The appellate court set aside the Decision 3 dated 27 June 1996 of Branch 110 of the Regional Trial Court of Pasay City ("RTC") in Civil Case No. 96-0209. The RTC affirmed the Decision4 dated 29 December 1995 of Branch 47 of the Metropolitan Trial Court of Pasay City ("MTC") in Civil Case No. 754-95 ordering respondent Leonora Tirona ("Tirona") to vacate and surrender possession of the property under litigation to petitioner Leonardo R. Ocampo ("Ocampo"). The MTC also ordered Tirona to pay Ocampo rentals in arrears, attorneys fees, and costs of suit. Antecedent Facts Ocampo alleged that he is the owner of a parcel of land ("subject land") described in Transfer Certificate of Title ("TCT") No. 134359, with an approximate area of 500 square meters, located at Alvarez Street, Pasay City. Ocampo bought the subject land from Rosauro Breton, heir of the subject lands registered owner Alipio Breton Cruz. Possession and administration of the subject land are claimed to be already in Ocampos management even though the TCT is not yet in his name. Tirona, on the other hand, is a lessee occupying a portion of the subject land. 5 The MTC established the following facts: According to [Ocampo], upon acquisition of ownership of the subject premises, a formal written notice was given to [Tirona] which was received by the latter on 9 March 1995, copy of the said formal written agreement marked as Annex "A" and likewise copy of the registry return receipt showing that [Tirona] received Annex "A" was marked as Annex "A-1". In recognition of [Ocampos] right of ownership over the subject premises, [Tirona] paid some monthly rentals due, however, on July 5, 1995, [Ocampo] received a letter from Callejo Law Office of Room 513 Borja Bldg., 645 Sta. Cruz, Manila stating among others, that, in view of the fact that the subject premises was declared under area for priority development, [Tirona] is invoking her right of first refusal and in connection thereto [Tirona] will temporarily stop paying her monthly rentals until and unless the National Housing Authority have processed the pertinent papers as regards the amount due to [Ocampo] by reason of the implementation of the above law, a copy of the said letter marked as Annex "B" of the Complaint. In reply to Annex "B", [Ocampo] sent a letter dated 17 July 1995 addressed to the said Callejo Law Office, copy furnished [Tirona]. A copy of the said reply of [Ocampo] marked as Annex "C" of the Complaint, a copy of the Registry Return Receipt showing that [Tirona] received said Annex "C" on 20 July 1995 marked as Annex "C-1" of the Complaint, while as the original copy which was sent to Callejo Law Office was also received by said office. On 7 August 1995, [Ocampo] wrote a letter to [Tirona] demanding upon [Tirona] to pay the rentals in arrears for the months of April, May, June, July and August at the rate of P1,200 a month and to vacate the premises, copy of the said letter dated 7 August 1995 marked as Annex "D" of the Complaint and the signature at the bottom portion of Annex "D" clearly shows that the same was received by [Tirona] on 8 August 1995. Despite receipt of said letter, [Tirona] failed and refused and still fails and refuses to heed [Ocampos] demands.6 On 11 September 1995, Ocampo filed a complaint docketed as Civil Case No. 754-95 for unlawful detainer and damages against Tirona before the MTC. Tirona filed her answer on 27 September 1995. Tirona asserted that Doa Lourdes Rodriguez Yaneza actually owns the subject land. The allegations in the answer state thus: 1. That the Assignor [one Edison A. Hindap, Sr.] is the General Overseer and Attorney-in-Fact of DOA LOURDES RODRIGUEZ YANEZA, Heir/Owner of TITULO DE PROPRIEDAD DE TERENOS of 1891, Royal Degree 01-4 Protocol, the real owner of a parcel of land allegedly claimed by [Ocampo]. 2. That the Title of [Ocampo] was overlapped [sic] the Original Land Title of the Assignor. 3. That [Tirona], hereby recognized by the Assignor as co-owner by possession and hereby cede, transfer and assign the said parcel of land in [Tironas] favor. 4. That [Tirona] hereby denied [sic] and discontinued [sic] all the obligations imposed by [Ocampo], for the simple reason, the property in question is not owned by [Ocampo], but rather owned by the Assignor, as proof of evidence herein Assignor issued a Certification for Occupancy and Assignment in favor of [Tirona] herein attached with [sic], and the other evidence shall be presented upon the proper hearing on the merits of this case.7 Ocampo filed a motion to strike out the answer filed and a motion for judgment on 10 October 1995. Ocampo claimed that the answer was not verified; therefore, it was as if no answer was filed. On 12 October 1995, Tirona filed a motion with leave to amend defendants answer.8 She alleged that she filed her answer without the assistance of a lawyer due to fear that she might be unable to file the required pleading on time. In her amended answer, Tirona maintained that Ocampo is not the owner of the subject land. She stated that the certificate of title to the subject land is not even registered under Ocampos name. Tirona also alleged that she has a right of first refusal in case of sale of the land, pursuant to Presidential Decree ("PD") Nos. 1517,9 189310and 1968.11 The area where the subject land is located was certified as an area under priority development.12Tirona asked for attorneys fees and moral and exemplary damages.

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In the spirit of substantial justice, the MTC granted Tironas motion to amend her answer on 20 October 1995. On 15 November 1995, the MTC directed Ocampo and Tirona to submit their respective position papers and other evidence after the termination of the pre-trial conference. The issue considered by the MTC for resolution was whether Ocampo may eject Tirona because of non-payment of rent and because of the termination of Tironas right to possess and occupy the subject land. The MTCs Ruling The MTC ruled that Tirona does not have any reason to suspend payment of rents until after PD No. 1517, in relation to PD Nos. 1893 and 1968, is implemented in her favor. Tironas non-payment of rents rendered her occupation of the subject land illegal. As owner of the subject land, Ocampo is entitled to its use and enjoyment, as well as to recover its possession from any person unlawfully withholding it. The dispositive part of the MTCs decision reads: WHEREFORE, judgment is hereby rendered in favor of [Ocampo] and against [Tirona]: 1. Ordering [Tirona] and all other persons claiming possession under her to vacate and surrender possession to [Ocampo] the premises known as, parcel of land located at 2132 Alvarez St., Pasay City, covered by Transfer Certificate of Title No. 134359 of the Register of Deeds of Pasay City; 2. Ordering [Tirona] to pay the rentals in arrears covering the period from April 1995 until such time [Tirona] shall have finally vacated the subject premises at the rate of P1,200 a month, with interest at a legal rate; 3. Ordering [Tirona] to pay the sum of P5,000 for and as attorneys fees; and 4. Ordering [Tirona] to pay the cost of the suit. SO ORDERED.13 Ocampo filed a motion for execution pending appeal on 24 January 1996, while Tirona filed a notice of appeal on 25 January 1996. The MTC directed its clerk of court to transmit the records of the case, as well as the motion for execution pending appeal, through an order issued on 29 January 1996. The RTC issued an order on 26 February 1996 ordering both parties to file their respective memoranda. On 4 March 1996, Maria Lourdes Breton-Mendiola, who claimed to be the owner of the subject land, filed a motion with leave to file intervention before the RTC. The RTCs Ruling In an order dated 11 March 1996, the RTC issued a writ of execution pending appeal for the enforcement of the MTCs decision. The RTC stated that although Tirona perfected her appeal on time, the record showed that she failed to pay the required supersedeas bond as well as deposit the current rentals as mandated by Section 8, Rule 70 of the 1964 Rules of Court. In a separate order issued on the same date, the RTC denied Maria Lourdes Breton-Mendiolas motion with leave to file intervention. The RTC stated that granting the motion to intervene would violate the 1964 Rules of Court and jurisprudence. Ocampo filed his memorandum on 21 March 1996.14 He emphasized that Tironas assertion of a "preferential right of first refusal" is a recognition of the sale by Rosauro Breton of the subject land to him. Moreover, Tirona is not qualified to claim this preferential right because she is no longer a legitimate tenant. The payment of Tironas monthly rent was already in arrears at the time Ocampo filed the complaint against Tirona. On 25 March 1996, Tirona filed a manifestation which stated that she paid both the supersedeas bond and rent on the subject land. The RTC considered Tironas manifestation as a motion for reconsideration of its previous order issuing a writ of execution pending appeal. In its order dated 15 April 1996, the RTC recalled its 11 March 1996 order and cancelled the writ of execution. Tirona filed her memorandum also on 25 March 1996. For the first time, Tirona disclosed that Alipio Breton is the registered owner of the subject land and that he is her landlord since 1962. When Alipio Breton died in 1975, his children, Rosauro Breton and Maria Lourdes Breton-Mendiola, inherited the subject land. Tirona claims she has never stopped paying her rent to Maria Lourdes Breton-Mendiola. Tirona also stated that Rosauro Breton could not transfer ownership to the subject land to Ocampo. On 14 July 1978, Rosauro Breton executed a deed of conveyance and waiver in favor of his sister, Maria Lourdes Breton-Mendiola. Rosauro Breton executed another deed of conveyance and waiver in favor of Maria Lourdes Breton-Mendiola on 9 March 1995. Thus, Tirona claims, Ocampo cannot legally acquire title from Rosauro Breton in view of the waivers. Maria Lourdes Breton-Mendiola is Tironas lessor, and is the only person who can validly file an ejectment suit against Tirona.15 After quoting the findings of the MTC, the RTC held thus: This Court after a careful review of the complete record of this case particularly the evidences, applicable laws and jurisprudence relied upon by the [MTC] in finding for [Ocampo] and declaring that [Tirona] can be lawfully ejected from the subject premises, concurs with the findings thereof. There is therefore nothing in the record which would warrant the Court to disturb the findings of fact and law and the conclusions reached by the [MTC]. This Court finds the decision of the lower court fully justified in granting the reliefs to [Ocampo].

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WHEREFORE, judgment is hereby rendered AFFIRMING IN TOTO the decision of the [MTC] with costs against [Tirona]. SO ORDERED.16 In its petition before the appellate court, Tirona stated that the RTC erred in the following grounds: 1. ORDERING THE EJECTMENT OF [TIRONA] IN VIOLATION OF SECTION 2 OF PD [NO.] 2016.17 2. NOT RULING THAT [TIRONA] HAS A BETTER RIGHT OF POSSESSION OVER THE PROPERTY IN QUESTION. 3. RULING THAT THE SUCCESSOR-IN-INTEREST OF AN UNDIVIDED IDEAL ONE-HALF PORTION, [OCAMPO] MAY DEPRIVE THE OTHER COOWNER OF THE ADMINISTRATION OF ONE-HALF PORTION BY EJECTING HER LESSEE, [TIRONA].18 The appellate court stated that the principal issue for its resolution is whether Ocampo, being the buyer of the subject land which is not yet partitioned among the heirs, can validly evict Tirona.19 The Appellate Courts Ruling The appellate court considered partition of the estate of Alipio Breton as a prerequisite to Ocampos action. The appellate court ruled that "[u]ntil the partition of the estate is ordered by the Regional Trial Court of Pasay City in the pending partition proceedings and the share of each co-heir is determined by metes and bounds, [Ocampo] cannot rightfully claim that what he bought is part of the property occupied by [Tirona]."20 The dispositive part of the appellate courts decision reads thus: WHEREFORE, the decision of the respondent court is hereby SET ASIDE and judgment is hereby rendered dismissing the complaint of the private respondent in the court below. SO ORDERED.21 Hence, the instant petition. The Issues Ocampo assigned three errors to the appellate court. Ocampo stated that the appellate court erred in: 1. ENTERTAINING AND NOT DISMISSING THE PETITION FOR REVIEW (with prayer for its issuance of Writ of Preliminary Injunction and immediate issuance of TRO), THE SAME HAVING BEEN FILED BEYOND THE REGLAMENTARY PERIOD. 2. CONSIDERING AND RESOLVING AN ISSUE RAISED IN THE PETITION FOR REVIEW FOR THE FIRST TIME ON APPEAL. 3. DECLARING THAT LEONARDO R. OCAMPO HAS NO RIGHT TO EJECT LEONORA TIRONA, NOR DEMAND PAYMENT OF RENTALS FROM HER FOR THE USE AND OCCUPANCY OF THE LOT INVOLVED IN THE PRESENT CASE.22 The Ruling of the Court The petition has merit. We agree with Ocampos observation that Tirona changes her theory of the case each time she appeals.23 For this reason, we shall limit our ruling to the propriety of Ocampos unlawful detainer case against Tirona. Moreover, we have assessed the evidence on record and found that the appellate court did not contradict the findings of facts of the MTC and RTC. Thus, we see no reason to deviate from their findings of facts. Unlawful Detainer Elements to be Proved Unlawful detainer cases are summary in nature. The elements to be proved and resolved in unlawful detainer cases are the fact of lease and expiration or violation of its terms.24 To support their conclusion that there was an existing lease, the MTC and RTC found that: (1) Ocampo informed Tirona through a letter dated 1 March 1995 that he bought the subject land, upon which Tironas house stands, from the previous owner and lessor Rosauro Breton;25

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(2) Tironas continued occupancy of the subject land signifies Tironas acceptance of Ocampos conditions of lease stated in the 1 March 1995 letter;26 and (3) In asserting her right to possess the subject land, Tirona admitted that Ocampo is her lessor. In the 5 July 1995 letter, Tirona was referred to as "the hereinmentioned tenant of yours."27 In Mirasol v. Magsuci, et al.,28 we ruled that the sale of a leased property places the vendee into the shoes of the original lessor to whom the lessee bound himself to pay. The vendee acquires the right to evict the lessee from the premises and to recover the unpaid rentals after the vendee had notified the lessee that he had bought the leased property and that the rentals on it should be paid to him, and the lessee refused to comply with the demand. The following facts support the conclusion that there was a violation of the lease agreement: (1) Tirona, through Callejo Law Office, sent a letter dated 5 July 1995 which stated that Tirona will temporarily stop paying her monthly obligation until the National Housing Authority has processed the pertinent papers regarding the amount due to Ocampo in view of PD 1517;29 (2) As of August 1995, Tirona has not paid her rent to Ocampo corresponding to April to August 1995;30 and (3) In a letter dated 7 August 1995, Ocampo demanded from Tirona unpaid rent payments.31 In view of these facts, we hold that Tirona is estopped from denying her possession under a lease 32 and that there was a violation of the lease agreement. Thus, the MTC and RTC correctly ruled against Tirona. Ownership as an Issue When Tirona filed her answer before the MTC, she raised the issue of ownership and ascribed ownership of the subject lot to one Doa Lourdes Rodriguez Yaneza. Tirona later changed her strategy and filed an amended answer that ascribed ownership of the subject lot to Maria Lourdes BretonMendiola. Tirona justified the amendment by stating that she did not ask for the assistance of a lawyer for fear of not being able to file her answer on time. This excuse is flimsy considering that Tirona first communicated to Ocampo through Callejo Law Office. However, the MTC still allowed Tirona to amend her answer. Tirona stated that there was no violation of the lease agreement because she paid her rent to the real owner, Maria Lourdes BretonMendiola. Contrary to Tironas position, the issue of ownership is not essential to an action for unlawful detainer. The fact of the lease and the expiration of its term are the only elements of the action. The defense of ownership does not change the summary nature of the action. The affected party should raise the issue of ownership in an appropriate action, because a certificate of title cannot be the subject of a collateral attack.33 Although a wrongful possessor may at times be upheld by the courts, this is merely temporary and solely for the maintenance of public order. The question of ownership is to be settled in the proper court and in a proper action.34 In actions for forcible entry and [unlawful] detainer, the main issue is possession de facto, independently of any claim of ownership or possession de jure that either party may set forth in his pleadings, and an appeal does not operate to change the nature of the original action. On appeal, in an ejectment case, it is within the discretion of the court to look into the evidence supporting the assigned errors relating to the alleged ownership of appellant insofar as said evidence would indicate or determine the nature of appellants possession of the controverted premises. Said court should not however resolve the issue raised by such assigned errors. The resolution of said issues would effect an adjudication on ownership which is not sanctioned in the summary action for unlawful detainer.35 Unlawful detainer being a summary proceeding, it was error for the appellate court to include the issue of ownership. Had the appellate court limited its ruling to the elements to be proved in a case of unlawful detainer, Ocampo need not even prove his ownership. When the appellate court ruled that the case of unlawful detainer had to wait for the results of the partition proceedings, it effectively put ownership as the main issue in the case. The issue of ownership opens a virtual Pandoras Box for Tirona and her supposed intervenor, Maria Lourdes BretonMendiola.36 Interpleader The good faith of Tirona is put in question in her preference for Maria Lourdes Breton-Mendiola. As a stakeholder, Tirona should have used reasonable diligence in hailing the contending claimants to court. Tirona need not have awaited actual institution of a suit by Ocampo against her before filing a bill of interpleader.37 An action for interpleader is proper when the lessee does not know the person to whom to pay rentals due to conflicting claims on the property.38 The action of interpleader is a remedy whereby a person who has property whether personal or real, in his possession, or an obligation to render wholly or partially, without claiming any right in both, or claims an interest which in whole or in part is not disputed by the conflicting claimants, comes to court and asks that the persons who claim the said property or who consider themselves entitled to demand compliance with the obligation, be required to litigate among themselves, in order to determine finally who is entitled to one or the other thing. The remedy is afforded not to protect a person against a double liability but to protect him against a double vexation in respect of one liability. When the court orders that the claimants litigate among themselves, there arises in reality a new action and the former are styled interpleaders, and in such a case the pleading which initiates the action is called a complaint of interpleader and not a cross-complaint.39

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Ocampo has the right to eject Tirona from the subject land. All the elements required for an unlawful detainer case to prosper are present. Ocampo notified Tirona that he purchased the subject land from Tironas lessor. Tironas continued occupation of the subject land amounted to acquiescence to Ocampos terms. However, Tirona eventually refused to pay rent to Ocampo, thus violating the lease. Finally, legal interest at the annual rate of 6% is due on the unpaid monthly rentals starting from 7 August 1995 when Ocampo made an extrajudicial demand on Tirona for payment of the monthly rental.40 On finality of our decision, annual interest at 12%, in lieu of 6% annual interest, is due on the amounts the MTC awarded until full payment.41 WHEREFORE, we GRANT the instant petition for review. The Decision dated 27 June 1996 of Branch 110 of the RTC in Civil Case No. 96-0209, which affirmed the Decision dated 29 December 1995 of Branch 47 of the MTC in Civil Case No. 754-95, is REINSTATED. The Decision dated 29 November 2000 of the appellate court in CA-G.R. SP No. 41686, and its Resolution dated 16 April 2001 denying the motion for reconsideration, are SET ASIDE. SO ORDERED. Davide, Jr., C.J., (Chairman), Quisumbing, Ynares-Santiago, and Azcuna, JJ., concur.

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EN BANC

G.R. No. 94723 August 21, 1997

KAREN E. SALVACION, minor, thru Federico N. Salvacion, Jr., father and Natural Guardian, and Spouses FEDERICO N. SALVACION, JR., and EVELINA E. SALVACION, petitioners, vs. CENTRAL BANK OF THE PHILIPPINES, CHINA BANKING CORPORATION and GREG BARTELLI y NORTHCOTT, respondents.

TORRES, JR., J.:

In our predisposition to discover the "original intent" of a statute, courts become the unfeeling pillars of the status quo. Ligle do we realize that statutes or even constitutions are bundles of compromises thrown our way by their framers. Unless we exercise vigilance, the statute may already be out of tune and irrelevant to our day. The petition is for declaratory relief. It prays for the following reliefs: a.) Immediately upon the filing of this petition, an Order be issued restraining the respondents from applying and enforcing Section 113 of Central Bank Circular No. 960; b.) After hearing, judgment be rendered: 1.) Declaring the respective rights and duties of petitioners and respondents; 2.) Adjudging Section 113 of Central Bank Circular No. 960 as contrary to the provisions of the Constitution, hence void; because its provision that "Foreign currency deposits shall be exempt from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever i.) has taken away the right of petitioners to have the bank deposit of defendant Greg Bartelli y Northcott garnished to satisfy the judgment rendered in petitioners' favor in violation of substantive due process guaranteed by the Constitution; ii.) has given foreign currency depositors an undue favor or a class privilege in violation of the equal protection clause of the Constitution; iii.) has provided a safe haven for criminals like the herein respondent Greg Bartelli y Northcott since criminals could escape civil liability for their wrongful acts by merely converting their money to a foreign currency and depositing it in a foreign currency deposit account with an authorized bank. The antecedent facts: On February 4, 1989, Greg Bartelli y Northcott, an American tourist, coaxed and lured petitioner Karen Salvacion, then 12 years old to go with him to his apartment. Therein, Greg Bartelli detained Karen Salvacion for four days, or up to February 7, 1989 and was able to rape the child once on February 4, and three times each day on February 5, 6, and 7, 1989. On February 7, 1989, after policemen and people living nearby, rescued Karen, Greg Bartelli was arrested and detained at the Makati Municipal Jail. The policemen recovered from Bartelli the following items: 1.) Dollar Check No. 368, Control No. 021000678-1166111303, US 3,903.20; 2.) COCOBANK Bank Book No. 104-108758-8 (Peso Acct.); 3.) Dollar Account China Banking Corp., US$/A# 54105028-2 ; 4.) ID-122-30-8877; 5.) Philippine Money (P234.00) cash; 6.) Door Keys 6 pieces; 7.) Stuffed Doll (Teddy Bear) used in seducing the complainant. On February 16, 1989, Makati Investigating Fiscal Edwin G. Condaya filed against Greg Bartelli, Criminal Case No. 801 for Serious Illegal Detention and Criminal Cases Nos. 802, 803, 804, and 805 for four (4) counts of Rape. On the same day, petitioners filed with the Regional Trial Court of Makati Civil Case No. 89-3214 for damages with preliminary attachment against Greg Bartelli. On February 24, 1989, the day there was a scheduled hearing for Bartelli's petition for bail the latter escaped from jail. On February 28, 1989, the court granted the fiscal's Urgent Ex-Parte Motion for the Issuance of Warrant of Arrest and Hold Departure Order. Pending the arrest of the accused Greg Bartelli y Northcott, the criminal cases were archived in an Order dated February 28, 1989. Meanwhile, in Civil Case No. 89-3214, the Judge issued an Order dated February 22, 1989 granting the application of herein petitioners, for the issuance of the writ of preliminary attachment. After petitioners gave Bond No. JCL (4) 1981 by FGU Insurance Corporation in the amount of P100,000.00, a Writ of Preliminary Attachment was issued by the trial court on February 28, 1989. On March 1, 1989, the Deputy Sheriff of Makati served a Notice of Garnishment on China Banking Corporation. In a letter dated March 13, 1989 to the Deputy Sheriff of Makati, China Banking Corporation invoked Republic Act No. 1405 as its answer to the notice of garnishment served on it. On March 15, 1989, Deputy Sheriff of Makati Armando de Guzman sent his reply to China Banking Corporation saying that the garnishment did not violate the secrecy of bank deposits since the disclosure is merely incidental to a garnishment properly and legally made by virtue of a court order which has placed the subject deposits in custodia legis. In answer to this letter of the Deputy Sheriff of Makati, China Banking Corporation, in a letter dated March 20, 1989, invoked Section 113 of Central Bank Circular No. 960 to the effect that the dollar deposits or defendant Greg Bartelli are exempt from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body, whatsoever.

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This prompted the counsel for petitioners to make an inquiry with the Central Bank in a letter dated April 25, 1989 on whether Section 113 of CB Circular No. 960 has any exception or whether said section has been repealed or amended since said section has rendered nugatory the substantive right of the plaintiff to have the claim sought to be enforced by the civil action secured by way of the writ of preliminary attachment as granted to the plaintiff under Rule 57 of the Revised Rules of Court. The Central Bank responded as follows: May 26, 1989 Ms. Erlinda S. Carolino 12 Pres. Osmena Avenue South Admiral Village Paranaque, Metro Manila Dear Ms. Carolino: This is in reply to your letter dated April 25, 1989 regarding your inquiry on Section 113, CB Circular No. 960 (1983). The cited provision is absolute in application. It does not admit of any exception, nor has the same been repealed nor amended. The purpose of the law is to encourage dollar accounts within the country's banking system which would help in the development of the economy. There is no intention to render futile the basic rights of a person as was suggested in your subject letter. The law may be harsh as some perceive it, but it is still the law. Compliance is, therefore, enjoined. Very truly yours, (SGD) AGAPITO S. FAJARDO Director 1 Meanwhile, on April 10, 1989, the trial court granted petitioners' motion for leave to serve summons by publication in the Civil Case No. 89-3214 entitled "Karen Salvacion, et al. vs. Greg Bartelli y Northcott." Summons with the complaint was a published in the Manila Times once a week for three consecutive weeks. Greg Bartelli failed to file his answer to the complaint and was declared in default on August 7, 1989. After hearing the case exparte, the court rendered judgment in favor of petitioners on March 29, 1990, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered in favor of plaintiffs and against defendant, ordering the latter: 1. To pay plaintiff Karen E. Salvacion the amount of P500,000.00 as moral damages; 2. To pay her parents, plaintiffs spouses Federico N. Salvacion, Jr., and Evelina E. Salvacion the amount of P150,000.00 each or a total of P300,000.00 for both of them; 3. To pay plaintiffs exemplary damages of P100,000.00; and 4. To pay attorney's fees in an amount equivalent to 25% of the total amount of damages herein awarded; 5. To pay litigation expenses of P10,000.00; plus 6. Costs of the suit. SO ORDERED. The heinous acts of respondent Greg Bartelli which gave rise to the award were related in graphic detail by the trial court in its decision as follows: The defendant in this case was originally detained in the municipal jail of Makati but was able to escape therefrom on February 24, 1989 as per report of the Jail Warden of Makati to the Presiding Judge, Honorable Manuel M. Cosico of the Regional Trial Court of Makati, Branch 136, where he was charged with four counts of Rape and Serious Illegal Detention (Crim. Cases Nos. 802 to 805). Accordingly, upon motion of plaintiffs, through counsel, summons was served upon defendant by publication in the Manila Times, a newspaper of general circulation as attested by the Advertising Manager of the Metro Media Times, Inc., the publisher of the said newspaper. Defendant, however, failed to file his answer to the complaint despite the lapse of the period of sixty (60) days from the last publication; hence, upon motion of the plaintiffs, through counsel, defendant was declared in default and plaintiffs were authorized to present their evidence ex parte. In support of the complaint, plaintiffs presented as witnesses the minor Karen E. Salvacion, her father, Federico N. Salvacion, Jr., a certain Joseph Aguilar and a certain Liberato Madulio, who gave the following testimony: Karen took her first year high school in St. Mary's Academy in Pasay City but has recently transferred to Arellano University for her second year.

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In the afternoon of February 4, 1989, Karen was at the Plaza Fair Makati Cinema Square, with her friend Edna Tangile whiling away her free time. At about 3:30 p.m. while she was finishing her snack on a concrete bench in front of Plaza Fair, an American approached her. She was then alone because Edna Tangile had already left, and she was about to go home. (TSN, Aug. 15, 1989, pp. 2 to 5) The American asked her name and introduced himself as Greg Bartelli. He sat beside her when he talked to her. He said he was a Math teacher and told her that he has a sister who is a nurse in New York. His sister allegedly has a daughter who is about Karen's age and who was with him in his house along Kalayaan Avenue. (TSN, Aug. 15, 1989, pp. 4-5) The American asked Karen what was her favorite subject and she told him it's Pilipino. He then invited her to go with him to his house where she could teach Pilipino to his niece. He even gave her a stuffed toy to persuade her to teach his niece. (Id., pp. 5-6) They walked from Plaza Fair along Pasong Tamo, turning right to reach the defendant's house along Kalayaan Avenue. (Id., p. 6) When they reached the apartment house, Karen noticed that defendant's alleged niece was not outside the house but defendant told her maybe his niece was inside. When Karen did not see the alleged niece inside the house, defendant told her maybe his niece was upstairs, and invited Karen to go upstairs. (Id., p. 7) Upon entering the bedroom defendant suddenly locked the door. Karen became nervous because his niece was not there. Defendant got a piece of cotton cord and tied Karen's hands with it, and then he undressed her. Karen cried for help but defendant strangled her. He took a packing tape and he covered her mouth with it and he circled it around her head. (Id., p. 7) Then, defendant suddenly pushed Karen towards the bed which was just near the door. He tied her feet and hands spread apart to the bed posts. He knelt in front of her and inserted his finger in her sex organ. She felt severe pain. She tried to shout but no sound could come out because there were tapes on her mouth. When defendant withdrew his finger it was full of blood and Karen felt more pain after the withdrawal of the finger. (Id., p. 8) He then got a Johnson's Baby Oil and he applied it to his sex organ as well as to her sex organ. After that he forced his sex organ into her but he was not able to do so. While he was doing it, Karen found it difficult to breathe and she perspired a lot while feeling severe pain. She merely presumed that he was able to insert his sex organ a little, because she could not see. Karen could not recall how long the defendant was in that position. (Id. pp. 8-9) After that, he stood up and went to the bathroom to wash. He also told Karen to take a shower and he untied her hands. Karen could only hear the sound of the water while the defendant, she presumed, was in the bathroom washing his sex organ. When she took a shower more blood came out from her. In the meantime, defendant changed the mattress because it was full of blood. After the shower, Karen was allowed by defendant to sleep. She fell asleep because she got tired crying. The incident happened at about 4:00 p.m. Karen had no way of determining the exact time because defendant removed her watch. Defendant did not care to give her food before she went to sleep. Karen woke up at about 8:00 o'clock the following morning. (Id., pp. 9-10) The following day, February 5, 1989, a Sunday, after a breakfast of biscuit and coke at about 8:30 to 9:00 a.m. defendant raped Karen while she was still bleeding. For lunch, they also took biscuit and coke. She was raped for the second time at about 12:00 to 2:00 p.m. In the evening, they had rice for dinner which defendant had stored downstairs; it was he who cooked the rice that is why it looks like "lugaw". For the third time, Karen was raped again during the night. During those three times defendant succeeded in inserting his sex organ but she could not say whether the organ was inserted wholly. Karen did not see any firearm or any bladed weapon. The defendant did not tie her hands and feet nor put a tape on her mouth anymore but she did not cry for help for fear that she might be killed; besides, all the windows and doors were closed. And even if she shouted for help, nobody would hear her. She was so afraid that if somebody would hear her and would be able to call the police, it was still possible that as she was still inside the house, defendant might kill her. Besides, the defendant did not leave that Sunday, ruling out her chance to call for help. At nighttime he slept with her again. (TSN, Aug. 15, 1989, pp. 12-14) On February 6, 1989, Monday, Karen was raped three times, once in the morning for thirty minutes after a breakfast of biscuits; again in the afternoon; and again in the evening. At first, Karen did not know that there was a window because everything was covered by a carpet, until defendant opened the window for around fifteen minutes or less to let some air in, and she found that the window was covered by styrofoam and plywood. After that, he again closed the window with a hammer and he put the styrofoam, plywood, and carpet back. (Id., pp. 14-15) That Monday evening, Karen had a chance to call for help, although defendant left but kept the door closed. She went to the bathroom and saw a small window covered by styrofoam and she also spotted a small hole. She stepped on the bowl and she cried for help through the hole. She cried: "Maawa no po kayo so akin. Tulungan n'yo akong makalabas dito. Kinidnap ako!" Somebody heard her. It was a woman, probably a neighbor, but she got angry and said she was "istorbo". Karen pleaded for help and the woman told her to sleep and she will call the police. She finally fell asleep but no policeman came. (TSN, Aug. 15, 1989, pp. 15-16) She woke up at 6:00 o'clock the following morning, and she saw defendant in bed, this time sleeping. She waited for him to wake up. When he woke up, he again got some food but he always kept the door locked. As usual, she was merely fed with biscuit and coke. On that day, February 7, 1989, she was again raped three times. The first at about 6:30 to 7:00 a.m., the second at about 8:30 9:00, and the third was after lunch at 12:00 noon. After he had raped her for the second time he left but only for a short while. Upon his return, he caught her shouting for help but he did not understand what she was shouting about. After she was raped the third time, he left the house. (TSN, Aug. 15, 1989, pp. 16-17) She again went to the bathroom and shouted for help. After shouting for about five minutes, she heard many voices. The voices were asking for her name and she gave her name as Karen Salvacion.

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After a while, she heard a voice of a woman saying they will just call the police. They were also telling her to change her clothes. She went from the bathroom to the room but she did not change her clothes being afraid that should the neighbors call for the police and the defendant see her in different clothes, he might kill her. At that time she was wearing a T-shirt of the American because the latter washed her dress. (Id., p. 16) Afterwards, defendant arrived and he opened the door. He asked her if she had asked for help because there were many policemen outside and she denied it. He told her to change her clothes, and she did change to the one she was wearing on Saturday. He instructed her to tell the police that she left home and willingly; then he went downstairs but he locked the door. She could hear people conversing but she could not understand what they were saying. (Id., p. 19) When she heard the voices of many people who were conversing downstairs, she knocked repeatedly at the door as hard as she could. She heard somebody going upstairs and when the door was opened, she saw a policeman. The policeman asked her name and the reason why she was there. She told him she was kidnapped. Downstairs, he saw about five policemen in uniform and the defendant was talking to them. "Nakikipag-areglo po sa mga pulis," Karen added. "The policeman told him to just explain at the precinct. (Id., p. 20) They went out of the house and she saw some of her neighbors in front of the house. They rode the car of a certain person she called Kuya Boy together with defendant, the policeman, and two of her neighbors whom she called Kuya Bong Lacson and one Ate Nita. They were brought to Sub-Station I and there she was investigated by a policeman. At about 2:00 a.m., her father arrived, followed by her mother together with some of their neighbors. Then they were brought to the second floor of the police headquarters. (Id., p. 21) At the headquarters, she was asked several questions by the investigator. The written statement she gave to the police was marked as Exhibit A. Then they proceeded to the National Bureau of Investigation together with the investigator and her parents. At the NBI, a doctor, a medico-legal officer, examined her private parts. It was already 3:00 in the early morning of the following day when they reached the NBI. (TSN, Aug. 15, 1989, p. 22) The findings of the medico-legal officer has been marked as Exhibit B. She was studying at the St. Mary's Academy in Pasay City at the time of the incident but she subsequently transferred to Apolinario Mabini, Arellano University, situated along Taft Avenue, because she was ashamed to be the subject of conversation in the school. She first applied for transfer to Jose Abad Santos, Arellano University along Taft Avenue near the Light Rail Transit Station but she was denied admission after she told the school the true reason for her transfer. The reason for their denial was that they might be implicated in the case. (TSN, Aug. 15, 1989, p. 46) xxx xxx xxx After the incident, Karen has changed a lot. She does not play with her brother and sister anymore, and she is always in a state of shock; she has been absent-minded and is ashamed even to go out of the house. (TSN, Sept. 12, 1989, p. 10) She appears to be restless or sad, (Id., p. 11) The father prays for P500,000.00 moral damages for Karen for this shocking experience which probably, she would always recall until she reaches old age, and he is not sure if she could ever recover from this experience. (TSN, Sept. 24, 1989, pp. 10-11) Pursuant to an Order granting leave to publish notice of decision, said notice was published in the Manila Bulletin once a week for three consecutive weeks. After the lapse of fifteen (15) days from the date of the last publication of the notice of judgment and the decision of the trial court had become final, petitioners tried to execute on Bartelli's dollar deposit with China Banking Corporation. Likewise, the bank invoked Section 113 of Central Bank Circular No. 960. Thus, petitioners decided to seek relief from this Court. The issues raised and the arguments articulated by the parties boil down to two: May this Court entertain the instant petition despite the fact that original jurisdiction in petitions for declaratory relief rests with the lower court? Should Section 113 of Central Bank Circular No. 960 and Section 8 of R.A. 6426, as amended by P.D. 1246, otherwise known as the Foreign Currency Deposit Act be made applicable to a foreign transient? Petitioners aver as heretofore stated that Section 113 of Central Bank Circular No. 960 providing that "Foreign currency deposits shall be exempt from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever." should be adjudged as unconstitutional on the grounds that: 1.) it has taken away the right of petitioners to have the bank deposit of defendant Greg Bartelli y Northcott garnished to satisfy the judgment rendered in petitioners' favor in violation of substantive due process guaranteed by the Constitution; 2.) it has given foreign currency depositors an undue favor or a class privilege in violation of the equal protection clause of the Constitution; 3.) it has provided a safe haven for criminals like the herein respondent Greg Bartelli y Northcott since criminals could escape civil liability for their wrongful acts by merely converting their money to a foreign currency and depositing it in a foreign currency deposit account with an authorized bank; and 4.) The Monetary Board, in issuing Section 113 of Central Bank Circular No. 960 has exceeded its delegated quasi-legislative power when it took away: a.) the plaintiffs substantive right to have the claim sought to be enforced by the civil action secured by way of the writ of preliminary attachment as granted by Rule 57 of the Revised Rules of Court; b.) the plaintiffs substantive right to have the judgment credit satisfied by way of the writ of execution out of the bank deposit of the judgment debtor as granted to the judgment creditor by Rule 39 of the Revised Rules of Court, which is beyond its power to do so. On the other hand, respondent Central Bank, in its Comment alleges that the Monetary Board in issuing Section 113 of CB Circular No. 960 did not exceed its power or authority because the subject Section is copied verbatim from a portion of R.A. No. 6426 as amended by P.D. 1246. Hence, it was not the Monetary Board that grants exemption from attachment or garnishment to foreign currency deposits, but the law (R.A. 6426 as amended) itself;

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that it does not violate the substantive due process guaranteed by the Constitution because a.) it was based on a law; b.) the law seems to be reasonable; c.) it is enforced according to regular methods of procedure; and d.) it applies to all members of a class. Expanding, the Central Bank said; that one reason for exempting the foreign currency deposits from attachment, garnishment or any other order or process of any court, is to assure the development and speedy growth of the Foreign Currency Deposit System and the Offshore Banking System in the Philippines; that another reason is to encourage the inflow of foreign currency deposits into the banking institutions thereby placing such institutions more in a position to properly channel the same to loans and investments in the Philippines, thus directly contributing to the economic development of the country; that the subject section is being enforced according to the regular methods of procedure; and that it applies to all foreign currency deposits made by any person and therefore does not violate the equal protection clause of the Constitution. Respondent Central Bank further avers that the questioned provision is needed to promote the public interest and the general welfare; that the State cannot just stand idly by while a considerable segment of the society suffers from economic distress; that the State had to take some measures to encourage economic development; and that in so doing persons and property may be subjected to some kinds of restraints or burdens to secure the general welfare or public interest. Respondent Central Bank also alleges that Rule 39 and Rule 57 of the Revised Rules of Court provide that some properties are exempted from execution/attachment especially provided by law and R.A. No. 6426 as amended is such a law, in that it specifically provides, among others, that foreign currency deposits shall be exempted from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever. For its part, respondent China Banking Corporation, aside from giving reasons similar to that of respondent Central Bank, also stated that respondent China Bank is not unmindful of the inhuman sufferings experienced by the minor Karen E. Salvacion from the beastly hands of Greg Bartelli; that it is only too willing to release the dollar deposit of Bartelli which may perhaps partly mitigate the sufferings petitioner has undergone; but it is restrained from doing so in view of R.A. No. 6426 and Section 113 of Central Bank Circular No. 960; and that despite the harsh effect of these laws on petitioners, CBC has no other alternative but to follow the same. This Court finds the petition to be partly meritorious. Petitioner deserves to receive the damages awarded to her by the court. But this petition for declaratory relief can only be entertained and treated as a petition for mandamus to require respondents to honor and comply with the writ of execution in Civil Case No. 89-3214. This Court has no original and exclusive jurisdiction over a petition for declaratory relief. 2 However, exceptions to this rule have been recognized. Thus, where the petition has far-reaching implications and raises questions that should be resolved, it may be treated as one for mandamus. 3 Here is a child, a 12-year old girl, who in her belief that all Americans are good and in her gesture of kindness by teaching his alleged niece the Filipino language as requested by the American, trustingly went with said stranger to his apartment, and there she was raped by said American tourist Greg Bartelli. Not once, but ten times. She was detained therein for four (4) days. This American tourist was able to escape from the jail and avoid punishment. On the other hand, the child, having received a favorable judgment in the Civil Case for damages in the amount of more than P1,000,000.00, which amount could alleviate the humiliation, anxiety, and besmirched reputation she had suffered and may continue to suffer for a long, long time; and knowing that this person who had wronged her has the money, could not, however get the award of damages because of this unreasonable law. This questioned law, therefore makes futile the favorable judgment and award of damages that she and her parents fully deserve. As stated by the trial court in its decision, Indeed, after hearing the testimony of Karen, the Court believes that it was undoubtedly a shocking and traumatic experience she had undergone which could haunt her mind for a long, long time, the mere recall of which could make her feel so humiliated, as in fact she had been actually humiliated once when she was refused admission at the Abad Santos High School, Arellano University, where she sought to transfer from another school, simply because the school authorities of the said High School learned about what happened to her and allegedly feared that they might be implicated in the case. xxx xxx xxx The reason for imposing exemplary or corrective damages is due to the wanton and bestial manner defendant had committed the acts of rape during a period of serious illegal detention of his hapless victim, the minor Karen Salvacion whose only fault was in her being so naive and credulous to believe easily that defendant, an American national, could not have such a bestial desire on her nor capable of committing such a heinous crime. Being only 12 years old when that unfortunate incident happened, she has never heard of an old Filipino adage that in every forest there is a snake, . . . . 4 If Karen's sad fate had happened to anybody's own kin, it would be difficult for him to fathom how the incentive for foreign currency deposit could be more important than his child's rights to said award of damages; in this case, the victim's claim for damages from this alien who had the gall to wrong a child of tender years of a country where he is a mere visitor. This further illustrates the flaw in the questioned provisions. It is worth mentioning that R.A. No. 6426 was enacted in 1983 or at a time when the country's economy was in a shambles; when foreign investments were minimal and presumably, this was the reason why said statute was enacted. But the realities of the present times show that the country has recovered economically; and even if not, the questioned law still denies those entitled to due process of law for being unreasonable and oppressive. The intention of the questioned law may be good when enacted. The law failed to anticipate the iniquitous effects producing outright injustice and inequality such as the case before us. It has thus been said that But I also know, 5 that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths are disclosed and manners and opinions change with the

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change of circumstances, institutions must advance also, and keep pace with the times. . . We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors. In his Comment, the Solicitor General correctly opined, thus: The present petition has far-reaching implications on the right of a national to obtain redress for a wrong committed by an alien who takes refuge under a law and regulation promulgated for a purpose which does not contemplate the application thereof envisaged by the alien. More specifically, the petition raises the question whether the protection against attachment, garnishment or other court process accorded to foreign currency deposits by PD No. 1246 and CB Circular No. 960 applies when the deposit does not come from a lender or investor but from a mere transient or tourist who is not expected to maintain the deposit in the bank for long. The resolution of this question is important for the protection of nationals who are victimized in the forum by foreigners who are merely passing through. xxx xxx xxx . . . Respondents China Banking Corporation and Central Bank of the Philippines refused to honor the writ of execution issued in Civil Case No. 89-3214 on the strength of the following provision of Central Bank Circular No. 960: Sec. 113. Exemption from attachment. Foreign currency deposits shall be exempt from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever. Central Bank Circular No. 960 was issued pursuant to Section 7 of Republic Act No. 6426: Sec. 7. Rules and Regulations. The Monetary Board of the Central Bank shall promulgate such rules and regulations as may be necessary to carry out the provisions of this Act which shall take effect after the publication of such rules and regulations in the Official Gazette and in a newspaper of national circulation for at least once a week for three consecutive weeks. In case the Central Bank promulgates new rules and regulations decreasing the rights of depositors, the rules and regulations at the time the deposit was made shall govern. The aforecited Section 113 was copied from Section 8 of Republic Act NO. 6426, as amended by P.D. 1246, thus: Sec. 8. Secrecy of Foreign Currency Deposits. All foreign currency deposits authorized under this Act, as amended by Presidential Decree No. 1035, as well as foreign currency deposits authorized under Presidential Decree No. 1034, are hereby declared as and considered of an absolutely confidential nature and, except upon the written permission of the depositor, in no instance shall such foreign currency deposits be examined, inquired or looked into by any person, government official, bureau or office whether judicial or administrative or legislative or any other entity whether public or private: Provided, however, that said foreign currency deposits shall be exempt from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever. The purpose of PD 1246 in according protection against attachment, garnishment and other court process to foreign currency deposits is stated in its whereases, viz.: WHEREAS, under Republic Act No. 6426, as amended by Presidential Decree No. 1035, certain Philippine banking institutions and branches of foreign banks are authorized to accept deposits in foreign currency; WHEREAS, under the provisions of Presidential Decree No. 1034 authorizing the establishment of an offshore banking system in the Philippines, offshore banking units are also authorized to receive foreign currency deposits in certain cases; WHEREAS, in order to assure the development and speedy growth of the Foreign Currency Deposit System and the Offshore Banking System in the Philippines, certain incentives were provided for under the two Systems such as confidentiality of deposits subject to certain exceptions and tax exemptions on the interest income of depositors who are nonresidents and are not engaged in trade or business in the Philippines; WHEREAS, making absolute the protective cloak of confidentiality over such foreign currency deposits, exempting such deposits from tax, and guaranteeing the vested rights of depositors would better encourage the inflow of foreign currency deposits into the banking institutions authorized to accept such deposits in the Philippines thereby placing such institutions more in a position to properly channel the same to loans and investments in the Philippines, thus directly contributing to the economic development of the country; Thus, one of the principal purposes of the protection accorded to foreign currency deposits is "to assure the development and speedy growth of the Foreign Currency Deposit system and the Offshore Banking in the Philippines" (3rd Whereas). The Offshore Banking System was established by PD No. 1034. In turn, the purposes of PD No. 1034 are as follows:

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WHEREAS, conditions conducive to the establishment of an offshore banking system, such as political stability, a growing economy and adequate communication facilities, among others, exist in the Philippines; WHEREAS, it is in the interest of developing countries to have as wide access as possible to the sources of capital funds for economic development; WHEREAS, an offshore banking system based in the Philippines will be advantageous and beneficial to the country by increasing our links with foreign lenders, facilitating the flow of desired investments into the Philippines, creating employment opportunities and expertise in international finance, and contributing to the national development effort. WHEREAS, the geographical location, physical and human resources, and other positive factors provide the Philippines with the clear potential to develop as another financial center in Asia; On the other hand, the Foreign Currency Deposit system was created by PD. No. 1035. Its purposes are as follows: WHEREAS, the establishment of an offshore banking system in the Philippines has been authorized under a separate decree; WHEREAS, a number of local commercial banks, as depository bank under the Foreign Currency Deposit Act (RA No. 6426), have the resources and managerial competence to more actively engage in foreign exchange transactions and participate in the grant of foreign currency loans to resident corporations and firms; WHEREAS, it is timely to expand the foreign currency lending authority of the said depository banks under RA 6426 and apply to their transactions the same taxes as would be applicable to transaction of the proposed offshore banking units; It is evident from the above [Whereas clauses] that the Offshore Banking System and the Foreign Currency Deposit System were designed to draw deposits from foreign lenders and investors (Vide second Whereas of PD No. 1034; third Whereas of PD No. 1035). It is these deposits that are induced by the two laws and given protection and incentives by them. Obviously, the foreign currency deposit made by a transient or a tourist is not the kind of deposit encouraged by PD Nos. 1034 and 1035 and given incentives and protection by said laws because such depositor stays only for a few days in the country and, therefore, will maintain his deposit in the bank only for a short time. Respondent Greg Bartelli, as stated, is just a tourist or a transient. He deposited his dollars with respondent China Banking Corporation only for safekeeping during his temporary stay in the Philippines. For the reasons stated above, the Solicitor General thus submits that the dollar deposit of respondent Greg Bartelli is not entitled to the protection of Section 113 of Central Bank Circular No. 960 and PD No. 1246 against attachment, garnishment or other court processes. 6 In fine, the application of the law depends on the extent of its justice. Eventually, if we rule that the questioned Section 113 of Central Bank Circular No. 960 which exempts from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever, is applicable to a foreign transient, injustice would result especially to a citizen aggrieved by a foreign guest like accused Greg Bartelli. This would negate Article 10 of the New Civil Code which provides that "in case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail. "Ninguno non deue enriquecerse tortizeramente con dano de otro." Simply stated, when the statute is silent or ambiguous, this is one of those fundamental solutions that would respond to the vehement urge of conscience. (Padilla vs. Padilla, 74 Phil. 377). It would be unthinkable, that the questioned Section 113 of Central Bank No. 960 would be used as a device by accused Greg Bartelli for wrongdoing, and in so doing, acquitting the guilty at the expense of the innocent. Call it what it may but is there no conflict of legal policy here? Dollar against Peso? Upholding the final and executory judgment of the lower court against the Central Bank Circular protecting the foreign depositor? Shielding or protecting the dollar deposit of a transient alien depositor against injustice to a national and victim of a crime? This situation calls for fairness against legal tyranny. We definitely cannot have both ways and rest in the belief that we have served the ends of justice. IN VIEW WHEREOF, the provisions of Section 113 of CB Circular No. 960 and PD No. 1246, insofar as it amends Section 8 of R.A. No. 6426 are hereby held to be INAPPLICABLE to this case because of its peculiar circumstances. Respondents are hereby REQUIRED to COMPLY with the writ of execution issued in Civil Case No. 89-3214, "Karen Salvacion, et al. vs. Greg Bartelli y Northcott, by Branch CXLIV, RTC Makati and to RELEASE to petitioners the dollar deposit of respondent Greg Bartelli y Northcott in such amount as would satisfy the judgment. SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Francisco and Panganiban, JJ., concur.

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Padilla, J., took no part. Mendoza and Hermosisima, Jr., JJ., are on leave.

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EN BANC

G.R. No. 161418

April 28, 2004

NOEL Y. REPOL, petitioner, vs. COMMISSION ON ELECTIONS and VIOLETO CERACAS, respondents.

DECISION

CARPIO, J.:

The Case Petitioner Noel Y. Repol ("Repol") filed this Petition for Certiorari1 on 21 January 2004 alleging that the Commission on Elections ("COMELEC") First Division2 committed grave abuse of discretion in issuing the Order dated 12 January 2004 ("Order") in SPR Case No. 1-2004. The Order directed "the parties to maintain theSTATUS QUO ANTE, which is the condition prevailing before the issuance and implementation of the questioned Order of the court a quo dated January 5, 2004 in Election Case No. T-001 entitled, Noel Y. Repol versus Violeto Ceracas." The Facts Repol and private respondent Violeto Ceracas ("Ceracas") were candidates for Municipal Mayor of Pagsanghan, Samar in the 14 May 2001 elections. On 16 May 2001, Ceracas was proclaimed as the duly elected mayor with 66 votes more than Repol. On 23 May 2001, Repol filed an election protest before the Regional Trial Court of Tarangnan, Samar, Branch 40 ("trial court"), docketed as Election Case No. T-001. Claiming that fraud and other irregularities marred the elections in Precincts 3A, 5A and 71, Repol prayed for revision of the ballots in these precincts. Judge Francisco Mazo dismissed the election protest on 28 August 2001. On certiorari, the COMELEC First Division reversed the dismissal order of Judge Mazo in a Resolution dated 22 May 2002 "for being issued with grave abuse of discretion tantamount to lack of jurisdiction." The COMELEC First Division directed the trial court "to reinstate the subject election protest, conduct the revision of ballots from the protested precincts and render its Decision with immediate dispatch." On 18 September 2003, the COMELEC en banc denied Ceracass motion to reconsider the Resolution dated 22 May 2002. The COMELEC en banc affirmed in toto the reinstatement of Repols election protest. This time around, trial and revision of the ballots ensued with Judge Roberto A. Navidad presiding. On 30 December 2003, the trial court declared Ceracass proclamation void and proclaimed Repol the duly elected mayor of Pagsanghan, Samar. The trial court explained thus: After a very careful study and meticulous and painstaking appraisal of the contested ballots, the Court finds and so holds that the cheating and commission of various frauds and irregularities in these three contested precincts was massive, used many people to fill up the ballots including the voters, connivance with those perpetrating the fraud and the members of the Board of Election Inspectors, the perpetrators of the fraud enjoyed the luxury of time to perpetrate the fraud and filling the ballots, that filling up of some of the ballots was done outside of the voting booth and it is not difficult to finally find the answers to the questions of the Protestant as to wherever and whatever happened to the 24 excess ballots it noted in precinct 3A (Barangay Canlapwas) and 21 excess ballots in precinct 5A (Brgy. Sto. Ninio). From the foregoing peculiar facts and circumstances it is clearly evident that the electoral fraud was perpetrated by the use of some ballots as shuttles [lanzadera], by which device, the ballots of the voters who are not skilled in the act of writing or whose fidelity to party is in doubt is illegally written out for them by others. It is likewise not hard to find the answers why the sisters in law of the Protestee were illegally at the table of the BEI Chairman controlling the voting process and even angrily and at the top of their voices demanding that some voters be allowed to vote as illiterates even though there were no proper identifications and indications that indeed they were illiterates. Or why the Minutes of Voting in precinct 5A is not the printed one. It only means that there was something to hide. After a very careful study, meticulous and painstaking appraisal of the ballots the Court finds that the handwriting of one person in some of the ballots in one precinct are also found in the other two precincts. Thus, the handwriting in the ballots in Exhibits 1, 12, 24, 27, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 51, 53 all in Precinct 3A (Canlapwas) is the same handwriting as in the ballots in Exhs. 3, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 38, 39, 40, 56, 57, 58, 59 all in Precinct 5A (Sto. Ninio) and is also the same handwriting in the ballots in Exhs. 3, 12, 13, 14, 25, 30, 36, 38, 41, 44, 49, 51, 52 all in Precinct 7A (Buenos Aires). The handwriting in the ballots in Exhs. 3, 6, 8, 9, 10, 13, 16, 19, 21, 22, 23, 26 all of Precinct 3A (Canlapwas) is the same handwriting in the ballots in Exhs. 12, 34, 35, 37, 43, 44, 45, 49, 50, 51, 52, 53, 54, 55, 60, 61, 64, 65, 68, 69, 70, 71 all precinct 5A (Sto. Ninio) is the same handwriting in the ballots in Exhs. 10, 26, 27, 28, 29, 36, 61, 62, 65, 66, 67 all of precinct 7A (Buenos Aires). Likewise, the other handwriting in the ballots in Exhs. 4, 48, 60, 61, 64 and 65 all in precinct 3A (Canlapwas) is the same handwriting in the ballots in Exhs. 14, 15, 16, 17, 18, 19, 20, 21, 22 all in precinct 5A (Sto. Ninio) is the same handwriting in the ballots in Exhs. 40, and 47 all in precinct 7A (Buenos Aires).

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Likewise, the handwriting in the ballots in Exhs. 11, 8, 20, 30 all of Precinct 3A (Canlapwas) is the same handwriting in the ballots in Exhs. 46, 47, 48, 63 all in precinct 5A (Sto. Ninio). In like manner, the handwriting in the ballots in Exhs. 2, 7, 14, 35, 36 all in precinct 3A (Canlapwas) is the same handwriting in the ballots in Exhs. 6, 7, 36, all in precinct 5A (Sto. Ninio). All these ballots should not be counted in favor of the Protestee. Further, the following ballots are marked for their being written with or unnecessary decorations serving to easily identify his vote. Accordingly, they should not be counted in favor of the protestee. These ballots are: 1. Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 all of Precinct 5A (Sto. Ninio) and 2. Exhs. 1, 2 and 3 all of precinct 7A (Buenos Aires). Clearly, the will of the electorate was fraudulently substituted by the will of the perpetrators of the fraud. All in all a total of 142 votes had been illegally counted in favor of the Protestee. Deducting 66 from 142 we get a total of 76. In other words, the Protestant garnered a majority of 76 votes over that of the protestee.3 In light of these findings, the trial court rendered judgment as follows: WHEREFORE, and in view of the foregoing, judgment is hereby rendered DECLARING as null and void the proclamation of the Protestee and instead hereby PROCLAIM AND DECLARE, NOEL Y. REPOL, the duly elected Mayor of Pagsanghan, Samar in the May 2001 elections with a majority of 77 votes.4 Repol filed before the trial court a motion for execution pending appeal. On 5 January 2004, the trial court granted Repols motion and issued a writ of execution. Meanwhile, Ceracas appealed the trial courts judgment to the COMELEC. On 6 January 2004, Repol took his oath of office as the duly elected mayor of Pagsanghan, Samar. On the same date, Ceracas filed before the trial court an omnibus motion to reconsider, set aside and quash the writ of execution. During the pendency of Ceracass appeal with the COMELEC and without waiting for the trial court to resolve his omnibus motion, Ceracas filed with the COMELEC a Petition for Certiorari (with prayer for temporary restraining order, writ of preliminary injunction and/or status quo ante) assailing the writ of execution, docketed as SPR No. 1-2004.5 On 12 January 2004, the COMELEC First Division issued the assailed Order directing the parties to maintain the status quo ante. The Order reads in part: Acting on the Petition for Certiorari with Prayer for the issuance of Temporary Restraining Order, Writ of Preliminary Injunction and/or Status Quo Ante Order filed by Petitioner Violeto Ceracas through counsel on January 8, 2004, the Commission (First Division) hereby directs respondents to file their Answer within ten (10) days from receipt hereof. The application for the Writ of Preliminary Injunction shall be heard on January 29, 2004 at ten oclock in the morning at the Comelec Session Hall, Intramuros, Manila. In the interest of justice and so as not to render the issues moot and academic, the Comelec (First Division) hereby directs the parties to maintain the STATUS QUO ANTE, which is the condition prevailing before the issuance and implementation of the questioned Order of the court a quo dated January 5, 2004 in Election Case No. T-001, entitled, "Noel Y. Repol versus Violeto Ceracas". Accordingly, effective immediately, private respondent Noel Repol, is hereby ordered to cease and desist from assuming the duties and functions of Municipal Mayor of Pagsanghan, Western Samar until further orders from this Commission. In the meantime, petitioner Violeto Ceracas shall assume the post of Municipal Mayor of Pagsanghan, Western Samar. The Provincial Election Supervisor of Samar and the Provincial Director of the Philippine National Police (PNP), Catbalogan, Samar, are hereby directed to immediately implement this Order and make a return of service within five (5) days from the implementation thereof. The Clerk of Commission is hereby directed to serve a copy of this Order together with a copy of the Petition to each of the respondents.6 (Emphasis supplied) At the scheduled hearing on 29 January 2004, the COMELEC First Division issued an order which reads in full: In todays hearing of the application for a Writ of Preliminary Injunction prayed for in the above entitled petition, Atty. Sixto S. Brillantes appeared for the petitioner, while Attys. Baltazar Y. Repol and Farah D. Repol appeared for the private respondent. Both parties argued on their respective legal positions.

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In view of the pendency of the petition for certiorari filed by private respondent with the Supreme Court questioning the status quo ante issued on January 12, 2004, both parties are hereby given five (5) days from today or until February 3, 2004 to file their respective memoranda on the issue of whether this Commission can resolve on the Application for a Writ of Preliminary Injunction despite the pendency of the said petition. Parties may likewise include in their memoranda authorities and arguments on the life span of a status quo ante Order issued by the Commission. Thereafter, with or without the said memoranda, the said issue shall be deemed submitted for resolution. SO ORDERED. Hence, the instant petition. The Issues Repol raises the sole issue of WHETHER THE COMELEC IS EMPOWERED UNDER ANY STATUTE, RULE, OR JURISPRUDENCE TO ISSUE A STATUS QUO ANTE IN EFFECT OVERTURNING THE EFFECTIVE ENFORCEMENT OF THE WRIT OF EXECUTION ISSUED BY THE TRIAL COURT AND SUSPENDING INDEFINITELY, WITHOUT PRIOR NOTICE AND HEARING, THE IMPLEMENTATION OF SUCH WRIT.7 Repol argues that the COMELEC First Division acted with grave abuse of discretion in issuing the status quo anteOrder which indefinitely suspended and effectively nullified the trial courts writ of execution. Repol contends that the COMELEC First Division has no authority to issue the Order after the trial court found the election in the protested precincts marred by fraud and after the trial court considered meritorious the grounds cited by Repol in his motion for execution pending appeal. According to Repol, the law, rule and jurisprudence limit the COMELECs power to issue temporary restraining orders to a non-extendible period of 20 days from the date of issuance. Ceracas agrees with Repol that the rules do not expressly grant to the COMELEC the power to issue status quo ante orders. However, Ceracas argues that the COMELECs power to issue temporary restraining orders and preliminary injunctions necessarily includes the power to issue status quo ante orders. On the other hand, the Office of the Solicitor General (OSG) appearing on behalf of the COMELEC, prays that the Court dismiss the instant petition. The OSG asserts that Repol cannot challenge before this Court by way of a petition for certiorari an interlocutory order issued by a COMELEC Division without first filing a motion for reconsideration with the COMELEC en banc. The Courts Ruling The petition is meritorious. Remedy to Assail Interlocutory Orders of the COMELEC in Division Where the COMELEC in division allegedly committed grave abuse of discretion or acted without or in excess of jurisdiction in issuing an interlocutory order, the applicable rule is Section 5(c), Rule 3 of the 1993 COMELEC Rules of Procedure, which statesSection 5. Quorum; Votes Required. (a) x x x. (b) x x x. (c) Any motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved by the Commission en banc except motions on interlocutory orders of the division, which shall be resolved by the division which issued the order. (Emphasis supplied) The 12 January 2004 Order did not dispose of the case completely as there is something more to be done. Interlocutory orders merely rule on an incidental issue and do not terminate or finally dispose of the case as they leave something to be done before it is finally decided on the merits. 8 Since the COMELEC First Division issued the interlocutory Order of 12 January 2004, the same COMELEC First Division should resolve Repols motion for reconsideration of the Order. The remedy of the aggrieved party is neither to file a motion for reconsideration for certification to the COMELEC en banc nor to elevate the issue to this Court via a petition for certiorari under Rule 65 of the Rules of Civil Procedure. Section 5, Rule 19 of the 1993 COMELEC Rules of Procedure governs motions for reconsideration of decisions of a COMELEC Division, as follows: SEC. 5. How Motion for Reconsideration Disposed of. - Upon the filing of a motion to reconsider a decision, resolution, order or ruling of a Division, the Clerk of Court concerned shall, within twenty-four (24) hours from the filing thereof, notify the presiding Commissioner. The latter shall within two (2) days thereafter certify the case to the Commission en banc. In Gementiza v. Commission on Elections,9 the Court explained the import of this rule in this wise:

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Under the above-quoted rule, the acts of a Division that are subject of a motion for reconsideration must have a character of finality before the same can be elevated to the COMELEC en banc. The elementary rule is that an order is final in nature if it completely disposes of the entire case. But if there is something more to be done in the case after its issuance, that order is interlocutory. Only final orders of the COMELEC in Division may be raised before the COMELEC en banc. Section 3, Article IX-C of the 1987 Constitution mandates that only motions for reconsideration of final decisions shall be decided by the COMELEC en banc, thus: SEC. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in Division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. (Emphasis supplied) Under this constitutional provision, the COMELEC en banc shall decide motions for reconsideration only of "decisions" of a Division, meaning those acts having a final character.10 Clearly, the assailed status quo anteOrder, being interlocutory, should first be resolved by the COMELEC First Division via a motion for reconsideration. Furthermore, the present controversy does not fall under any of the instances over which the COMELEC en banccan take cognizance of the case. Section 2, Rule 3 of the 1993 COMELEC Rules of Procedure provides: SEC. 2. The Commission En Banc. The Commission shall sit en banc in cases hereinafter specifically provided, or in pre-proclamation cases upon a vote of a majority of the members of the Commission, or in all other cases where a division is not authorized to act, or where, upon a unanimous vote of all the Members of a Division, an interlocutory matter or issue relative to an action or proceeding before it is decided to be referred to the Commission en banc. The present case is not one of the cases specifically provided under the COMELEC Rules of Procedure in which the COMELEC may sit en banc. Neither is this case one where a division is not authorized to act nor a case where the members of the First Division unanimously voted to refer the issue to the COMELEC en banc. Thus, the COMELEC en banc is not even the proper forum where Repol may bring the assailed interlocutory Order for resolution. We held in Ambil, Jr. v. Commission on Elections11 that Under the existing Constitutional scheme, a party to an election case within the jurisdiction of the COMELEC in division can not dispense with the filing of a motion for reconsideration of a decision, resolution or final order of the Division of the Commission on Elections because the case would not reach the Comelec en banc without such motion for reconsideration having been filed x x x. Repol went directly to the Supreme Court from an interlocutory order of the COMELEC First Division. Section 7, Article IX of the 1987 Constitution prescribes the power of the Supreme Court to review decisions of the COMELEC, as follows: Section 7. Each commission shall decide by a majority vote of all its members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the commission or by the commission itself. Unless otherwise provided by this constitution or by law, any decision, order, or ruling of each commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. We have interpreted this constitutional provision to mean final orders, rulings and decisions of the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers.12 The decision must be a final decision or resolution of the COMELEC en banc.13 The Supreme Court has no power to review via certiorari14 an interlocutory order or even a final resolution of a Division of the COMELEC. Failure to abide by this procedural requirement constitutes a ground for dismissal of the petition.15 However, this rule is not ironclad. In ABS-CBN Broadcasting Corporation v. COMELEC,16 we stated This Court, however, has ruled in the past that this procedural requirement [of filing a motion for reconsideration] may be glossed over to prevent a miscarriage of justice, when the issue involves the principle of social justice or the protection of labor, when the decision or resolution sought to be set aside is a nullity, or when the need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available. The Court further pointed out in ABS-CBN that an exception was warranted under the peculiar circumstances of the case since there was hardly enough opportunity to move for a reconsideration and to obtain a swift resolution in time for the 11 May 1998 elections. The same can be said in Repols case. We rule that direct resort to this Court through a special civil action for certiorari is justified under the circumstances obtaining in the present case. Validity of the Status Quo Ante Order The main issue to be resolved in this petition is whether the COMELEC First Division acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the status quo ante Order which effectively overturned the trial courts grant of execution pending appeal in Repols favor. This issue is not mooted even if the next elections are just a few weeks away. The holding of periodic elections is a basic feature of our democratic government.17 To set aside the resolution of the issue now will only postpone a task that could well crop up again in future elections.18 We rule in the affirmative.

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First. Rule 30 of the 1993 COMELEC Rule of Procedure provides the metes and bounds on the COMELECs power to issue injunctive relief as follows: SECTION 1. Preliminary Injunction. - The Commission or any of its Divisions may grant preliminary injunction in any ordinary action, special action, special case, or special relief pending before it. SECTION 2. Grounds for issuance of preliminary injunction. - A preliminary injunction may be granted at any time after the commencement of an action or proceeding and before judgment when it is established that: (a) The petitioner or protestant is entitled to the relief demanded and the whole or part of such relief consists in restraining the commission or continuance of the acts complained of, or in the performance of an act or acts, either for a limited period or perpetually. (b) The commission or continuance of some act complained of during the pendency of the action or the non-performance thereof would work injustice to the petitioner or protestant. (c) The respondent or protestee is doing, threatens, or is about to do, or is procuring to be done, some act in violation of petitioners/protestants rights respecting the subject of the action, and tending to render the judgment ineffectual. SECTION 3. Grant of injunction discretionary. - The grant of the preliminary injunction is entirely left to the sound discretion of the Commission or its Divisions. SECTION 4. Bond for preliminary injunction. - No writ of preliminary injunction shall be issued unless the applicant shall file a bond, in an amount to be fixed by the Commission or the Division concerned, to the effect that the petitioner/protestant will pay to such party all damages which the latter may sustain by reason of the injunction if the Commission or the Division concerned shall finally decide that the petitioner/protestant was not entitled thereto. SECTION 5. Preliminary injunction not granted without notice; issuance of restraining order. - No preliminary injunction shall be granted without notice to the adverse party. If it shall appear from the facts shown by affidavits or the verified petition that great or irreparable injury would result to the applicant before the matter can be heard on notice, the Commission or any Division to which the application for preliminary injunction was made, may issue a restraining order to be effective only for a period of twenty days from date of its issuance. Within the said twenty-day period, the Commission or the Division, as the case may be, must cause an order to be served on the respondent requiring him to show cause, at a specified time and place, why the injunction should not be granted, and determine within the same period whether or not the preliminary injunction shall be granted and shall accordingly issue the corresponding order. In the event that the application for preliminary injunction is denied, the restraining order is deemed automatically vacated. (Emphasis supplied) A cursory reading of the Order dated 12 January 2004 or the so-called status quo ante Order reveals that it was actually a temporary restraining order. It ordered Repol to cease and desist from assuming the position of municipal mayor of Pagsanghan, Samar and directed Ceracas to assume the post in the meantime. The status quo ante Order had a life span of more than 20 days since the directive was qualified by the phrase "until further orders from this Commission." This violates the rule that a temporary retraining order has an effective period of only 20 days and automatically expires upon the COMELECs denial of the preliminary injunction. Thus, the status quo ante Order automatically ceased to have any effect after 1 February 2004 since the COMELEC First Division did not issue a writ of preliminary injunction. While the hearing on Ceracass application for a writ of preliminary injunction was held on 29 January 2004, the COMELEC First Division failed to resolve the application. Instead, it issued an Order directing the parties to file their memoranda until 3 February 2004 on their respective positions "on the life span of status quo ante orders and whether a writ of preliminary injunction should be granted in the case." Clearly, the COMELEC First Divisions indecision on the matter not only worked injustice to Repol but also failed to dispel the uncertainty beclouding the real choice of the electorate for municipal mayor. Second. The decision of the trial court in Election Case No. T-001 was rendered on 30 December 2003, or after almost one year of trial and revision of the questioned ballots. It found Repol as the candidate with the plurality of votes. The grant of execution pending appeal was well within the discretionary powers of the trial court.19 In the recent case of Edgar Y. Santos v. Commission on Elections (First Division) and Pedro Q. Panulaya,20 we ruled: Between the determination by the trial court of who of the candidates won the elections and the finding of the Board of Canvassers as to whom to proclaim, it is the courts decision that should prevail. This was sufficiently explained in the case of Ramas v. COMELEC in this wise: All that was required for a valid exercise of the discretion to allow execution pending appeal was that the immediate execution should be based "upon good reasons to be stated in a special order." The rationale why such execution is allowed in election cases is, as stated in Gahol v. Riodique, "to give as much recognition to the worth of a trial judges decision as that which is initially ascribed by the law to the proclamation by the board of canvassers." Thus: Why should the proclamation by the board of canvassers suffice as basis of the right to assume office, subject to future contingencies attendant to a protest, and not the decision of a court of justice? Indeed, when it is considered that the board of canvassers is composed of persons who are less technically prepared to make an accurate appreciation of the ballots, apart from their being more apt to yield to extraneous considerations, and that the board must act summarily, practically racing against time, while, on the other hand, the judge has the benefit of all the evidence the parties can offer and of admittedly better technical preparation and background, apart from his being allowed ample time for conscientious study and mature deliberation before rendering judgment, one cannot but perceive the wisdom of allowing the immediate

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execution of decisions in election cases adverse to the protestees, notwithstanding the perfection and pendency of appeals therefrom, as long as there are, in the sound discretion of the court, good reasons therefor. To deprive trial courts of their discretion to grant execution pending appeal would, in the words of Tobon Uy v. COMELEC, bring back the ghost of the "grab-the-proclamation-prolong the protest" techniques so often resorted to by devious politicians in the past in their efforts to perpetuate their hold to an elective office. This would, as a consequence, lay to waste the will of the electorate. Applying Santos to this petition, we hold that the COMELEC First Division committed grave abuse of discretion in setting aside the trial courts order granting execution pending appeal. Ceracas was Guilty of Forum Shopping We must point out that Ceracas is guilty of forum-shopping. At the time he instituted SPR Case No. 1-2004 with the COMELEC, he had a pending omnibus motion to reconsider, set aside and quash the writ of execution with the trial court. In addition, Ceracass appeal of the trial courts adverse decision was also pending before the COMELEC.21 Forum shopping is an act of a party, against whom an adverse judgment or order has been rendered in one forum, of seeking and possibly getting a favorable opinion in another forum, other than by appeal or special civil action for certiorari.22 It may also be the institution of two or more actions or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition.23 Due to a clear showing that Ceracas was forum-shopping, the COMELEC First Division, following our ruling inSantos,24 should have dismissed outright instead of giving due course to Ceracass petition in SPR No. 1-2004. WHEREFORE, the instant petition is GRANTED. The Order dated 12 January 2004 of the COMELEC First Division in SPR Case No. 1-2004 is ANNULLED and said case is ordered DISMISSED on the ground of forum-shopping. The Order dated 5 January 2004 of the Regional Trial Court of Tarangnan, Samar, Branch 40, granting the execution pending appeal of its decision in Election Case No. T-001, and the Writ of Execution issued pursuant thereto, are REINSTATED. The full enforcement of the said Writ must forthwith be made. This Decision shall be immediately executory. Davide, Jr., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.

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G. R. No. 120014

November 26, 2002

FRANCISCO Q. AURILLO, JR., petitioner, vs. NOEL RABI, and THE REGIONAL TRIAL COURT, Branch 9, Tacloban City, respondents.

DECISION

CALLEJO, SR., J.:

On January 10, 1995, Noel Rabi was arrested without a warrant of arrest and charged in the Office of the City Prosecutor of Tacloban City with violation of Presidential Decree No. 1866 (possession of unlicensed firearm). The matter was docketed as I.S. No. 95-043. Public Prosecutor Zenaida Camonical Isidro conducted an inquest investigation of the case and issued a resolution on January 11, 1995, recommending that the case be dismissed for lack of probable cause on her findings that the material averments of the Joint Affidavit1 executed by the arresting police officers were hearsay due to the absence of any affidavit of the complainant Rodolfo Cabaluna; and that the knife, gun and the live ammunitions referred to in said affidavit were not found under the chair occupied by Rabi. However, Regional State Prosecutor Francisco Aurillo, Jr. of Region VIII decided to assume jurisdiction over the case and to order the conduct of a new preliminary investigation thereof. On January 12, 1995, he issued a Regional Memorandum Order 2 to the City Prosecutor of Tacloban City directing him to elevate to his office the complete records of I.S. No. 95-043 within 24 hours from receipt thereof, pursuant to Presidential Decree No. 1275 in relation to Department Order No. 318 of the Department of Justice. Aurillo designated the assistant regional state prosecutor to conduct the new preliminary investigation of I.S. No. 95-043. On January 20, 1995, Aurillo issued another Memorandum Order3 to the City Prosecutor directing him to elevate the affidavit of Rodolfo Cabaluna as well as the subject firearm and knife to the Office of the Regional State Prosecutor with the information that it had taken over the preliminary investigation of the said complaint pursuant to PD 1275 and existing rules.4 The City Prosecutor of Tacloban complied with the order of Aurillo and on January 23, 1995, the Assistant Regional State Prosecutor issued a subpoena notifying Noel Rabi and Margot Villanueva of the preliminary investigation of I.S. No. 95-043 at 9:00 a.m. on February 2, 1995, not only for violation of PD 1866 but also for the crimes of "Violation of Comelec Resolution No. 2323 (gun banned) [sic], Batas Pambansa Bilang 9" (possession of deadly weapon) and "Malicious Mischief."5 When served with the subpoena on January 27, 1995, Rabi was aghast at the sudden turn of events. On the same date and barely a week before the scheduled preliminary investigation, his counsel forthwith filed with the Regional Trial Court of Tacloban City a petition for prohibition with prayer for a temporary restraining order or a writ of preliminary injunction. Rabi alleged that under the 1987 Revised Administrative Code and PD 1275 as implemented by Department Order No. 318 of the Department of Justice, a regional state prosecutor was vested only with administrative supervision over the city prosecutor and had no power to motu proprio review, revise, or modify the resolution of the city prosecutor on the latters conduct of a preliminary or inquest investigation of a criminal complaint filed directly therewith. Rabi contended that by taking over the preliminary investigation of I.S. No. 95-043 and conducting a new preliminary investigation of said case, Aurillo acted without jurisdiction or with grave abuse of discretion amounting to excess or lack of jurisdiction. Rabi thus prayed that, pending resolution of his plea for a writ of preliminary injunction, a temporary restraining order be issued to enjoin Aurillo from proceeding with the preliminary investigation of I.S. No. 95-043.6 Acting on the petition, the RTC issued a Temporary Restraining Order7 dated January 30, 1995, enjoining and prohibiting Aurillo and all others acting for and in his behalf from taking over and conducting a new preliminary investigation of I.S. No. 95-043 until the court shall have resolved the motion for issuance of a writ of preliminary injunction and the other issues raised in the petition. Aurillo received said order on January 30, 1995.8 In answer to the petition, Aurillo alleged that the same was premature as Rabi failed to exhaust all administrative remedies from the Secretary of Justice before filing the petition. He explained that he took over and ordered a new preliminary investigation by virtue of his prosecutorial powers under PD 1275, in relation to Department Order No. 318, the 1985 Rules of Criminal Procedure and Section 38(1), Chapter 7, Book No. IV of the Revised Administrative Code, vesting on him supervision and control over field prosecution officers in the region. He averred that such powers included the authority for him to take over the preliminary investigation of I.S. No. 95-043. Aurillo also claimed that he was not liable for damages for performing an ordinary and routinary function, the regularity of which is presumed.9 He further argued that claims for damages and attorneys fees under Rule 65 of the Revised Rules of Court is proscribed. During the February 15, 1995 hearing on Rabis motion for issuance of a writ of preliminary injunction, the parties marked in evidence their documentary evidence and orally argued their respective positions. Rabi did not testify to prove his claim for damages and attorneys fees. On the same date, the RTC issued an order declaring that the issue of whether or not the court will issue a writ of preliminary injunction was submitted for resolution and that it will issue a resolution thereon in five days time. However, the RTC failed to do so. Instead, on March 29, 1995, the RTC issued an order directing the parties to file their respective memoranda within five days from receipt thereof after which the petition will be deemed submitted for resolution.10 The parties did not object to the order. Nevertheless, on March 24, 1995, the assistant regional state prosecutor continued with his preliminary investigation of I.S. No. 95-043. Thereafter, with Aurillos approval, he filed with the RTC on April 4, 1995 an Information against Rabi for violation of PD 1866.11 On April 12, 1995, the RTC rendered judgment in favor of Rabi. The trial court nullified the preliminary investigation of I.S. No. 95-043 by the Office of the Regional State Prosecutor and the Information filed with the RTC against Rabi. It also ordered Aurillo to pay the amounts of P50,000.00 as moral damages, P50,000.00 as exemplary damages and P30,000.00 as attorneys fees.12 The RTC declared that under Department Order No. 318 of the Department of Justice, the power of a regional state prosecutor to conduct a preliminary investigation was confined solely to specific criminal cases and only when the Secretary of Justice directs him to do so. The trial court further held that without any order from the Secretary of Justice, Aurillo cannot motu proprio take over the preliminary investigation of a case already investigated by the city prosecutor or conduct a new one. The RTC awarded damages and attorneys fees to Rabi for Aurillos wanton disregard of the courts authority as shown by his filing of an Information against Rabi without authority from the Secretary of Justice. The trial court also nullified the Information filed by Aurillo against Rodolfo Cabaluna, Jr. and

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held that the filing thereof was made in utter disregard of simple demands of courtesy to the RTC, thereby preempting said courts resolution of the issues raised in the petition. Aurillo thereafter filed the instant petition for review on certiorari, on questions of law, against Rabi and the Regional Trial Court, Branch 9, Tacloban City. When required by the Court to file his comment on the petition, Rabi failed to do so. The petition shall thus be resolved by the Court on the basis of the petition and the annexes thereof. The issues posed in this case, as synthesized by the Court, are whether or not (a) the petition filed by Rabi with the RTC was premature; (b) Aurillo is empowered to motu proprio take over and conduct a preliminary investigation of I.S No. 95-043, after the inquest investigation thereof had already been terminated and approved by city prosecutor; (c) the Information filed by Aurillo against Rabi with the RTC for violation of PD 1866 may be nullified by said court, and (d) Aurillo is liable for damages and attorneys fees to Rabi. On the first issue, the general rule is that an aggrieved party is mandated to first exhaust all administrative remedies before filing a judicial action for redress from acts of administrative bodies or offices in the performance of their quasi-judicial functions; otherwise, said action may be dismissed for prematurity.13 However, the principle is not without exceptions. The aggrieved party may validly resort to immediate judicial action where the (a) question raised is purely legal; (b) when the act complained of is patently illegal; (c) when there is an urgent need for judicial intervention;14 (d) when the disputed act is performed without jurisdiction or in excess of jurisdiction; (e) the administrative remedy does not provide for a plain, speedy and adequate remedy; and (f) when due process is disregarded.15 In this case, the Investigating Prosecutor terminated the inquest investigation and came out with her resolution dismissing the case as approved by the City Prosecutor. On January 11, 1995, barely a day thereafter, Aurillo decided to take over the preliminary investigation of I.S. 95-043 and ordered the City Prosecutor to elevate the records of said case to the Office of the Regional State Prosecutor. Rabi was completely unaware of the takeover by Aurillo of the preliminary investigation of the case or the reasons therefor. Rabi learned about Aurillos action for the first time when he received the subpoena from the Assistant Regional State Prosecutor on January 27, 1995 setting the preliminary investigation of the case anew on February 2, 1995. Being a resident of Tacloban City, Rabi did not have adequate time to seek redress from the Secretary of Justice whose offices is located in Manila and request that the scheduled investigation be forestalled. Given this factual milieu, time was of the essence. Inaction was not an option; it was, in fact, sheer folly. Judicial intervention was imperative. There was no need for Rabi to still wait for Aurillo to complete his preliminary investigation of I.S. No. 95-043, find probable cause against Rabi for violation of PD 1866 and file an Information against him for said crime nor wait for the issuance by the trial court of a warrant for his arrest. If Rabi tarried, the acts sought to be assailed by him would by then have been a fait accompli to his gross prejudice, and his prayer for a writ of prohibition and for injunctive relief, an exercise in utter futility. Aurillo acted without authority and with grave abuse of discretion amounting to excess or lack of jurisdiction when he took over motu proprio the preliminary investigation of I.S. No. 95-043 and ordered a new preliminary investigation thereof; hence, his actuations were a nullity. Aurillos reliance on Section 8, paragraph (b) of PD 1275 is misplaced. Said law provides that a regional state prosecutor exercises immediate administrative supervision over all provincial and city fiscals and other prosecuting officers of provinces and cities comprised within his region and prosecutes any case arising within his region.16 The "administrative supervision" which shall govern the administration relationship between a department or its equivalent and an agency under its jurisdiction is limited to the authority of such department to generally oversee the operation of the agency under it to insure that the same is managed effectively and economically, without interfering with its day-to-day activities; and to take such action as may be necessary for the proper performance of official functions, including the rectification of violations, abuses or other forms of maladministration.17 It bears stressing that in administrative law, administrative supervision is not synonymous with control. The Court distinguished supervision from control in Jose Mondano vs. Francisco Silvosa,18 thus: "x x x In administrative law supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. x x x." "Supervision and control," on the other hand, includes the authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; todirect the performance of duty; and to approve, revise or modify acts and decision of subordinate officials or units.19 In Hon. Franklin Drilon, et al. vs. Mayor Alfredo S. Lim, et al., 20 the Court declared that an officer in control lays down the rules in the doing of an act. If they are not followed, he may, in his discretion, order the act undone or re-done by his subordinates or he may even decide to do it himself. The Court, likewise, decreed in an avuncular case that "control" means the power of an official to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter.21 In this case, when Aurillo motu proprio took over the preliminary investigation of I.S. No. 95-043 after the same had already been dismissed by the city prosecutor and ordered the assistant regional state prosecutor to conduct a preliminary investigation of the case, he exercised not only administrative supervision but control over the city prosecutor in the performance of the latters quasi-judicial functions .. By doing so, Aurillo nullified the resolution of the inquest prosecutor as approved by the city prosecutor and deprived Rabi as the aggrieved party in I.S. 95-043 of his right to file a motion for the reconsideration of the resolution of the inquest prosecutor under Section 2 of Department Circular No. 7 of the Department of Justice, as amended by Department Order No. 223,22 and if said motion were denied to appeal therefrom to the Secretary of Justice.

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Aurillo threw a monkey wrench to the appeal process and deprived the Secretary of Justice of the authority to resolve any appeal by the losing party from the resolution of the city prosecutor in I.S. No. 95-043. What is so palpable and condemnable is that, Aurillo decided to conduct a preliminary investigation of the crimes for malicious mischief, violation of the Omnibus Election Code and violation of Batas Pambansa Blg. 9 without any complaint for said cases filed directly with the Office of the Regional State Prosecutor. There is no inconsistency between Department Order No. 318 of the Secretary of Justice, PD 1275 and Section 2, Rule 112 of the 1985 Rules of Criminal Procedure, as amended; nor is Department Order No. 318 a surplusage. Section 2, Rule 112 provides that regional state prosecutors are authorized to conduct preliminary investigations of crimes committed in their territorial jurisdiction:23 "SEC. 2. Officers authorized to conduct preliminary investigation. The following may conduct a preliminary investigation: xxx (c) National and Regional State Prosecutors; and (d) Such other officers as may be authorized by law. Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper court in their respective territorial jurisdiction." As a practical matter, however, criminal complaints are filed in a proper case for preliminary investigation with the municipal trial court or with the office of the city or provincial prosecutor which has territorial jurisdiction over the offense complained of and not with the office of the regional state prosecutor. Hence, the office of the regional state prosecutor does not conduct any preliminary investigation or prosecute any criminal case in court at all. The bulk of the work of the office of the regional state prosecutor consists of administrative supervision over city or provincial or city fiscals and their assistants. The Secretary of Justice thus opted to harness the services of regional state prosecutors and help out in the investigation and prosecution of criminal cases not filed with their offices. Hence, pursuant to his power under Section 4, Chapter 1, Book IV of the 1987 Revised Administrative Code,24 and of his power of supervision and control over regional state prosecutors and provincial and city prosecutors, the Secretary of Justice issued Department Order No. 318 authorizing regional state prosecutors to investigate and/or prosecute, upon his directives, special criminal cases within the region.25 In fine, the duty of the regional state prosecutors to prosecute or investigate specific criminal cases pursuant to Department Order No. 318 is not an abridgment or curtailment of their duties or functions under Section 2, Rule 112 of the 1985 Rules of Criminal Procedure, as amended, but is an additional duty specifically delegated to them by the Secretary of Justice to enhance the administration of justice. Therefore, petitioners contention that Department Order No. 318 is inconsistent with PD 1275 and that Section 2, Rule 112 of the 1985 Rules of Criminal Procedure is merely a surplusage has no legal basis. We now resolve the third issue. Aurillo contends that the RTC erred when it nullified the Information filed by him charging private respondent with violation of PD 1866 after the requisite preliminary investigation by the office of regional state prosecutor. He argues that although the RTC had issued a Temporary Restraining Order on January 30, 1995, the same had lapsed without the court issuing any preliminary injunction. There was thus no legal bar for the Office of the Regional State Prosecutor to proceed with and terminate the preliminary investigation and thereafter to file the Information against private respondent even while the petition for prohibition was still pending before the RTC. He further asserts that the remedy of Rabi was to file with the trial court a Motion to Quash the Information on the ground that the office of the regional state prosecutor had no authority to conduct a preliminary investigation and file the same. The pendency of the special civil action for prohibition before the trial court did not interrupt the investigation in I.S. No. 95-043. 26 It goes without saying, however, that in proceeding with the preliminary investigation of I.S. No. 95-043 and terminating the same, Aurillo did so subject to the outcome of the petition for prohibition. In this case, the RTC granted the petition of Rabi, declared Aurillo bereft of authority to take over the preliminary investigation of I.S. No. 95-043 and nullified the preliminary investigation conducted by Aurillo as well as the Information thereafter filed by him. The RTC is possessed of residual power to restore the parties to their status before Aurillo proceeded with the preliminary investigation, and grant in favor of the aggrieved party such other relief as may be proper.27 Jurisprudence has it that prohibition will give complete relief not only by preventing what remains to be done but by undoing what has been done. The Court has authority to grant any appropriate relief within the issues presented by the pleadings of the parties: Generally, the relief granted in a prohibition proceeding is governed by the nature of the grievance proved and the situation at the time of judgment. Although the general rule is that a writ of prohibition issues only to restrain the commission of a future act, and not to undo an act already performed, where anything remains to be done by the court, prohibition will give complete relief, not only by preventing what remains to be done but by undoing what has been done. Under some statutes, the court must grant the appropriate relief whatever the proceeding is called if facts stating ground for relief are pleaded. Although prohibition is requested only as to a particular matter, the court has authority to grant any appropriate relief within the issues presented by the pleadings. If the application for prohibition is too broad, the court may mould the writ and limit it to as much as is proper to be granted. In the exercise of its jurisdiction to issue writs, the court has, as a necessary incident thereto, the power to make such incidental order as may be necessary to maintain its jurisdiction and to effectuate its final judgment. The court may retain jurisdiction of the cause to enable it to make an appropriate order in the future, even though the petition for a writ of prohibition is dismissed.28 Hence, the RTC did not commit any error in nullifying not only the preliminary investigation by the Office of the Regional State Prosecutor in I.S. No. 95043 for want of authority but also the Information approved by Aurillo and filed with the Regional Trial Court. On the last issue, the RTC awarded moral damages in the amount of P50,000.00, exemplary damages in the amount of P50,000.00 and P10,000.00 by way of attorneys fees to Rabi on its finding that Aurillo wantonly disregarded the authority of the court by filing the information against Rabi despite the pendency of the latters petition for prohibition with said court and even without any authority from the Secretary of Justice. Aurillo asserts that the

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awards are bereft of legal basis because the RTC did not issue a writ of preliminary injunction enjoining him from proceeding with the preliminary investigation of I.S. No. 95-043 and filing the Information against Rabi. He insists that the pendency of the petition for prohibition was no impediment for him to proceed with the preliminary investigation. He claims that he proceeded in good faith, without malice. Hence, the RTC is not allowed under Rule 65 of the Rules to award moral and exemplary damages to Rabi. We agree with Aurillo. The awards by the RTC of damages and attorneys fees are barren of legal basis. The fact is that the RTC did not issue any writ of preliminary injunction enjoining Aurillo from proceeding with the preliminary investigation of I.S. No. 95-043. Although the RTC promised to resolve private respondents plea for a writ of preliminary injunction on or before February 20, 1995, it did not. Aurillos act of proceeding with the preliminary investigation of I.S. No. 95043 and of filing the Information were not in disregard of the authority of the RTC, but were done in the belief that, absent any temporary restraining order or writ of preliminary injunction, he was authorized to do so. For Rabi to be entitled as a matter or law to moral damages, he must adduce evidence that he suffered injury and establish that such injury sprung from any of the instances listed in Articles 2219 and 2220 of the New Civil Code. 29 He is burdened to show proof of physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation and similar injury.30 In this case, Rabi failed to discharge his burden. The records show that he even failed to testify before the RTC to prove his claim for moral damages. Hence, the RTC erred in awarding moral damages to Rabi. Neither is Rabi entitled to exemplary damages. In National Steel Corporation vs. RTC, et al.,31 the Court held that: xxx (1) they may be imposed by way of example in addition to compensatory damages, and only after the claimants right to them has been established; (2) that they cannot be recovered as a matter of right, their determination depending upon the amount of compensatory damages that may be awarded to the claimant; (3) the act must be accompanied by bad faith or done in a wanton, fraudulent, oppressive or malevolent manner. Rabi did not claim in his petition with the RTC any compensatory damages. Hence, he is not entitled to exemplary damages. Finally, since Rabi is not entitled to moral and exemplary damages, he is not entitled to attorneys fees.32 IN THE LIGHT OF ALL THE FOREGOING, the decision of the Regional Trial Court granting the petition for prohibition of Rabi is AFFIRMED with MODIFICATION. The awards for moral and exemplary damages and attorneys fees are DELETED. No costs. SO ORDERED. Bellosillo, (Chairman), Mendoza, Quisumbing, and Austria-Martinez, JJ., concur.

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G.R. No. 122728 February 13, 1997

CASIANO A. ANGCHANGCO, JR., petitioner, vs. THE HONORABLE OMBUDSMAN, ZALDY TAMAYO, GILDA NAVARRA, ODELIA LEGASPI, SALVADOR TAMAYO, GASPAR ABORQUE, ROEL ABAS, REMEDIOS OLITA, ET AL., TEODORO TORREON, ET AL., JIMMY MARTIN, MENRADO ALLAWAN, MARGARITO ESCORIAL, NORBERTO OCAT and ALEJANDRO ERNA,respondents.

MELO, J.:

Before us is a petition for mandamus seeking to: a) compel the Ombudsman to dismiss Ombudsman Cases No. MIN-3-90-0671, MIN-90-0132, MIN-900133, MIN-90-0138, MIN-90-0188, MIN-90-0189, MIN-90-0190, MIN- 90-0191, and MIN-90-0192; and b) direct the Ombudsman to issue a clearance in favor of petitioner Casiano A. Angchangco. The facts are as follows: Prior to his retirement, petitioner served as a deputy sheriff and later as Sheriff IV in the Regional Trial Court of Agusan del Norte and Butuan City. On August 24, 1989, the Department of Labor and Employment (Region X) rendered a decision ordering the Nasipit Integrated Arrastre and Stevedoring Services Inc. (NIASSI) to pay its workers the sum of P1,281,065.505. The decision having attained finality, a writ of execution was issued directing the Provincial Sheriff of Agusan del Norte or his deputies to satisfy the same. Petitioner, as the assigned sheriff and pursuant to the writ of execution issued, caused the satisfaction of the decision by garnishing NIASSI's daily collections from its various clients. In an attempt to enjoin the further enforcement of the writ of execution, Atty. Tranquilino O. Calo, Jr., President of NIASSI, filed a complaint for prohibition and damages against petitioner. The regional trial court initially issued a temporary restraining order but later dismissed the case for lack of jurisdiction. In addition to the civil case, Atty. Calo likewise fled before the Office of the Ombudsman a complaint against petitioner for graft, estafa/malversation and misconduct relative to the enforcement of the writ of execution. Acting on the complaint, the Ombudsman, in a Memorandum dated July 31, 1992, recommended its dismissal for lack of merit. Meanwhile, from June 25 to 28, 1990, several workers of NIASSI filed letters-complaints with the Office of the Ombudsman-Mindanao alleging, among others things, that petitioner illegally deducted an amount equivalent to 25% from their differential pay. The Office of the Ombudsman-Mindanao endorsed to the Court the administrative aspect of the complaints which was docketed hereat as A.M. No. 93-10-385-OMB. The Court in an En BancResolution dated November 25, 1993 dismissed the case for lack of interest on the part of complainants to pursue their case. Although the administrative aspect of the complaints had already been dismissed, the criminal complaints remained pending and unresolved, prompting petitioner to file several omnibus motions for early resolution. When petitioner retired in September 1994, the criminal complaints still remained unresolved, as a consequence of which petitioner's request for clearance in order that he may qualify to receive his retirement benefits was denied. With the criminal complaints remaining unresolved for more than 6 years, petitioner filed a motion to dismiss, vs. Sandiganbayan (G.R.No. 72335-39, March 21, 1988). Sad to say, even this motion to dismiss, however, has not been acted upon. Hence, the instant petition. Acting on the petition, the Court issued a resolution dated December 20, 1995 requiring respondents to comment thereon. In compliance therewith, the Office of the Solicitor General filed a Manifestation and Motion (in lieu of Comment.), which is its way of saying it agreed with the views of petitioner. On July 22, 1996, we issued another resolution requiring the Ombudsman to file his own comment on the petition if he so desires, otherwise, the petition will be deemed submitted for resolution without such comment. After several extensions, respondent Ombudsman, through the Office of the Special Prosecutor, filed a comment dated October 7, 1996. The Court finds the present petition to be impressed with merit. Mandamus is a writ commanding a tribunal, corporation, board, or person to do the act required to be done when it or he unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, there being no other plain, speedy, and adequate remedy in the ordinary course of law (Section 3 of Rule 65 of the Rules of Court). After a careful review of the facts and circumstances of the present case, the Court finds the inordinate delay of more than six years by the Ombudsman in resolving the criminal complaints against petitioner to be violative of his constitutionally guaranteed right to due process and to a speedy disposition of the cases against him, thus warranting the dismissal of said criminal cases pursuant to the pronouncement of the Court in Tatad vs.Sandiganbayan (159 SCRA 70 [1988]), wherein the Court, speaking through Justice Yap, said: We find the long delay in the termination of the preliminary investigation by the Tanodbayan in the instant case to be violative of the constitutional right of the accused to due process. Substantial adherence to the requirements of the law governing the conduct of preliminary investigation, including substantial compliance with the time limitation prescribed by the law for the resolution of the case invoking Tatad

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by the prosecutor, is part of the procedural due process constitutionally guaranteed by the fundamental law. Not only under the board umbrella of the due process clause, but under the constitutional guarantee of "speedy disposition" of cases as embodied in Section 16 of the Bill of Right (both in the 1973 and the 1987 Constitutions), the inordinate delay is violative of the petitioner's constitutional rights. A delay of close to three (3) years can not be deemed reasonable or justifiable in the light of the circumstance obtaining in the case at bar. We are not impressed by the attempt of the Sandiganbayan to sanitize the long delay by indulging in the speculative assumption that "the delay may be due to a painstaking and gruelling scrutiny by the Tanodbayan as to whether the evidence presented during the preliminary investigation merited prosecution of a former high-ranking government official." In the first place, such a statement suggests a double standard of treatment, which must be emphatically rejected. Secondly, three out of the five charges against the petitioner were for his alleged failure to file his sworn statement of assets and liabilities required by Republic Act No. 3019, which certainly did not involve complicated legal and factual issues necessitating such "painstaking and gruelling scrutiny" as would justify a delay of almost three years in terminating the preliminary investigation. The other two charges relating to alleged bribery and alleged giving of unwarranted benefits to a relative, while presenting more substantial legal and factual issues, certainly do not warrant or justify the period of three years, which it took the Tanodbayan to resolve the case. It has been suggested that the long delay in terminating the preliminary investigation should not be deemed fatal, for even the complete absence of a preliminary investigation does not warrant dismissal of the information. True--but the absence of a preliminary investigation can not be corrected, for until now, man has not yet invented a device for setting back time. Verily, the Office of the Ombudsman in the instant case has failed to discharge its duty mandated by the Constitution "to promptly act on complaints filed in any form or manner against public officials and employees of the government, or any subdivision, agency or instrumentality thereof." Mandamus is employed to compel the performance, when refused of a ministerial duty, this being its chief use and not a discretionary duty. It is nonetheless likewise available to compel action, when refused, in matters involving judgment and discretion, but not to direct the exercise of judgment or discretion in a particular way or the retraction or reversal of an action already taken in the exercise of either (Rules of Court in the Philippines, Volume III by Martin, 4th Edition, page 233). It is correct, as averred in the comment that in the performance of an official duty or act involving discretion, the corresponding official can only be directed by mandamus to act, but not to act one way or the other. However, this rule admits of exceptions such as in cases where there is gross abuse of discretion, manifest injustice, or palpable excess of authority (Kant Kwong vs. PCGG, 156 SCRA 222, 232 [1987]). Here, the Office of the Ombudsman, due to its failure to resolve the criminal charges against petitioner for more than six years, has transgressed on the constitutional right of petitioner to due process and to a speedy disposition of the cases against him, as well as the Ombudsman's own constitutional duty to act promptly on complaints filed before it. For all these past 6 years, petitioner has remained under a cloud, and since his retirement in September 1994, he has been deprived of the fruits of his retirement after serving the government for over 42 years all because of the inaction of respondent Ombudsman. If we wait any longer, it may be too late for petitioner to receive his retirement benefits, not to speak of clearing his name. This is a case of plain injustice which calls for the issuance of the writ prayed for. WHEREFORE, the Court RESOLVED to give DUE COURSE to the petition and to GRANT the same. Ombudsman Cases No. MIN-3-90-0671, MIN-900132, MIN-90-0133, MIN-90-0138, MIN-90-0188, MIN-90-0189, MIN-90 0190, MIN-90-0191, and MIN-90-0192 are ordered DISMISSED. The Office of the Ombudsman is further directed to issue the corresponding clearance in favor of petitioner. SO ORDERED. Narvasa, C.J., Davide, Jr., Francisco and Panganiban, JJ., concur.

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EN BANC

G.R. No. L-3081

October 14, 1949

ANTONIO LACSON, petitioner, vs. HONORIO ROMERO, ET AL., respondents. Cruz, Puno and Lacson for petitioner.

The respondent Provincial Fiscal in his own behalf. Office of the Solicitor General Felix Bautista Angelo and Assistant Solicitor Inocencio Rosal for respondent Judge. Avena, Villaflores and Lopez for other respondents.

MONTEMAYOR, J.:

Involved in these quo warranto proceedings filed directly with this Court is the Office of Provincial Fiscal of Negros Oriental, and the right to said position as between the petitioner Antonio Lacson and the respondentHonorio Romero. The facts necessary for the decision in this case may be stated as follows: Petitioner Lacson was on July 25, 1946, appointed by the President of the Philippines, provincial fiscal of Negros Oriental. The appointment was confirmed by the Commission on Appointment on August 6, 1946. He took his oath of office on August 10, 1946, and thereafter performed the duties of that office. Upon recommendation of the Secretary of Justice, on May 17, 1949, the President nominated petitioner Lacson to the post of provincial fiscal of Tarlac. On the same date, the President nominated for the position of provincial fiscal of Negros Oriental respondent Romero. Both nominations were simultaneously confirmed by the Commission on Appointments on May 19, 1949. Lacson neither accepted the appointment nor assumed the office of fiscal of Tarlac. But respondent Romero took his oath of office (the post of fiscal of Negros Oriental) in Manila on June 16, 1949, notified the Solicitor General of the fact, and thereafter proceeded to his station. Upon arrival at Dumaguete City, capital of Negros Oriental, he notified Lacson of his intention to take over the office the following day, but Lacson objected. On June 24, 1949, Romero appeared in criminal case No. 4433 before Judge Gregorio S. Narvasa. In said appearance, petitioner Lacson filed his objection and asked that Romero's appearance be stricken from the record. After Romero had exhibited his credentials as required by the court, Judge Narvasa on the same day denied the petition of Lacson and recognized respondent Romero as the provincial fiscal of Negros Oriental. On June 27, 1949, Romero appeared in Special Proceedings No. 630 before Judge Felicisimo Ocampo. Lacson again objected to said appearance but the court overruled his objection. This will explain why Judges Narvasa and Ocampo were made respondents in these quo warranto proceedings. When petitioner Lacson requested payment of his salary for the period from June 16 to June 23, 1949 as provincial fiscal of Negros Oriental, Angel Paguia, Provincial Auditor and L. J. Alfabeto, Provincial Treasurer turned down his claim and instead paid respondent Romero the salary for the position of provincial fiscal from June 16, 1949, and continued paying it to him periodically up to the present time. Their action was based on a reply given to their query, by the Secretary of Justice to the effect that Romero, was the provincial fiscal of Negros Oriental. This is the reason why the Auditor and the Treasurer of Negros Oriental were likewise made respondents in these proceedings. The purpose of the present action is to establish the right of the petitioner to the post of provincial fiscal of Negros Oriental and to oust the respondent Romero therefrom. The petition and the memorandum in support thereof among other things contain the following prayer: (1) Recognizing the right of petitioner Antonio Lacson to hold and occupy the position of provincial fiscal of Negros Oriental; (2) Declaring the respondent Honorio Romero guilty of usurpation, unlawful holding and exercise of the functions and duties of provincial fiscal of Negros Oriental; ordering the exclusion of said respondent from said office; and ordering him to surrender to herein petitioner all records and papers appertaining to said office that may have come into his possession; (3) Ordering respondents provincial treasurer L. J. Alfabeto and provincial auditor Angel Paguia, or their successors in office, to pay herein petitioner his salary commencing June 16, 1949, up to the present time and until herein petitioner shall have legally ceased to be the incumbent of said office; and (4) Ordering respondent Honoro Romero pay the costs. Incidentally, and to serve as background in the consideration of this case, it may be stated that when the nominations of Lacson and Romero to the posts of Provincial Fiscal of Tarlac and Negros Oriental, respectively, were made in May, 1949, Negros Oriental was a second class province with a salary of P5,100 per annum for the post of provincial fiscal, while Tarlac was first class simple with a higher salary of P5,700 per annum for its provincial fiscal. There is therefore reason to believe that the nomination of Lacson to Tarlac or rather his attempted transfer from Negros Oriental to Tarlac was intended and considered as a promotion. At least, there is nothing in the record to show that he was being deliberately eased out of or removed from his post in Negros Oriental. However, the appointments and confirmations, the President raised the province of Negros Oriental to the category of First Class A province with retroactive effect as of January 1, 1949. It is alleged by respondent Romero that after the filing of the present petition, Tarlac was likewise raised to the category of First Class B province on July 15, 1949 so that thereafter the salary for provincial fiscal in both province is the same, namely, P6,000 each. This might be one of the reasons why petitioner to the Province of Tarlac, preferring accept his nomination to the Province of Tarlac, preferring to remain at his old post of provincial fiscal of Negros Oriental. The determination as to who is entitled to the position of provincial fiscal of Negros Oriental, depends upon the correct answers to several queries such as: (1) Did the Commission on Appointments alone, without his acceptance nomination of Lacson to Tarlac and its confirmation by the thereof

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create a vacancy in the post of provincial fiscal of Negros Oriental so that Romero could be lawfully appointed to said vacancy? (2) Does the nomination of Lacson to Tarlac and its confirmation by the Commission on Appointments serve as and is equivalent to a removal of Lacson as fiscal of Negros Oriental? If in the affirmative, was that removal and lawful? (3) Could the President who appointed Lacson as provincial fiscal of Negros Oriental remove him at will and without cause, or did the post of provincial fiscal in general have attached to it a tenure of office during which the incumbent may not be removed except for cause? The appointment to a government post like that of provincial fiscal to be complete involves several steps. First, comes the nomination by the President. Then to make that nomination valid and permanent, the Commission on Appointments of the Legislature has to confirm said nomination. The last step is the acceptance thereof by the appointee by his assumption of office. The first two steps, nomination and confirmation, constitute a mere offer of a post. They are acts of the Executive and Legislative departments of the Government. But the last necessary step to make the appointment complete and effective rests solely with the appointee himself. He may or he may not accept the appointment or nomination. As held in the case of Borromeo vs. Mariano, 41 Phil., 327, "there is no Power in this country which can compel a man to accept an office." Consequently, since Lacson has declined to accept his appointment as provincial fiscal of Tarlac and no one can compel him to do so, then he continues as provincial fiscal of Negros Oriental and no vacancy in said office was created, unless Lacson had been lawfully removed as Such fiscal of Negros Oriental. As to the second question, it is obvious that the intended transfer of Lacson to Tarlac on the basis of his nomination thereto, if carried out, would be equivalent to a removal from his office in Negros Oriental. To appoint and transfer him from one province to another would mean his removal or separation from the first province. The reason is that a fiscal is appointed for each province (see. 1673, Rev. Adm. Code), and Lacson could not well and legally hold and occupy the two posts of fiscal of Tarlac and Negros Oriental simultaneously. To be fiscal for Tarlac must mean his removal from Negros Oriental. In the case of Nicolas vs. Alberto, 51 Phil., 370, this Court held that "a transfer of a Justice of the Peace outside of the municipality of which he is appointed is in legal effect a combined removal and appointment." (Decision in this case was reversed by the U. S. Supreme Court [279 U. S., 1411, but on other grounds, leaving the doctrine on transfer and removal undisturbed.) When the transfer is consented to and accepted by the transferees, then there would be no question; but where as in the present case, the transfer is involuntary and objected to, then it is necessary to decide whether the removal is lawful. What is the nature of the office of provincial fiscal? Is it included in the Civil Service? The answer is, undoubtedly, in the affirmative. Article XII, section 1 of our Constitution provides that "a Civil Service embracing all branches and subdivisions of the Government shall be provided by law." Section 668 of the Administrative Code as amended by Com. Act No. 177, sec. 6, provides that "the Philippine Civil Service shall embrace all branches and subdivisions of the Government;" and section 670 of the same Code provides that "person in the Philippine Civil Service pertain either to the classified or unclassified service." Section 671 of the same code as amended by Commonwealth Act No. 177, section 8 in part provides as follows: Sec. 671. Person embraced in unclassified. The following officers and employees constitute the unclassified service:.lawphi1.nt (a) A secretary, a sergeant-at-arm, and such other officers as may be required and chosen by the National Assembly in accordance with the Constitution. (b) Officers, other than the provincial treasurers and Assistant Directors of Bureaus or Offices, appointed by the President of the Philippines, with the consent of the Commission on Appointments of the National Assembly, and all other officers of the Government whose appointments are by law vested in the President of the Philippines alone. (c) Elective officers. xxx xxx xxx

From the foregoing, We find that the post of provincial fiscal in the Philippines is included in subsection (b) above-quoted particularly the underlined portion thereof. The law regarding appointment to the post of provincial fiscal is contained in section 66 of the Administrative Code which provides that "the Governor-General (now the President) shall appoint among other officials, Secretaries to Departments, Provincial Treasurers, Provincial Fiscals, Register of Deeds, etc." And, Article VII, section 10(3) of the Constitution provides that the President shall nominate and with the consent of the Commission on Appointments shall appoint among other officials, "all other officers of the Government whose appointments are not herein otherwise provided for" which clearly includes the office of provincial fiscal. It is therefore clear that a provincial fiscal who is nominated and appointed by the President with the consent of the Commission on Appointments, as was petitioner Lacson, is, under section 671 (b) above-quoted, included in the unclassified service of the Civil Service. The next question arises as to whether the President even with the concurrence or consent of the Commission on Appointments may remove a provincial fiscal without cause. The Constitution itself denies said right. Article XII, section 4 of said instrument provides that "no officer or employee in the civil service shall be removed or suspended except for cause as provided by law." This constitutional provision is reproduced word for word in the in the paragraph of sec. 694 of the Rev. Adm. Code, as amended by Commonwealth Act No. 177, section 22. In order to better appreciate the meaning of this constitutional provision as well as the purpose behind it, it is necessary to delve, though ever so lightly into the framing of this basic instrument. The Committee on Civil Service of the Constitutional Convention which drafted the Constitution in its report and in advocating the merit system in connection with a civil service system among other things stated the following: The adoption of the "merit system" in government service has secured efficiency and social justice. It eliminates the political factor in the selection of civil employees which is the first essential to an efficient personnel system. It insures equality of opportunity to all deserving applicants desirous of a career in the public service. It advocates a new concept of the public office as a career open to all and not the exclusive patrimony of any party or faction to be doled out as a reward for party service. (Arnego's Framing of the Constitution, Vol. II, p. 886.)

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The "merit system" was adopted only after the nations of the world took cognizance of its merits. Political patronage in the government service was sanctioned in 1789 by the constitutional right of the President of the United States to act alone in the matter of removals. From the time of Andrew Jackson, the principle of the "To the victor belong the spoils" dominated the Federal Government. The system undermined moral values and destroyed administrative efficiency. . . . . (Ibid, p. 886.) Since the establishment of the American Regime in the Philippines we have enjoyed the benefits of the "merit system." The Schurman Commission advocated in its report that "the greatest care should be taken in the selection of officials for administration. They should be men of the highest character and fitness, and partisan politics should be entirely separated from the government." The Governor-General after William Taft adopted the policy of appointing Filipinos in the government regardless of their party affiliation. As the result of these "the personnel of the Civil Service had gradually come to be one of which the people of the United States could feel justly proud. Necessity for Constitutional Provisions. The inclusion in the constitution of provisions regarding the "merit system" is a necessity of modern times. As its establishment secures good government, the citizens have a right to expect its guarantee as a permanent institution. . . . . (Ibid. p. 887.) Separations, Suspensions, Demotion, and Transfers. The "merit system" will be ineffective if no safeguards are placed around the separation and removal of public employees. The Committee's report requires that removals shall be made only for "causes and in the manner provided by law." This means that there should be bona fide reasons and action may be taken only after the employee shall have been given a fair hearing. This affords to public employees reasonable security of tenure. (Ibid. p. 890.) It is contended on of the respondent that the power of removal is inherent in the power to appoint and that consequently, the President had the right to remove the petitioner as provincial fiscal of Negros Oriental and transfer him to Tarlac. Ordinarily, where there is no constitutional limitation the contention of the respondent would be tenable; but where as in the Philippines and as already stated the Constitution forbids the removal of a civil service official or employee like the petitioner except for cause as provided by law, said right of the Chief Executive is qualified and limited. That constitutional prohibition is a limitation to the inherent power of the Executive to remove those civil service officials whom he appoints. This is the reason why we find the American cases cited in support of respondent's theory to be inapplicable. The prohibition against removal except for cause contained in our Constitution has no counterpart in the Federal Constitution of the United States. Again, it is contended that the provincial fiscal is not appointed for a fixed term and that there is no tenure of office attached to the post. This contention is without merit. As we have already stated, a provincial fiscal as a civil service official may not be removed from office even by the President who appointed him, and even with the consent of the Commission on Appointments, except for cause. Considering this security and protection accorded a provincial fiscal from arbitrary and illegal removal from office, and considering the provisions of section 1673 of the Administrative Code which among other things provides, that "after December 31, 1932 any city fiscal or assistant city fiscal of Manila, provincial fiscal or deputy provincial fiscal over 65 years of age shall vacate his office, the logical inference is that a provincial fiscal duly appointed, until he reaches the age of 65 has the right to continue in office unless sooner removed for cause. In other words, he enjoys tenure of office, which is duly protected by statute and by the Constitution. The last part of the report of the Committee on Civil Service of the Constitutional Convention which we have reproduced mentions this tenure of office in its last sentence, "This affords public employees reasonable security or tenure." Speaking of tenure of office of members of the civil service in the Philippines, Professor Sinco in his book on Philippine Political Law has the following to say: Security of Tenure. Nothing can be more demoralizing to a group of civil servants than the fear that they might be removed from their posts any time at the pleasure of their superiors. It goes without saying that a demoralized force is an inefficient form Security of tenure is necessary in order to obtain efficiency in the civil service. For this purpose the Constitution provides that "no officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law." (Philippine Political Law by Sinco, p. 350.) In our discussion of the functions of the President, it was there shown that the President's power of removal which is implied from his power of appointment, is very comprehensive and almost unlimited when it affects officers holding purely executive positions. This class of officers, under the rule laid down in the Meyers case, may be removed by the President at practically any time and for any cause. No statutory check, such as a requirement that his order of removal should be subject to the previous consent of the senate or the Commission on Appointments before it could be effective, may be validly placed upon his right to exercise this power. But the provision of the Constitution of the Philippines, which has no counterpart in the Constitution of the United States, makes the tenure of officers and employees in the Civil Service secure even against the President's power of removal and even if the officers should hold purely executive offices. The result is that the scope of the rule established in the Meyers case is considerably modified and reduced when applied in this jurisdiction. It may only apply in case of executive officers appointed by the President and not belonging to the Civil Service as established by the Constitution. (Ibid. pp. 350-351.). It is also contended by the respondent that neither the Constitution nor the laws passed by the Legislature mention or enumerate the cause or causes for which a civil service official may be removed from office. We find this claim untenable. Section 686 of the Revised Administrative Code, as amended by Commonwealth Act No. 177, section 18 provides that falsification by a civil service official of his daily time record shall render him liable to summary removal and subject him to prosecution as provided by law. A like provision for removal and prosecution is found in section 687 of the same Code, as amended by Commonwealth Act 177, section 19 which deals with political activity and contribution to political fund by civil service employees. Then we have Rule XIII, section 6 of the Civil Service Rules providing thus: 6. Discourtesy to private individuals or to Government officers or employees, drunkenness, gambling, dishonesty, repeated or flagrant violation or neglect of duty, notoriously disgraceful or immoral conduct, physical incapacity due to immoral or vicious habits, incompetency, inefficiency, borrowing money by superior officers from subordinates or lending money by subordinate to superior officers, lending money at exhorbitant rates of interest, willful failure to pay just debts, contracting loans of money or other property from merchants or other persons with whom the bureau of the borrower is in business relations, pecuniary embarrassment arising from reprehensible conduct, the pursuits of private business, vocation, or profession without permission in writing from the chief of the bureau or office in which employed and of the Governor-

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General (now the President)or proper head of Department, disreputable or dishonest conduct committed prior to entering the service, insubordination, pernicious political activity, offensive political partisanship or conduct prejudicial to the best interest of the service, or the willful violation by any person in the Philippine civil service of any of the provisions of the Revised Civil Service Act or rules, may be considered reasons demanding proceedings to remove for cause, to reduce in class or grade, or to inflict other punishment as provided by law in the discretion of the Governor-General (now the President) or proper head of Department. No chief of a bureau or office shall knowingly continue in the public service any subordinate officer or employee who is inefficient or who is guilty of any of the above-named derelictions, without submitting the facts through the Director to the Governor-General (now the President) or proper head of Department. The law and civil service rules above referred to clearly provide the causes or some of the causes for removal of civil service officials; and they answer the contention of the respondent on this point. Section 64 of the Revised Administrative Code, providing for the particular powers and duties of the Governor-General, now the President of the Republic, in part reads as follows: xxx xxx xxx

(b) To remove officials from office conformably to law and to declare vacant the offices held by such removed officials. For disloyalty to the United States (now the Philippines), the Governor-General (now the President) may at any time remove a person from any position of trust or authority under the Government of the Philippine Islands. (c) To order, when in his opinion the good of the public service so requires, an investigation or any action or the conduct of any person in the Government service, and in connection therewith to designate the official, committee, or person by whom such investigation shall be conducted. xxx xxx xxx

Section 694 of the Administrative Code as amended by Commonwealth Act No. 177, section 22, reads as follows: Sec. 694. Removal or suspension. No officer or employee in the civil service shall be removed or suspended except for cause as provided by law. The President of the Philippines may suspend any chief or assistant chief of a bureau or office, and in the absence of special provision, any other officer appointed by him, pending an investigation of charges against such officer or pending an investigation of his bureau or office. With the approval of the head of department, the chief of a bureau or office may likewise suspend any subordinate or employee in his bureau or under his authority pending an investigation, if the charge against such subordinate or employee involves dishonesty, oppression, or grave misconduct or neglect in the performance of duty. From the sections above-quoted, the inference is inevitable that before a civil service official or employee can be removed, there must first be an investigation at which he must be given a fair hearing and an opportunity to defend himself. In the case of petitioner Lacson, the record fails to show, neither is there any claim that he has been charged with any violation of law or civil service regulation, much leas investigated and thereafter found guilty so as to authorize or warrant removal from office. In view of the foregoing, we are constrained to find and to hold that the transfer of Lacson to Tarlac by his nomination to the post of provincial fiscal of that province was equivalent to and meant his removal as provincial fiscal of Negros Oriental; that said removal was illegal and unlawful for lack of valid cause as provided by law and the Constitution; that the confirmation of the nomination by the Commission on Appointments did not and could not validate the removal, since the Constitution is equally binding on the Legislature; that a provincial fiscal is a civil service official or employee whose tenure of office is protected by the Constitution; and that Antonio Lacson could not be compelled to accept his appointment as provincial fiscal of Tarlac; that having declined said appointment, he continued as provincial fiscal of Negros Oriental; that inasmuch as he neither left, abandoned nor resigned from his post as provincial fiscal of Negros Oriental, there was no vacancy in said post to which the respondent could be legally appointed; and that consequently, the appointment of the respondent was invalid. In this connection we may point out that the Constitution having clearly limited and qualified the Presidential power of removal in order to protect civil service officials and employees, secure to them a reasonable tenure of office and thus give the country the benefit of an efficient civil service based on the merit system, this Court could do no less than give effect to the plain intent and spirit of the basic law, specially when it is supplemented and given due course by statutes, rules and regulations. To hold that civil service officials hold their office at the will of the appointing power subject to removal or forced transfer at any time, would demoralize and undermine and eventually destroy the whole Civil Service System and structure. The country would then go back to the days of the old Jacksonian Spoils System under which a victorious Chief Executive, after the elections could if so minded, sweep out of office, civil service employees differing in political color or affiliation from him, and sweep in his political followers and adherents, especially those who have given him help, political or otherwise. A Chief Executive running for re-election may even do this before election time not only to embarrass and eliminate his political enemies from office but also to put his followers in power so that with their official influence they could the better help him and his party in the elections. As may be gathered from the report of the Committee of the Constitutional Convention which we have reproduced at the beginning of this opinion, the framers of our Constitution, at least the Civil Service Committee thereof, condemned said spoils system and purposely and deliberately inserted the constitutional prohibition against removal except for cause, which now forms the basis of this decision. There are hundreds, yea, thousands of young, ambitious people who enter the Civil Service not temporarily or as a makeshift, but to make a career out of it. They give the best years of their lives to the service in the hope and expectation that with faithful service, loyalty and some talent, they may eventually attain the upper reaches and levels of official hierarchy.

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FIRST DIVISION

G.R. No. 69260 December 22, 1989

MUNICIPALITY OF BIAN, petitioner, vs. HON. JOSE MAR GARCIA, Judge of the Regional Trial Court at Bian, Laguna (BRANCH XXXIV, Region IV), and ERLINDA FRANCISCO, respondents.

The Provincial Fiscal for petitioner.

Roman M. Alonte for private respondent.

NARVASA, J.:

Three (3) questions are resolved in the action of certiorari at bar. The first is whether the special civil action of eminent domain under Rule 67 of the Rules of Court is a case "wherein multiple appeals are allowed, 1 as regards which 'the period of appeal shall be thirty [30] days, 2 instead of fifteen (15) days. 3 The second is whether or not the Trial Court may treat the motion to dismiss" filed by one of the defendants in the action of eminent domain as a "motion to dismiss" under Rule 16 of the Rules of Court, reverse the sequence of trial in order and hear and determine said motion to dismiss, and thereafter dismiss the expropriation suit as against the movant. And the third is whether or not a "locational clearance issued by the Human Settlements Regulatory Commission relative to use of land is a bar to an expropriation suit involving that land. The expropriation suit involved in this certiorari proceeding was commenced by complaint of the Municipality of Bian, Laguna 4 filed in the Regional Trial Court of Laguna and City of San Pablo, presided over by respondent Judge Jose Mar Garcia. The complaint named as defendants the owners of eleven (11) adjacent parcels of land in Bian with an aggregate area of about eleven and a half (11-1/2) hectares. The land sought to be expropriated was intended for use as the new site of a modern public market and the acquisition was authorized by a resolution of the Sangguniang Bayan of Bian approved on April 11, 1983. One of the defendants was Erlinda Francisco. She filed a "Motion to Dismiss" dated August 26, 1983, on the following grounds; (a) the allegations of the complaint are vague and conjectural; (b) the complaint violates the constitutional limitations of law and jurisprudence on eminent domain; (c) it is oppressive; (d) it is barred by prior decision and disposition on the subject matter; and (e) it states no cause of action. 5 Now, her motion to dismiss" was filed pursuant to Section 3, Rule 67 of the Rules of Court: Sec. 3. Defenses and objections within the time specified in the summons, each defendant, in lieu of an answer, shall present in a single motion to dismiss or for other apppropriate relief, all of his objections and defenses to the right of the plaintiff to take his property for the use or purpose specified in the complaint. All such objections and defenses not so presented are waived. A copy of the motion shall be served on the plaintiffs attorney of record and filed with the court with the proof of service. Her "motion to dismiss" was thus actually a pleading, taking the place of an answer in an ordinary civil action; 6 it was not an ordinary motion governed by Rule 15, or a "motion to dismiss" within the contemplation of Rule 16 of the Rules of Court. On October 23, 1983, respondent Judge issued a writ of possession in favor of the plaintiff Municipality. On February 3, 1984, Erlinda Francisco filed a "Motion for Separate Trial," invoking Section 2, Rule 31. 7 She alleged that there had already been no little delay in bringing all the defendants within the court's jurisdiction, and some of the defendants seemed "nonchalant or without special interest in the case" if not mere "free riders;" and "while the cause of action and defenses are basically the same;" she had, among other defenses, "a constitutional defense of vested right via a pre-existing approved Locational Clearance from the H.S.R.C." 8 Until this clearance was revoked, Francisco contended, or the Municipality had submitted and obtained approval of a "rezoning of the lots in question," it was premature for it to "file a case for expropriation. 9 The Court granted the motion. By Order dated March 2, 1984, it directed that a separate trial be held for defendant Erlinda Francisco regarding her special defenses mentioned in her .. Motion for Separate Trial and in her Motion to Dismiss, distinct from and separate from the defenses commonly raised by all the defendants in their respective motions to dismiss." At the separate trial, the Fiscal, in representation of the Municipality called the Trial Court's attention to the irregularity of allowing Francisco to present her evidence ahead of the plaintiff, "putting the cart before the horse, as it were." He argued that the motion to dismiss was in truth an answer, citing Rural Progress Administration v. Judge de Guzman, and its filing did "not mean that the order of presentation of evidence will be reversed," but the usual procedure should be followed; and the evidence adduced should be deemed "evidence only for the motion for reconsideration of the writ of possession." 10 Nevertheless, at the hearing of March 5, and March 26, 1984, the Court directed Francisco to commence the presentation of evidence. Francisco presented the testimony of Atty. Josue L. Jorvina, Jr. and certain exhibits the Land Use Map of the Municipality of Bian, the Locational Clearance and Development Permit issued by the H.S.R.C. in favor of "Erlinda Francisco c/o Ferlins Realty & Development Corporation, and Executive Order No. 648 and Letter of Instruction No. 729, etc. Thereafter, the respondent Judge issued an Order dated July 24, 1984 dismissing the complaint "as against defendant ERLINDA FRANCISCO," and amending the Writ of Possession dated October 18, 1983 so as to "exclude therefrom and from its force and effects said defendant .. and her property ..." His Honor found that1) a Locational Clearance had been issued on May 4,1983 by the Human Settlements Regulatory Commission to the "Ferlin's Realty .. owned by defendant Erlinda Francisco to convert .. (her) lot to a commercial complex;"

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2) according to the testimony of Atty. Jorvina of the H.S.R.C., a grantee of a locational clearance acquires a vested right over the subject property in the sense that .. said property may not be subject of an application for locational clearance by another applicant while said locational clearance is subsisting;" 3) such a clearance should be "considered as a decision and disposition of private property co-equal with or in parity with a disposition of private property through eminent domain; 4) the clearance was therefore "a legal bar against the right of plaintiff Municipality .. to expropriate the said property." The Municipality filed on August 17, 1984 a Motion for Reconsideration. Therein it (a) reiterated its contention respecting the irregularity of the reversal of the order of trial, supra. 11 (b) decried the act of the Court in considering the case submitted for decision after the presentation of evidence by Francisco without setting the case for further hearing for the reception of the plaintiffs own proofs, (c) pointed out that as admitted by Atty. Jorvina, the locational clearance did not "mean that other persons are already prevented from filing locational clearance for the same project, and so could not be considered a bar to expropriation, (d) argued that the locational clearance issued on May 4, 1983, became a "worthless sheet of paper" one year later, on May 4, 1984 in accordance with the explicit condition in the clearance that it "shall be considered automatically revoked if not used within a period of one (1) year from date of issue," the required municipal permits to put up the commercial complex never having been obtained by Francisco; and (e) alleged that all legal requirements for the expropriation of the property had been duly complied with by the Municipality. 12 The Municipality set its motion for reconsideration for hearing on August 28, 1984 after furnishing Francisco's counsel with copy thereof The Court however re-scheduled the hearing more than two (2) months later, on November 20, 1984. 13 Why the hearing was reset to such a remote date is not explained. On September 13, 1984, Francisco filed an "Ex-Parte Motion for Execution and/or Finality of Order," contending that the Order of July 27, 1984 had become "final and executory on August 12, 1984" for failure of the Municipality to file a motion for reconsideration and/or appeal within the reglementary period," 14 i.e "fifteen (15) days counted from the notice of the final order .. appealed from. 15 On October 10, 1984, the Court issued an Order declaring the Municipality's motion for reconsideration dated August 15, 1984 to have been "filed out of time," on account of which the Court 49 could not give due course to and/or act x x (thereon) except to dismiss (as it did thereby dismiss) the same." 16 It drew attention to the fact that notice of its Order of July 24, 1984 (dismissing the complaint as against Francisco) was served on plaintiff Municipality on July 27, 1984, but its motion for reconsideration was not presented until August 17, 1984, beyond the fifteen-day period for appeal prescribed by law. And on October 15, 1985, His Honor promulgated another Order directing the issuance of (1) a writ of execution of the Order of July 24, 1984, and (2) a "certificate of finality" of said order. 17 The Municipality attempted to have the respondent Court reconsider both and Orders of October 10, and October 15, 1984. To this end it submitted a motion contending that: 18 1) "multiple appeals are allowed by law" in actions of eminent domain, and hence the period of appeal is thirty (30), not fifteen (15) days; 2) moreover, the grant of a separate trial at Francisco's instance had given rise "ipso facto to a situation where multiple appeals became available (Sections 4 and 5, Rule 36, .. Santos v. Pecson, 79 Phil. 261);" 3) it was wrong for the Trial Court to have acted exparte on the motion for execution, the motion being "litigable in character;" and 4) it (the Municipality) was denied due process when the Court, after receiving Francisco's evidence and admitting her exhibits, immediately resolved the case on the merits as regards Francisco, without setting the case "for further hearing for reception of evidence for the plaintiff." The motion was denied, by Order dated October 18, 1984; hence, the special civil action of certiorari at bar. 1. There are two (2) stages in every action of expropriation. The first is concerned with the determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts involved in the suit. 19 It ends with an order, if not of dismissal of the action, "of condemnation declaring that the plaintiff has a lawful right to take the property sought to be condemned, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the filing of the complaint." 20 An order of dismissal, if this be ordained, would be a final one, of course, since it finally disposes of the action and leaves nothing more to be done by the Court on the Merits. 21 So, too, would an order of condemnation be a final one, for thereafter, as the Rules expressly state, in the proceedings before the Trial Court, "no objection to the exercise of the right of condemnation (or the propriety thereof) shall be flied or heard. 22 The second phase of the eminent domain action is concerned with the determination by the Court of "the just compensation for the property sought to be taken." This is done by the Court with the assistance of not more than three (3) commissioners. 23 The order fixing the just compensation on the basis of the evidence before, and findings of, the commissioners would be final, too. It would finally dispose of the second stage of the suit, and leave nothing more to be done by the Court regarding the issue. Obviously, one or another of the parties may believe the order to be erroneous in its appreciation of the evidence or findings of fact or otherwise. Obviously, too, such a dissatisfied party may seek reversal of the order by taking an appeal therefrom. A similar two-phase feature is found in the special civil action of partition and accounting under Rule 69 of the Rules of Court. 24

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The first phase of a partition and/or accounting suit is taken up with the determination of whether or not a co-ownership in fact exists, and a partition is proper (i.e., not otherwise legally prescribed) and may be made by voluntary agreement of all the parties interested in the property. 25 This phase may end with a declaration that plaintiff is not entitled to have a partition either because a co-ownership does not exist, or partition is legally prohibited. 26 It may end, on the other hand, with an adjudgment that a co-ownership does in truth exist, partition is proper in the premises and an accounting of rents and profits received by the defendant from the real estate in question is in order. 27 In the latter case, "the parties may, ff they are able to agree, make partition among themselves by proper instruments of conveyance, and the court shall confirm the partition so agreed upon. 28, In either case i.e. either the action is dismissed or partition and/or accounting is decreed the order is a final one, and may be appealed by any party aggrieved thereby. 29 The second phase commences when it appears that "the parties are unable to agree upon the partition" directed by the court. In that event partition shall be done for the parties by the Court with the assistance of not more than three (3) commissioners. 30 This second stage may well also deal with the rendition of the accounting itself and its approval by the Court after the parties have been accorded opportunity to be heard thereon, and an award for the recovery by the party or parties thereto entitled of their just share in the rents and profits of the real estate in question." 31 Such an order is, to be sure, final and appealable. Now, this Court has settled the question of the finality and appealability of a decision or order decreeing partition or recovery of property and/or accounting. In Miranda v. Court of Appeals, decided on June 18, 1986,32 the Court resolved the question affirmatively, and expressly revoked the ruling in Zaldarriaga v. Enriquez 33 -that a decision or order of partition is not final because it leaves something more to be done in the trial court for the complete disposition of the case, i.e, the appointment of commissioners, the proceedings for the determination by said commissioners of just compensation, the submission of their reports, and hearing thereon, and the approval of the partition-and in Fuentebella vs. Carrascoso 34 -that a judgement for recovery of property with account is not final, but merely interlocutory and hence not appealable until the accounting is made and passed upon. As pointed out in Miranda, imperative considerations of public policy, of sound practice and adherence to the constitutional mandate of simplified, just, speedy and inexpensive determination of every action require that judgments for recovery (or partition) of property with accounting be considered as final judgments, duly appealable. This, notwithstanding that further proceedings will still have to be rendered by the party required to do so, it will be ventilated and discussed by the parties, and will eventually be passed upon by the Court. It is of course entirely possible that the Court disposition may not sit well with either the party in whose favor the accounting is made, or the party rendering it. In either case, the Court's adjudication on the accounting is without doubt a final one, for it would finally terminate the proceedings thereon and leave nothing more to be done by the Court on the merits of the issue. And it goes without saying that any party feeling aggrieved by that ultimate action of the Court on the accounting may seek reversal or modification thereof by the Court of Appeals or the Supreme Court. 35 The Miranda doctrine was reiterated in de Guzman v. C.A.- 36 Valdez v. Bagaso; 37 Lagunzad v. Gonzales; 38Cease v. C.A., 39 Macadangdang v. C.A. 40 and Hernandez v. C.A., 41 Gabor v. C.A. 42 Fabrica v. C.A . 43 No reason presents itself for different disposition as regards cases of eminent domain. On the contrary, the close analogy between the special actions of eminent domain and partition already pointed out, argues for the application of the same rule to both proceedings. The Court therefore holds that in actions of eminent domain, as in actions for partition, since no less than two (2) appeals are allowed by law, the period for appeal from an order of condemnation 44 is thirty (30) days counted from notice of order and not the ordinary period of fifteen (15) days prescribed for actions in general, conformably with the provision of Section 39 of Batas Pambansa Bilang 129, in relation to paragraph 19 (b) of the Implementing Rules to the effect that in "appeals in special proceedings in accordance with Rule 109 of the Rules of Court and other cases wherein multiple appeals are allowed, the period of appeal shall be thirty (30) days, a record of appeal being required. 45 The municipality's motion for reconsideration filed on August 17, 1984 was therefore timely presented, well within the thirty-day period laid down by law therefor; and it was error for the Trial Court to have ruled otherwise and to have declared that the order sought to be considered had become final and executory. 2. As already observed, the Municipality's complaint for expropriation impleaded eleven (11) defendants. A separate trial was held on motion of one of them, Erlinda Francisco, 46 it appearing that she had asserted a defense personal and peculiar to her, and inapplicable to the other defendants, supra. Subsequently, and on the basis of the evidence presented by her, the Trial Court promulgated a separate Order dismissing the action as to her, in accordance with Section 4, Rule 36 of the Rules of Court reading as follows: Sec. 4. Several judgments in an action against several defendants, the court may, when a several judgment is proper, render judgment against one or more of them, leaving the action to proceed against the others. It is now claimed by the Municipality that the issuance of such a separate, final order or judgment had given rise "ipso facto to a situation where multiple appeals became available." The Municipality is right. In the case at bar, where a single complaint was filed against several defendants having individual, separate interests, and a separate trial was held relative to one of said defendants after which a final order or judgment was rendered on the merits of the plaintiff s claim against that particular defendant, it is obvious that in the event of an appeal from that separate judgment, the original record cannot and should not be sent up to the appellate tribunal. The record will have to stay with the trial court because it will still try the case as regards the other defendants. As the rule above quoted settles, "In an action against several defendants, the court may, when a several judgment is proper, render judgment against one or more of them, leaving the action to proceed against the others. " 47 In lieu of the original record, a record on appeal will perforce have to be prepared and transmitted to the appellate court. More than one appeal being permitted in this case, therefore, "the period of appeal shall be thirty (30) days, a record of appeal being required as provided by the Implementing Rules in relation to Section 39 of B.P. Blg. 129, supra. 48 3. Erlinda Francisco filed a "motion to dismiss" intraverse of the averments of the Municipality's complaint for expropriation. That "motion to dismiss" was in fact the indicated responsive pleading to the complaint, "in lieu of an answer." 49

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Now, the Trial Court conducted a separate trial to determine whether or not, as alleged by Francisco in her "motion to dismiss," she had a "vested right via a pre-existing approved Locational Clearance from the HRSC.," making the expropriation suit premature. 50 While such a separate trial was not improper in the premises, 51 and was not put at issue by the Municipality, the latter did protest against the Trial Court's (a) reversing the order of trial and receiving first, the evidence of defendant Francisco, and (b) subsequently rendering its order sustaining Francisco's defense and dismissing the action as to her, solely on the basis of said Francisco's evidence and without giving the plaintiff an opportunity to present its own evidence on the issue. The Trial Court was clearly wrong on both counts. The Court will have to sustain the Municipality on these points. Nothing in the record reveals any valid cause to reverse the order of trial. What the Trial Court might have had in mind was the provision of Section 5, Rule 16 of the Rules of Court allowing "any of the grounds for dismissal" in Rule 16 to "be pleaded as an affirmative defense and authorizing the holding of a "preliminary hearing .. thereon as if a motion to dismiss had been filed." Assuming this to be the fact, the reception of Francisco's evidence first was wrong, because obviously, her asserted objection or defense that the locational clearance issued in her favor by the HSRC was a legal bar to the expropriation suit was not a ground for dismissal under Rule 16. She evidently meant to prove the Municipality's lack of cause of action; but lack of cause of action is not a ground for dismissal of an action under Rule 16; the ground is the failure of the complaint to state a cause of action, which is obviously not the same as plaintiff's not having a cause of action. Nothing in the record, moreover, discloses any circumstances from which a waiver by the Municipality of the right to present contrary proofs may be inferred. So, in deciding the issue without according the Municipality that right to present contrary evidence, the Trial Court had effectively denied the Municipality due process and thus incurred in another reversible error. 4. Turning now to the locational clearance issued by the HSRC in Francisco's favor on May 4, 1983, it seems evident that said clearance did become a "worthless sheet of paper," as averred by the Municipality, upon the lapse of one (1) year from said date in light of the explicit condition in the clearance that it 44 shall be considered automatically revoked if not used within a period of one (1) year from date of issue," and the unrebutted fact that Francisco had not really made use of it within that period. The failure of the Court to consider these facts, despite its attention having been drawn to them, is yet another error which must be corrected. WHEREFORE, the challenged Order issued by His Honor on July 24,1984 in Civil Case No. 8-1960 is ANNULLED AND SET ASIDE, and the case is remanded to the Trial Court for the reception of the evidence of the plaintiff Municipality of Bian as against defendant Erlinda Francisco, and for subsequent proceedings and judgment in accordance with the Rules of Court and the law. Costs against private respondent. SO ORDERED. Cruz, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

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FIRST DIVISION

G.R. No. 129279

March 4, 2003

ALFREDO M. OUANO, petitioner, vs. COURT OF APPEALS, and HEIRS OF JULIETA M. OUANO, respondents.

AZCUNA, J.:

Before us is a petition for review on certiorari against the decision and resolution of the Court of Appeals on CA-GR CV No. 334991 affirming the decision of the Regional Trial Court of Cebu, Branch 19, in Civil Case No. CEB-596, which set aside the extrajudicial foreclosure proceedings involving respondents' properties. From the documentary evidence and the Stipulation of Facts2 filed by the parties before the Regional Trial Court of Cebu, the facts of the case are, as follows: On June 8, 1977, respondent Julieta M. Ouano (Julieta), now deceased, obtained a loan from the Philippine National Bank (PNB) in the amount of P104,280.00. As security for said loan, she executed a real estate mortgage over two parcels of land located at Opao, Mandaue City. 3 She defaulted on her obligation. On September 29, 1980, PNB filed a petition for extrajudicial foreclosure with the City Sheriff of Mandaue City. On November 4, 1980, the sheriff prepared a notice of sale setting the date of public auction of the two parcels of land on December 5, 1980 at 9:00 a.m. to 4:00 p.m.4 He caused the notice to be published in the Cebu Daily Times, a newspaper of general circulation in Mandaue City, in its issues of November 13, 20 and 27, 1980.5 He likewise posted copies thereof in public places in Mandaue City and in the place where the properties are located.6 However, the sale as scheduled and published did not take place as the parties, on four separate dates, executed Agreements to Postpone Sale (Agreements).7 These Agreements were addressed to the sheriff, requesting the latter to defer the auction sale to another date at the same time and place, "without any further republication of the Notice." The first of the four pro-forma Agreements reads, as follows: AGREEMENT TO POSTPONE SALE Provincial Sheriff Mandaue City Sir: In accordance with this agreement of the parties in the above named case, it is respectfully requested that the auction sale of the properties of the mortgagor, scheduled to take place on December 5 1980 at 9:00o'clock in the morning at Office of the City Sheriff of Mandaue City be postponed to February 5, 1981, at the same time and place, without any further republication of the notice of sale as required by law. [italics supplied] Cebu City, December 11, 1980. PHILIPPINE NATIONAL BANK (Mortgagee) By: (SGD.) F.B. Briones Cebu Branch Branch Attorney (SGD.) JULIETA M. OUANO (Mortgagor) Address: Opao, Mandaue City On December 3, 1980, two days prior to the date of the sale as published, the parties executed and filed with the sheriff the Agreement to Postpone Sale moving the date of sale from December 5, 1980 to February 5, 1981.8 On February 5, 1981, however, no sale occurred. Eight days later, on February 13, 1981, the parties executed and filed for the second time a similar agreement moving the date of sale to February 28, 1981.9 Again, on February 28, 1981, no sale occurred.

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Ten days later, on March 10, 1981, the parties executed and filed for the third time a similar agreement moving the date of sale to March 30, 1981.10 No sale occurred on this date. On March 30, 1981, the parties executed for the fourth time a similar agreement moving the date of sale to May 29, 1981.11 This agreement was filed with the sheriff on April 30, 1981. In all these postponements, no new notice of sale was issued, nor was there any republication or reposting of notice for the rescheduled dates. Finally, on May 29, 1981, the sheriff conducted the auction sale, awarding the two parcels of land to PNB, the only bidder. He executed a Certificate of Sale certifying the sale for and in consideration of P195, 510.50.12 As Julieta failed to redeem the properties within the one year period from registration of sale, PNB consolidated its title on February 12, 1983.13 On February 23 of the same year, it conveyed the properties to herein petitioner Alfredo Ouano, the brother of Julieta, under a Deed of Promise to Sell payable in five years.14 On March 28, 1983, Julieta sent demand letters to PNB and petitioner, pointing out irregularities in the foreclosure sale. 15 On April 18, 1983, Julieta filed a complaint with the Regional Trial Court (RTC) of Cebu for the nullification of the May 29, 1981 foreclosure sale.16 Petitioner filed a motion for leave to intervene in said case, and filed his Answer in Intervention to protect his rights over the properties.17 While the case was pending, on February 25, 1986, PNB executed a Deed of Sale in favor of petitioner.18 The Register of Deeds of Mandaue City accordingly cancelled the TCTs in PNB's name and issued in lieu thereof TCTs in the name of petitioner over the two parcels of land.19 On January 29, 1990, the Regional Trial Court of Cebu rendered a decision in favor of Julieta, holding that the lack of republication rendered the foreclosure sale void. The dispositive portion of said decision state: WHEREFORE, judgment is hereby rendered, 1. declaring as null and void: a) the auction sale by the City Sheriff of Mandaue City on May 29, 1981 over the aforesaid properties of plaintiff Julieta Ouano; b) the Certificate of Sale (Exhibit K) issued by the City Sheriff of Mandaue City on May 29, 1981, in favor of the Philippine National Bank; c) the Deed of Sale (Exhibit L) executed by PNB to itself; d) the Deed of Promise to Sell (Exhibit O) executed by PNB on February 23, 1983 in favor of Alfredo Ouano e) the Deed of Sale (Exhibit 24) executed by PNB on February 5, 1986 in favor of Alfredo Ouano; f) TCT No. 17929 (Exhibit M) and TCT No. 17930 (Exhibit N) in the name of PNB; g) TCT No. 21982 (Exhibit 21) and TCT No. 21987 (Exhibit 22) in the name of Alfredo Ouano; 2. ordering the Register of Deeds of Mandaue City to cancel the aforementioned titles (TCT Nos. 17929 and 17930, as well as TCT Nos. 21982 and 21987), and to reinstate TCT Nos. 15724 (5033) and 24377 (6876) in the name of Julieta Ouano; 3. ordering the City Sheriff of Mandaue City to conduct a new auction sale strictly complying with the requirements for publication and posting as required by Act 3135, as amended by Act 4118; 4. ordering PNB to return to Alfredo Ouano all amounts the latter has paid to the said bank; 5. ordering Alfredo Ouano to vacate the premises in question and turn them over to Julieta Ouano; 6. ordering PNB to pay the plaintiff the sum equivalent to 10% of the market value of the properties in question as indicated in Tax Declaration Nos. 01134 and 00510, as attorney's fees, and to pay the costs. SO ORDERED.20 Not satisfied, PNB and petitioner brought the case to the Court of Appeals. 21 In its decision dated February 17, 1997, said court affirmed the trial court's ruling on the same ground that there was no compliance with the mandatory requirements of posting and publication of notice of sale. 22 Petitioner filed a motion for reconsideration, which was denied for lack of merit by the same court on April 15, 1997.23 PNB and petitioner filed their own petitions for review on certiorari before us. PNB's petition however was dismissed on July 21, 1997 for being filed out of time and for lack of certification of non-forum-shopping.24 The petition herein remaining is the one filed by petitioner.

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Petitioner assigns the following errors: I. RESPONDENT COURT OF APPEALS ERRED IN SUSTAINING THE FINDING OF THE LOWER COURT THAT THE POSTPONED AUCTION SALE OF SUBJECT PROPERTIES HELD ON MAY 29, 1981 UPON WRITTEN AGREEMENT OF THE PARTIES WAS NULL AND VOID FOR LACK OF PUBLICATION OF NOTICE OF SALE ON THE SAID DATE ALTHOUGH THE REQUIREMENTS OF PUBLICATION OF NOTICE OF SALE ON THE ORIGINALLY INTENDED DATE [WERE] FULLY COMPLIED WITH. II. RESPONDENT COURT OF APPEALS ERRED IN HOLDING THAT THE PROVISION OF SEC. 24, RULE 39 OF THE RULES OF COURT WHICH ALLOWS THE SHERIFF TO ADJOURN ANY SALE UPON EXECUTION TO ANY DATE AGREED UPON BY THE PARTIES IS NOT APPLICABLE TO THIS CASE. III. RESPONDENT COURT OF APPEALS ERRED IN HOLDING THAT JULIETA M. OUANO IS NOT ESTOPPED FROM CHALLENGING THE VALIDITY OF THE AUCTION SALE SINCE THE SALE WAS REPEATEDLY POSTPONED UPON HER REQUEST AND WRITTEN AGREEMENT[S] THAT THERE WOULD BE NO REPUBLICATION OF THE NOTICE OF SALE. IV. RESPONDENT COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE LOWER COURT ALTHOUGH JULIETA M. OUANO FILED HER COMPLAINT AFTER ALMOST TWO YEARS FROM THE DATE OF THE AUCTION SALE.25 The main issue before us is whether or not the requirements of Act No. 3135 were complied with in the May 29, 1981 foreclosure sale. The governing law for extrajudicial foreclosures is Act No. 3135 as amended by Act No. 4118. The provision relevant to this case is Section 3, which provides: SEC. 3. Notice shall be given by posting notices of the sale for not less than twenty (20) days in at least three public places of the municipality or city where the property is situated, and if such property is worth more than four hundred pesos, such notice shall also be published once a week for at least three consecutive weeks in a newspaper of general circulation in the municipality of city. It is a well-settled rule that statutory provisions governing publication of notice of mortgage foreclosure sales must be strictly complied with, and that even slight deviations therefrom will invalidate the notice and render the sale at least voidable. 26 In a number of cases, we have consistently held that failure to advertise a mortgage foreclosure sale in compliance with statutory requirements constitutes a jurisdictional defect invalidating the sale.27Consequently, such defect renders the sale absolutely void and no title passes.28 Petitioner, however, insists that there was substantial compliance with the publication requirement, considering that prior publication and posting of the notice of the first date were made. In Tambunting v. Court of Appeals,29 we held that republication in the manner prescribed by Act No. 3135 is necessary for the validity of a postponed extrajudicial foreclosure sale. Thus we stated: Where required by the statute or by the terms of the foreclosure decree, public notice of the place and time of the mortgage foreclosure sale must be given, a statute requiring it being held applicable to subsequent sales as well as to the first advertised sale of the property. [emphasis supplied]. Petitioner further contends that republication may be waived voluntarily by the parties.30 This argument has no basis in law. The issue of whether republication may be waived is not novel, as we have passed upon the same query in Philippine National Bank v. Nepomuceno Productions Inc,.31 Petitioner therein sought extrajudicial foreclosure of respondent's mortgaged properties with the Sheriff's Office of Pasig, Rizal. Initially scheduled on August 12, 1976, the auction sale was rescheduled several times without republication of the notice of sale, as stipulated in their Agreements to Postpone Sale. Finally, the auction sale proceeded on December 20, 1976, with petitioner as the highest bidder. Aggrieved, respondents sued to nullify the foreclosure sale. The trial court declared the sale void for non-compliance with Act No. 3135. This decision was affirmed in totoby the Court of Appeals. Upholding the conclusions of the trial and appellate court, we categorically held: Petitioner and respondents have absolutely no right to waive the posting and publication requirements of Act No. 3135. In People v. Donato, the Court expounded on what rights and privileges may be waived, viz.: xxx xxx xxx

[T]he principle is recognized that everyone has a right to waive, and agree to waive, the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing on any public right, and without detriment to the community at large. xxx xxx xxx

Although the general rule is that any right or privilege conferred by statute or guaranteed by constitution may be waived, a waiver in derogation of a statutory right is not favored, and a waiver will be inoperative and void if it infringes on the rights of others, or would be against public policy or morals and the public interest may be waived.

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xxx

xxx

xxx

The principal object of a notice of sale in a foreclosure of mortgage is not so much to notify the mortgagor as to inform the public generally of the nature and condition of the property to be sold, and of the time, place, and terms of the sale. Notices are given to secure bidders and prevent a sacrifice of the property. Clearly, the statutory requirements of posting and publication are mandated, not for the mortgagor's benefit, but for the public or third persons. In fact, personal notice to the mortgagor in extrajudicial foreclosure proceedings is not even necessary, unless stipulated. As such, it is imbued with public policy considerations and any waiver thereon would be inconsistent with the intent and letter of Act No. 3135. Publication, therefore, is required to give the foreclosure sale a reasonably wide publicity such that those interested might attend the public sale.32 To allow the parties to waive this jurisdictional requirement would result in converting into a private sale what ought to be a public auction. Moreover, assuming arguendo that the written waivers are valid, we find noticeable flaws that would nevertheless invalidate the foreclosure proceedings. First, the Agreements, as worded, only waived "further republication of the notice of sale." Nothing in the Agreements indicates that the parties likewise dispensed with the reposting of the notices of sale. As there was no reposting of notice of the May 29, 1981 sale, the foreclosure fell short of the requirements of Act No. 3135. Second, we observe that the Agreements were executed and filed with the sheriff several days after each rescheduled date. As stated in the facts, the first agreement was timely filed, two days prior to the originally scheduled sale on December 5, 1980. The second agreement, however, was executed and filed eight days after the rescheduled sale on February 5, 1981. The third agreement was executed and filed ten days after the rescheduled sale on February 28, 1981. The fourth agreement was timely executed, but was filed with the sheriff one month after the rescheduled sale on March 30, 1981. On the rescheduled dates, therefore, no public sale occurred, nor was there any request to postpone filed with the sheriff, except for the first one. In short, the Agreements are clearly defective for having been belatedly executed and filed with the sheriff. The party who may be said to be at fault for this failure, and who should bear the consequences, is no other than PNB, the mortgagee in the case at bar. It is the mortgagee who causes the mortgaged property to be sold, and the date of sale is fixed upon his instruction. 33 We have held that the mortgagee's right to foreclose a mortgage must be exercised according to the clear mandate of the law. Every requirement of the law must be complied with, lest the valid exercise of the right would end.34 PNB's inaction on the scheduled date of sale and belated filing of requests to postpone may be deemed as an abandonment of the petition to foreclose it filed with the sheriff. Consequently, its right to foreclose the mortgage based on said petition lapsed. In a vain attempt to uphold the validity of the aforesaid waiver, petitioner asserts that the Court of Appeals should have applied Rule 39, Section 24 of the Rules of Court, which allows adjournment of execution sales by agreement of the parties. The said provision provides: Sec. 24. Adjournment of Sale By written consent of debtor and creditor, the officer may adjourn any sale upon execution to any date agreed upon in writing by the parties. Without such agreement, he may adjourn the sale from day to day, if it becomes necessary to do so for lack of time to complete the sale on the day fixed in the notice.35 Petitioner submits that the language of the abovecited provision implies that the written request of the parties suffices to authorize the sheriff to reset the sale without republication or reposting.36 At the outset, distinction should be made of the three different kinds of sales under the law, namely: an ordinary execution sale, a judicial foreclosure sale, and an extrajudicial foreclosure sale. An ordinary execution sale is governed by the pertinent provisions of Rule 39 of the Rules of Court. Rule 68 of the Rules of Court applies in cases of judicial foreclosure sale. On the other hand, Act No. 3135, as amended by Act No. 4118 otherwise known as "An Act to Regulate the Sale of Property under Special Powers Inserted in or Annexed to Real Estate Mortgages" applies in cases of extrajudicial foreclosure sale. A different set of law applies to each class of sale mentioned.37 The cited provision in the Rules of Court hence does not apply to an extrajudicial foreclosure sale. Moreover, even assuming that the aforecited provision applies, all it authorizes is the adjournment of the execution sale by agreement of the parties. Nowhere does it state that republication and reposting of notice for the postponed sale may be waived. Thus, it cannot, by any means, sanction the waiver in the case at bar. Next, petitioner maintains that Julieta's act of requesting the postponement and repeatedly signing the Agreements had placed her under estoppel, barring her from challenging the lack of publication of the auction sale.38 We rule otherwise. Julieta did request for the postponement of the foreclosure sale to extend the period to settle her obligation.39 However, the records do not show that she requested the postponement without need of republication and reporting of notice of sale. In Nepomuceno,40 we held: . . . To request postponement of the sale is one thing; to request it without need of compliance with the statutory requirements is another. Respondents, therefore, did not commit any act that would have estopped them from questioning the validity of the foreclosure sale for noncompliance with Act No. 3135. . . . In addition, we observe herein that the Agreements prepared by the counsel of PNB were in standard forms of the bank, labeled as "Legal Form No. 41." The Nepomuceno41 case likewise involved an "Agreement to Postpone Sale" that was in a ready-made form, and the only participation of respondents therein was to affix or "adhere" their signatures thereto. We therefore held that said agreement partakes of the nature of a contract of adhesion, i.e., one in which one of the contracting parties imposes a ready-made form of contract which the other party may accept or reject, but cannot modify. One party prepares the stipulation in the contract, while the other party merely affixes his signature or his "adhesion" thereto, giving no room for negotiation, and depriving the latter of the opportunity to bargain on equal footing.42 As such, their terms are construed strictly against the party who drafted it.43 More importantly, the waiver being void for being contrary to the express mandate of Act No. 3135, such cannot be ratified by estoppel. 44 Estoppel cannot give validity to an act that is prohibited by law or one that is against public policy.45 Neither can the defense of illegality be waived.46

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Petitioner, moreover, makes much of the fact that Julieta filed her complaint with the trial court after almost two years from the May 29, 1981 auction sale, thus arguing that the delayed filing was a clear case of laches.47 Laches is the failure or neglect, for an unreasonable and unexplained length of time, to do that which by exercising due diligence, could or should have been done earlier.48 In the case at bar, Julieta only realized the defect in the foreclosure sale upon conferring with her counsel who discovered the irregularity.49 Thus, on March 25, 1983, Julieta filed her adverse claim with the Registrar of Deeds.50 Three days after, she sent demand letters to PNB and petitioner.51 Soon after they replied on April 6 and 7, 1983,52 she promptly sued to nullify the foreclosure sale in the Regional Trial Court of Mandaue City on April 20, 1983.53 She likewise filed a suit for forcible entry against petitioner in the Municipal Trial Court of Mandaue City. 54 Considering all these, we find the delay of almost two years not unreasonable. Julieta cannot be guilty of laches. Her prompt actions upon discovering her cause of action negate the claim that she has abandoned her right to claim the properties. Besides, this defense lacks merit in light of the Civil Code stating that an action or defense for the declaration of the inexistence of a contract does not prescribe.55 WHEREFORE, premises considered, the Decision dated February 17, 1997 in CA-G.R. CV No. 33499 and the Resolution therein dated April 15, 1997 are AFFIRMED. No costs. SO ORDERED. Davide, Jr., C.J ., Vitug, and Carpio, JJ ., concur. Ynares-Santiago, on leave.

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G.R. No. 160956

February 13, 2008

JOAQUIN QUIMPO, SR., substituted by Heirs of Joaquin Quimpo, Sr., petitioners, vs. CONSUELO ABAD VDA. DE BELTRAN, IRENEO ABAD, DANILO ABAD, MARITES ABAD, ANITA AND HELEN ABAD, respondents.

RESOLUTION

NACHURA, J.:

This Petition for Review on Certiorari assails the July 22, 2003 Decision1 of the Court of Appeals in CA-G.R. CV No. 56187, and the October 16, 2003 Resolution denying the motion for its reconsideration. Eustaquia Perfecto-Abad (Eustaquia) was the owner of several parcels of land in Goa, Camarines Sur, described as follows: Parcel I - Residential land situated at Abucayan, Goa, Camarines Sur covering an area of 684 square-meters; Parcel II Coconut land situated at Abucayan, Goa, Camarines Sur covering an area of 4.3731 hectares; Parcel III Residential land situated at San Jose Street, Goa, Camarines Sur covering an area of 1,395 square meters; and Parcel IV Abaca and coconut land situated at Abucayan, Goa, Camarines Sur covering an area 42.6127 hectares.2 Eustaquia died intestate in 1948 leaving these parcels of land to her grandchild and great grandchildren, namely, Joaquin Quimpo and respondents Consuelo, Ireneo, Danilo, Marites, Anita and Helen, all surnamed Abad. In 1966, Joaquin and respondents undertook an oral partition of parcel III (San Jose property) and parcel IV. Half of the properties was given to Joaquin and the other half to the respondents. However, no document of partition was executed, because Joaquin refused to execute a deed. Consuelo and Ireneo occupied their respective shares in the San Jose property, and installed several tenants over their share in parcel IV. Joaquin, on the other hand, became the administrator of the remaining undivided properties and of the shares of respondents Danilo, Marites, Anita and Helen, who were still minors at that time. In 1989, Danilo, Marites, Anita and Helen wanted to take possession of the portions allotted to them, but Joaquin prevented them from occupying the same. Joaquin also refused to heed respondents demand for partition of parcels I and II, prompting respondents to file a complaint for judicial partition and/or recovery of possession with accounting and damages with the Regional Trial Court (RTC) of Camarines Sur.3 Joaquin denied the material allegations in the complaint, and averred, as his special and affirmative defenses, lack of cause of action and prescription. He asserted absolute ownership over parcels III and IV, claiming that he purchased these lands from Eustaquia in 1946, evidenced by deeds of sale executed on August 23, 1946 and December 2, 1946. He, likewise, claimed continuous, peaceful and adverse possession of these lots since 1946, and alleged that Consuelos occupation of the portion of the San Jose property was by mere tolerance.4 During the pendency of the case, Joaquin died. Accordingly, he was substituted by his wife, Estela Tena-Quimpo and his children, namely, Jose, Adelia, Joaquin, Anita, Angelita, Amelia, Arlene, Joy and Aleli, all surnamed Quimpo (the Quimpos). On December 12, 1996, the RTC rendered a Decision 5 in favor of respondents, declaring them as co-owners of all the properties left by Eustaquia. It rejected Joaquins claim of absolute ownership over parcels III and IV, and declared void the purported deeds of sale executed by Eustaquia for lack of consideration and consent. The court found that at the time of the execution of these deeds, Joaquin was not gainfully employed and had no known source of income, which shows that the deeds of sale state a false and fictitious consideration. Likewise, Eustaquia could not have possibly given her consent to the sale because she was already 91 years old at that time. The RTC also sustained the oral partition among the heirs in 1966. According to the trial court, the possession and occupation of land by respondents Consuelo and Ireneo, and Joaquins acquiescence for 23 years, furnish sufficient evidence that there was actual partition of the properties. It held that Joaquin and his heirs are nowestopped from claiming ownership over the entire San Jose property as well as over parcel IV. The RTC disposed, thus: WHEREFORE, decision is hereby rendered in favor of the plaintiffs Consuelo Vda. de Beltran, Ireneo Abad, Marites Abad, Danilo Abad, Anita Abad and Helen Abad and against defendant Joaquin Quimpo, substituted by the latters wife Estela Tena and their children, Amparo, Jose, Amelia, Joaquin Jr., Adelia, Arlene, Anita, Joy, Angelita and Aleli, all surnamed Quimpo, as follows: 1. Ordering the above-named substituted defendants, and the plaintiffs to execute their written agreement of partition with respect to parcel Nos. III and IV more particularly described in paragraph 7 of the complaint, and for them to execute an agreement of partition with respect to parcel Nos. I and II, both parcels are more particularly described in paragraph 7 of the complaint; 2. Declaring the plaintiffs Danilo Abad, Marites Abad, Anita Abad and Helen Abad the owner of six (6) hectares a portion included in parcel No. IV also described in paragraph 7 of the complaint, and therefore, entitled to its possession and ordering the said substituted defendants to deliver that portion to them as their share thereto;

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3. Ordering the above-named substituted defendants to pay plaintiffs the sum of Six Thousand Pesos (P6,000.00), Philippine Currency, as reasonable attorneys fees and the sum of One Thousand Pesos (P1,000.00) also of Philippine Currency, as litigation expenses and for the said defendants to pay the costs. The counterclaim, not being proved, the same is hereby ordered dismissed. SO ORDERED.6 On appeal, the CA affirmed the RTC ruling. Sustaining the RTC, the CA declared that it was plausible that Eustaquias consent was vitiated because she was then 91 years old and sickly. It was bolstered by the fact that the deeds of sale only surfaced 43 years after its alleged execution and 23 years from the time of the oral partition. The CA also rejected petitioners argument that the action was barred by prescription and laches, explaining that prescription does not run against the heirs so long as the heirs, for whose benefit prescription is invoked, have not expressly or impliedly repudiated the co-ownership. The CA found no repudiation on Joaquins part. It, therefore, concluded that respondents action could not be barred by prescription or laches. The Quimpos, thus, filed the instant petition for review on certiorari imputing the following errors to the CA: 1) THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT PETITIONERS DID NOT ACQUIRE OWNERSHIP OVER [THE] SUBJECT PARCELS OF LAND BY WAY OF DEEDS OF ABSOLUTE SALE EXECUTED IN THEIR FAVOR; 2) THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT CO-OWNERSHIP EXISTS AMONG PETITIONERS AND RESPONDENTS OVER THE SUBJECT PARCELS OF LAND; 3) THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT RESPONDENTS HAVE PROVEN THEIR FILIATION TO THE ORIGINAL OWNER OF THE SUBJECT PARCELS OF LAND BY MERE SCANT EVIDENCE; 4) THE HONORABLE COURT OF APPEALS ERRED IN NOT RULING THAT LACHES HAS TIMEBARRED THE RESPONDENTS FROM ASSAILING THE ABSOLUTE OWNERSHIP OF PETITIONERS OVER THE SUBJECT PARCELS OF LAND; AND 5) THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT RESPONDENTS ARE ENTITLED TO ATTORNEYS FEES.7 The Quimpos insist on the validity of the deeds of sale between Joaquin and Eustaquia. They assail the probative value and weight given by the RTC and the CA in favor of the respondents pieces of evidence while refusing to give credence or value to the documents they presented. Specifically, they contend that the notarized deeds of sale and the tax declarations should have adequately established Joaquins ownership of parcels III and IV. The contention has no merit. Well-entrenched is the rule that the Supreme Courts role in a petition under Rule 45 is limited to reviewing or reversing errors of law allegedly committed by the appellate court. Factual findings of the trial court, especially when affirmed by the Court of Appeals, are conclusive on the parties. Since such findings are generally not reviewable, this Court is not duty-bound to analyze and weigh all over again the evidence already considered in the proceedings below, unless the factual findings complained of are devoid of support from the evidence on record or the assailed judgment is based on a misapprehension of facts.8 Petitioners fail to convince us that the CA committed reversible error in affirming the trial court and in giving no weight to the pieces of evidence they presented. The stated consideration for the sale are P5,000.00 and P6,000.00, respectively, an amount which was so difficult to raise in the year 1946. Respondents established that at the time of the purported sale Joaquin Quimpo was not gainfully employed. He was studying in Manila and Eustaquia was the one supporting him; that when Eustaquia died two (2) years later, Joaquin was not able to continue his studies. The Quimpos failed to override this. Except for the incredible and unpersuasive testimony of Joaquins daughter, Adelia Magsino, no other testimonial or documentary evidence was offered to prove that Joaquin was duly employed and had the financial capacity to buy the subject properties in 1946. In Rongavilla v. Court of Appeals,9 reiterated in Cruz v. Bancom Finance Corp,10 we held that a deed of sale, in which the stated consideration has not been, in fact, paid is a false contract; that it is void ab initio. Furthermore,Ocejo v. Flores,11 ruled that a contract of purchase and sale is null and void and produces no effect whatsoever where it appears that the same is without cause or consideration which should have been the motive thereof, or the purchase price which appears thereon as paid but which in fact has never been paid by the purchaser to the vendor. Likewise, both the trial court and the CA found that Eustaquia was 91 years old, weak and senile, at the time the deeds of sale were executed. In other words, she was already mentally incapacitated by then, and could no longer be expected to give her consent to the sale. The RTC and CA cannot, therefore, be faulted for not giving credence to the deeds of sale in favor of Joaquin. Petitioners also presented Tax Declaration Nos. 3650,12 3708,13 and 365914 to substantiate Joaquins claim of absolute dominion over parcels III and IV. But we note that these tax declarations are all in the name of Eustaquia Perfecto-Abad. These documents, therefore, do not support their claim of absolute dominion since 1946, but enervate it instead. Besides, the fact that the disputed property may have been declared for taxation purposes in the name of Joaquin Quimpo does not necessarily prove ownership for it is well settled that a tax declaration or tax receipts are not conclusive evidence of ownership.15 The CA, therefore, correctly found this proof inadequate to establish Joaquins claim of absolute dominion. For forty-three (43) years, Consuelo and Ireneo occupied their portions of the San Jose property and significantly, Joaquin never disturbed their possession. They also installed tenants in parcel IV, and Joaquin did not prevent them from doing so, nor did he assert his ownership over the same. These unerringly point to the fact that there was indeed an oral partition of parcels III and IV.

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In Maglucot-aw v. Maglucot,16 we held, viz.: [P]artition may be inferred from circumstances sufficiently strong to support the presumption. Thus, after a long possession in severalty, a deed of partition may be presumed. It has been held that recitals in deeds, possession and occupation of land, improvements made thereon for a long series of years, and acquiescence for 60 years, furnish sufficient evidence that there was an actual partition of land either by deed or by proceedings in the probate court, which had been lost and were not recorded. Furthermore, in Hernandez v. Andal,17 we explained that: On general principle, independent and in spite of the statute of frauds, courts of equity have enforced oral partition when it has been completely or partly performed. Regardless of whether a parol partition or agreement to partition is valid and enforceable at law, equity will in proper cases, where the parol partition has actually been consummated by the taking of possession in severalty and the exercise of ownership by the parties of the respective portions set off to each, recognize and enforce such parol partition and the rights of the parties thereunder. Thus, it has been held or stated in a number of cases involving an oral partition under which the parties went into possession, exercised acts of ownership, or otherwise partly performed the partition agreement, that equity will confirm such partition and in a proper case decree title in accordance with the possession in severalty. In numerous cases it has been held or stated that parol partitions may be sustained on the ground ofestoppel of the parties to assert the rights of a tenant in common as to parts of land divided by parol partition as to which possession in severalty was taken and acts of individual ownership were exercised. And a court of equity will recognize the agreement and decree it to be valid and effectual for the purpose of concluding the right of the parties as between each other to hold their respective parts in severalty. A parol partition may also be sustained on the ground that the parties thereto have acquiesced in and ratified the partition by taking possession in severalty, exercising acts of ownership with respect thereto, or otherwise recognizing the existence of the partition. A number of cases have specifically applied the doctrine of part performance, or have stated that a part performance is necessary, to take a parol partition out of the operation of the statute of frauds. It has been held that where there was a partition in fact between tenants in common, and a part performance, a court of equity would have regard to and enforce such partition agreed to by the parties. The CA, therefore, committed no reversible error in sustaining the oral partition over parcels III and IV and in invalidating the deeds of sale between Eustaquia and Joaquin. Similarly, we affirm the CA ruling that respondents are co-owners of the subject four (4) parcels of land, having inherited the same from a common ancestor Eustaquia Perfecto-Abad. Petitioners assertion that respondents failed to prove their relationship to the late Eustaquia deserves scant consideration. During the pre-trial, Joaquin Quimpo admitted that: Eustaquia Perfecto Abad and Diego Abad had two (2) children by the names of Leon Abad and Joaquin Abad; that Leon Abad has three (3) children namely: Anastacia, Wilfredo and Consuelo, all surnamed Abad; that Joaquin Abad has only one (1) child, a daughter by the name of Amparo; that Wilfredo has four (4) children, namely, Danilo, Helen, Marites and Anita; Amparo has one child, son Joaquin Quimpo, x x x 18 Consuelo was the grandchild of Eustaquia, while respondents Danilo, Helen, Marites, Anita and also Joaquin Quimpo were Eustaquias great grandchildren. As such, respondents can rightfully ask for the confirmation of the oral partition over parcels III and IV, and the partition of parcels I and II. Jurisprudence is replete with rulings that any co-owner may demand at any time the partition of the common property unless a co-owner has repudiated the co-ownership. This action for partition does not prescribe and is not subject to laches.19 Finally, petitioners challenge the attorneys fees in favor of respondents. The grant of attorneys fees depends on the circumstances of each case and lies within the discretion of the court. It may be awarded when a party is compelled to litigate or to incur expenses to protect its interest by reason of an unjustified act by the other,20 as in this case. In fine, we find no reversible error in the assailed rulings of the Court of Appeals. WHEREFORE, the petition is DENIED. The Decision and Resolution of the Court of Appeals in CA-G.R. CV No. 56187, are AFFIRMED. SO ORDERED.

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G.R. No. 110427 February 24, 1997

The Incompetent, CARMEN CAIZA, represented by her legal guardian, AMPARO EVANGELISTA,petitioner, vs. COURT OF APPEALS (SPECIAL FIRST DIVISION), PEDRO ESTRADA and his wife, LEONORA ESTRADA,respondents.

NARVASA, C.J.:

On November 20, 1989, being then ninety-four (94) years of age, Carmen Caiza, a spinster, a retired pharmacist, and former professor of the College of Chemistry and Pharmacy of the University of the Philippines, was declared incompetent by judgment 1 of the Regional Trial Court of Quezon City, Branch 107, 2 in a guardianship proceeding instituted by her niece, Amparo A. Evangelista. 3 She was so adjudged because of her advanced age and physical infirmities which included cataracts in both eyes and senile dementia. Amparo A. Evangelista was appointed legal guardian of her person and estate. Caiza was the owner of a house and lot at No. 61 Tobias St., Quezon City. On September 17, 1990, her guardian Amparo Evangelista commenced a suit in the Metropolitan Trial Court (MetroTC) of Quezon City (Branch 35) to eject the spouses Pedro and Leonora Estrada from said premises. 4 The complaint was later amended to identify the incompetent Caiza as plaintiff, suing through her legal guardian, Amparo Evangelista. The amended Complaint 5 pertinently alleged that plaintiff Caiza was the absolute owner of the property in question, covered by TCT No. 27147; that out of kindness, she had allowed the Estrada Spouses, their children, grandchildren and sons-in-law to temporarily reside in her house, rent-free; that Caiza already had urgent need of the house on account of her advanced age and failing health, "so funds could be raised to meet her expenses for support, maintenance and medical treatment;" that through her guardian, Caiza had asked the Estradas verbally and in writing to vacate the house but they had refused to do so; and that "by the defendants' act of unlawfully depriving plaintiff of the possession of the house in question, they . . (were) enriching themselves at the expense of the incompetent, because, while they . . (were) saving money by not paying any rent for the house, the incompetent . . (was) losing much money as her house could not be rented by others." Also alleged was that the complaint was "filed within one (1) year from the date of of first letter of demand dated February 3, 1990." In their Answer with Counterclaim, the defendants declared that they had been living in Caiza's house since the 1960's; that in consideration of their faithful service they had been considered by Caiza as her own family, and the latter had in fact executed a holographic will on September 4, 1988 by which she "bequeathed" to the Estradas the house and lot in question. Judgment was rendered by the MetroTC on April 13, 1992 in Caiza's favor, 6 the Estradas being ordered to vacate the premises and pay Caiza P5,000.00 by way of attorney's fees. But on appeal, 8 the decision was reversed by the Quezon City Regional Trial Court, Branch 96. 9 By judgment rendered on October 21, 1992, 10 the RTC held that the "action by which the issue of defendants' possession should be resolved is accion publiciana, the obtaining factual and legal situation . . demanding adjudication by such plenary action for recovery of possession cognizable in the first instance by the Regional Trial Court." Caiza sought to have the Court of Appeals reverse the decision of October 21, 1992, but failed in that attempt. In a decision 11 promulgated on June 2, 1993, the Appellate Court 12 affirmed the RTC's judgment in toto. It ruled that (a) the proper remedy for Caiza was indeed an accion publiciana in the RTC, not an accion interdictal in the MetroTC, since the "defendants have not been in the subject premises as mere tenants or occupants by tolerance, they have been there as a sort of adopted family of Carmen Caiza," as evidenced by what purports to be the holographic will of the plaintiff; and (b) while "said will, unless and until it has passed probate by the proper court, could not be the basis of defendants' claim to the property, . . it is indicative of intent and desire on the part of Carmen Caiza that defendants are to remain and are to continue in their occupancy and possession, so much so that Caiza's supervening incompetency can not be said to have vested in her guardian the right or authority to drive the defendants out." 13 Through her guardian, Caiza came to this Court praying for reversal of the Appellate Court's judgment. She contends in the main that the latter erred in (a) holding that she should have pursued an accion publiciana, and not an accion interdictal; and in (b) giving much weight to "a xerox copy of an alleged holographic will, which is irrelevant to this case." 14 In the responsive pleading filed by them on this Court's requirement, 15 the Estradas insist that the case against them was really not one of unlawful detainer; they argue that since possession of the house had not been obtained by them by any "contract, express or implied," as contemplated by Section 1, Rule 70 of the Rules of Court, their occupancy of the premises could not be deemed one "terminable upon mere demand (and hence never became unlawful) within the context of the law." Neither could the suit against them be deemed one of forcible entry, they add, because they had been occupying the property with the prior consent of the "real owner," Carmen Caiza, which "occupancy can even ripen into full ownership once the holographic will of petitioner Carmen Caiza is admitted to probate." They conclude, on those postulates, that it is beyond the power of Caiza's legal guardian to oust them from the disputed premises. Carmen Caiza died on March 19, 1994, 16 and her heirs the aforementioned guardian, Amparo Evangelista, and Ramon C. Nevado, her niece and nephew, respectively were by this Court's leave, substituted for her. 17 Three issues have to be resolved: (a) whether or not an ejectment action is the appropriate judicial remedy for recovery of possession of the property in dispute; (b) assuming desahucio to be proper, whether or not Evangelista, as Caiza's legal guardian had authority to bring said action; and (c) assuming an affirmative answer to both questions, whether or not Evangelista may continue to represent Caiza after the latter's death. I

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It is axiomatic that what determines the nature of an action as well as which court has jurisdiction over it, are the allegations of the complaint and the character of the relief sought. 18 An inquiry into the averments of the amended complaint in the Court of origin is thus in order. 19 The amended Complaint alleges: 20 6. That the plaintiff Carmen Caiza, is the sole and absolute owner of a house and lot at No. 61 Scout Tobias, Quezon City, which property is now the subject of this complaint; xxx xxx xxx 9. That the defendants, their children, grandchildren and sons-in-law, were allowed to live temporarily in the house of plaintiff Carmen Caiza, for free, out of her kindness; 10. That the plaintiff, through her legal guardian, has duly notified the defendants, for them to vacate the said house, but the two (2) letters of demand were ignored and the defendants refused to vacate the same. . . 11. That the plaintiff, represented by her legal guardian, Amparo Evangelista, made another demand on the defendants for them to vacate the premises, before Barangay Captain Angelina A. Diaz of Barangay Laging Handa, Quezon City, but after two (2) conferences, the result was negative and no settlement was reached. A photocopy of the Certification to File Action dated July 4, 1990, issued by said Barangay Captain is attached, marked Annex "D" and made an integral part hereof; 12. That the plaintiff has given the defendants more than thirty (30) days to vacate the house, but they still refused to vacate the premises, and they are up to this time residing in the said place; 13. That this complaint is filed within one (1) year from the date of first letter of demand dated February 3, 1990 (Annex "B") sent by the plaintiff to the defendants, by her legal guardian Amparo Evangelista; 14. By the defendants' act of unlawfully depriving the plaintiff of the possession of the house in question, they are enriching themselves at the expense of the incompetent plaintiff because, while they are saving money by not paying any rent for the house, the plaintiff is losing much money as her house could not be rented by others; 15. That the plaintiff's health is failing and she needs the house urgently, so that funds could be raised to meet her expenses for her support, maintenance and medical treatment; 16. That because of defendants' refusal to vacate the house at No. 61 Scout Tobias, Quezon City, the plaintiff, through her legal guardian, was compelled to go to court for justice, and she has to spend P10,000.00 as attorney's fees. Its prayer 21 is quoted below: WHEREFORE, in the interest of justice and the rule of law, plaintiff, Carmen Caiza, represented by her legal guardian, Amparo Evangelista, respectfully prays to this Honorable Court, to render judgment in favor of plaintiff and against the defendants as follows: 1. To order the defendants, their children, grandchildren, sons-in-law and other persons claiming under them, to vacate the house and premises at No. 6 1 Scout Tobias, Quezon City, so that its possession can be restored to the plaintiff Carmen Caiza; and 2. To pay attorney's fees in the amount of P10,000.00; 3. To pay the costs of the suit. In essence, the amended complaint states: 1) that the Estradas were occupying Caiza's house by tolerance having been "allowed to live temporarily . . (therein) for free, out of . . (Caiza's) kindness;" 2) that Caiza needed the house "urgently" because her "health . . (was) failing and she . . (needed) funds . . to meet her expenses for her support, maintenance and medical treatment;" 3) that through her general guardian, Caiza requested the Estradas several times, orally and in writing, to give back possession of the house; 4) that the Estradas refused and continue to refuse to give back the house to Caiza, to her continuing prejudice; and 5) that the action was filed within one (1) year from the last demand to vacate.

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Undoubtedly, a cause of action for desahucio has been adequately set out. It is settled that in an action for unlawful detainer, it suffices to allege that the defendant is unlawfully withholding possession from the plaintiff is deemed sufficient, 22 and a complaint for unlawful detainer is sufficient if it alleges that the withholding of possession or the refusal to vacate is unlawful without necessarily employing the terminology of the law. 23 The Estradas' first proffered defense derives from a literal construction of Section 1, Rule 70 of the Rules of Court which inter alia authorizes the institution of an unlawful detainer suit when "the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied." They contend that since they did not acquire possession of the property in question " by virtue of any contract, express or implied" they having been, to repeat, "allowed to live temporarily . . (therein) for free, out of . . (Caiza's) kindness" in no sense could there be an "expiration or termination of . . (their) right to hold possession, by virtue of any contract, express or implied." Nor would an action for forcible entry lie against them, since there is no claim that they had "deprived (Caiza) of the possession of . . (her property) by force, intimidation, threat, strategy, or stealth. The argument is arrant sophistry. Caiza's act of allowing the Estradas to occupy her house, rent-free, did not create a permanent and indefeasible right of possession in the latter's favor. Common sense, and the most rudimentary sense of fairness clearly require that that act of liberality be implicitly, but no less certainly, accompanied by the necessary burden on the Estradas of returning the house to Caiza upon her demand. More than once has this Court adjudged that a person who occupies the land of another at the latter's tolerance or permission without any contract between them is necessarily bound by an implied promise that he will vacate upon demand, failing which a summary action for ejectment is the proper remedy against him. 24 The situation is not much different from that of a tenant whose lease expires but who continues in occupancy by tolerance of the owner, in which case there is deemed to be an unlawful deprivation or withholding of possession as of the date of the demand to vacate. 25 In other words, one whose stay is merely tolerated becomes a deforciant illegally occupying the land or property the moment he is required to leave. 26 Thus, in Asset Privatization Trust vs. Court of Appeals, 27 where a company, having lawfully obtained possession of a plant upon its undertaking to buy the same, refused to return it after failing to fulfill its promise of payment despite demands, this Court held that "(a)fter demand and its repudiation, . . (its) continuing possession . . became illegal and the complaint for unlawful detainer filed by the . . (plant's owner) was its proper remedy. It may not be amiss to point out in this connection that where there had been more than one demand to vacate, the one-year period for filing the complaint for unlawful detainer must be reckoned from the date of the last demand, 28 the reason being that the lessor has the option to waive his right of action based on previous demands and let the lessee remain meanwhile in the premises. 29 Now, the complaint filed by Caiza's guardian alleges that the same was "filed within one (1) year from the date of the first letter of demand dated February 3, 1990." Although this averment is not in accord with law because there is in fact a second letter of demand to vacate, dated February 27, 1990, the mistake is inconsequential, since the complaint was actually filed on September 17, 1990, well within one year from the second (last) written demand to vacate. The Estradas' possession of the house stemmed from the owner's express permission. That permission was subsequently withdrawn by the owner, as was her right; and it is immaterial that the withdrawal was made through her judicial guardian, the latter being indisputably clothed with authority to do so. Nor is it of any consequence that Carmen Caiza had executed a will bequeathing the disputed property to the Estradas; that circumstance did not give them the right to stay in the premises after demand to vacate on the theory that they might in future become owners thereof, that right of ownership being at best inchoate, no transfer of ownership being possible unless and until the will is duly probated. Thus, at the time of the institution of the action of desahucio, the Estradas had no legal right to the property, whether as possessors by tolerance or sufferance, or as owners. They could not claim the right of possession by sufferance; that had been legally ended. They could not assert any right of possession flowing from their ownership of the house; their status as owners is dependent on the probate of the holographic will by which the property had allegedly been bequeathed to them an event which still has to take place; in other words, prior to the probate of the will, any assertion of possession by them would be premature and inefficacious. In any case, the only issue that could legitimately be raised under the circumstances was that involving the Estradas' possession by tolerance, i.e., possession de facto, not de jure. It is therefore incorrect to postulate that the proper remedy for Caiza is not ejectment but accion publiciana, a plenary action in the RTC or an action that is one for recovery of the right to possession de jure. II The Estradas insist that the devise of the house to them by Caiza clearly denotes her intention that they remain in possession thereof, and legally incapacitated her judicial guardian, Amparo Evangelista, from evicting them therefrom, since their ouster would be inconsistent with the ward's will. A will is essentially ambulatory; at any time prior to the testator's death, it may be changed or revoked; 30 and until admitted to probate, it has no effect whatever and no right can be claimed thereunder, the law being quite explicit: "No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court" (ART. 838, id.). 31 An owner's intention to confer title in the future to persons possessing property by his tolerance, is not inconsistent with the former's taking back possession in the meantime for any reason deemed sufficient. And that in this case there was sufficient cause for the owner's resumption of possession is apparent: she needed to generate income from the house on account of the physical infirmities afflicting her, arising from her extreme age. Amparo Evangelista was appointed by a competent court the general guardian of both the person and the estate of her aunt, Carmen Caiza. Her Letters of Guardianship 32 dated December 19, 1989 clearly installed her as the "guardian over the person and properties of the incompetent CARMEN CANIZA with full authority to take possession of the property of said incompetent in any province or provinces in which it may be situated and to perform all other acts necessary for the management of her properties . . " 33 By that appointment, it became Evangelista's duty to care for her aunt's person, to attend to her physical and spiritual needs, to assure her well-being, with right to custody of her person in preference to relatives and friends. 34 It also became her right and duty to get possession of, and exercise control over, Caiza's property, both real and personal, it being recognized principle that the ward has no right to possession or control of his property during her incompetency.35 That right to manage the ward's estate carries with it the right to take possession thereof and recover it from anyone who retains it, 36 and bring and defend such actions as may be needful for this purpose. 37 Actually, in bringing the action of desahucio, Evangelista was merely discharging the duty to attend to "the comfortable and suitable maintenance of the ward" explicitly imposed on her by Section 4, Rule 96 of the Rules of Court, viz.:

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Sec. 4. Estate to be managed frugally, and proceeds applied to maintenance of ward. A guardian must manage the estate of his ward frugally and without waste, and apply the income and profits thereof, so far as maybe necessary, to the comfortable and suitable maintenance of the ward and his family, if there be any; and if such income and profits be insufficient for that purpose, the guardian may sell or encumber the real estate, upon being authorized by order to do so, and apply to such of the proceeds as may be necessary to such maintenance. Finally, it may be pointed out in relation to the Estradas's defenses in the ejectment action, that as the law now stands, even when, in forcible entry and unlawful detainer 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 Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts nevertheless have the undoubted competence to resolve "the issue of ownership . . only to determine the issue of possession." 38 III As already stated, Carmen Caiza passed away during the pendency of this appeal. The Estradas thereupon moved to dismiss the petition, arguing that Caiza's death automatically terminated the guardianship, Amaparo Evangelista lost all authority as her judicial guardian, and ceased to have legal personality to represent her in the present appeal. The motion is without merit. While it is indeed well-established rule that the relationship of guardian and ward is necessarily terminated by the death of either the guardian or the ward, 39 the rule affords no advantage to the Estradas. Amparo Evangelista, as niece of Carmen Caiza, is one of the latter's only two (2) surviving heirs, the other being Caiza's nephew, Ramon C. Nevado. On their motion and by Resolution of this Court 40 of June 20, 1994, they were in fact substituted as parties in the appeal at bar in place of the deceased, in accordance with Section 17, Rule 3 of the Rules of Court, viz.: 41 Sec. 18. Death of a party. After a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representative of the deceased to appear and be substituted for the deceased within a period of thirty (30) days, or within such time as may be granted. If the legal representative fails to appear within said time, the court may order the opposing party to procure the appointment of a legal representative of the deceased within a time to be specified by the court, and the representative shall immediately appear for and on behalf of the interest of the deceased. The court charges involved in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint guardian ad litem for the minor heirs. To be sure, an ejectment case survives the death of a party. Caiza's demise did not extinguish the desahucio suit instituted by her through her guardian. 42 That action, not being a purely personal one, survived her death; her heirs have taken her place and now represent her interests in the appeal at bar. WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals promulgated on June 2, 1993 affirming the Regional Trial Court's judgment and dismissing petitioner's petition for certiorari is REVERSED and SET ASIDE, and the Decision dated April 13, 1992 of the Metropolitan Trial Court of Quezon City, Branch 35, in Civil Case No. 3410 is REINSTATED and AFFIRMED. Costs against private respondents. SO ORDERED. Narvasa, C.J., Davide, Jr., Melo, Francisco and Panganiban, JJ., concur.

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G.R. Nos. 79690-707 October 7, 1988

ENRIQUE A. ZALDIVAR, petitioner, vs. THE HONORABLE SANDIGANBAYAN and HONORABLE RAUL M. GONZALEZ, claiming to be and acting as Tanodbayan-Ombudsman under the 1987 Constitution, respondents.

G.R. No. 80578 October 7, 1988

ENRIQUE A. ZALDIVAR, petitioner, vs. HON. RAUL M. GONZALEZ, claiming to be and acting as Tanodbayan-Ombudsman ombudsman under the 1987 Constitution, respondent.

PER CURIAM:

The following are the subjects of this Resolution: 1) a Motion, dated 9 February 1988, to Cite in Contempt filed by petitioner Enrique A. Zaldivar against public respondent Special Prosecutor (formerly Tanodbayan) Raul M. Gonzalez, in connection with G.R. Nos. 79690-707 and G.R. No. 80578. and 2) a Resolution of this Court dated 2 May 1988 requiring respondent Hon. Raul Gonzalez to show cause why he should not be punished for contempt and/or subjected to administrative sanctions for making certain public statements. I The pertinent facts are as follows: Petitioner Zaldivar is one of several defendants in Criminal Cases Nos. 12159-12161 and 12163-12177 (for violation of the Anti-Graft and Corrupt Practices Act) pending before the Sandiganbayan. The Office of the Tanodbayan conducted the preliminary investigation and filed the criminal informations in those cases (originally TBP Case No. 86-00778). On 10 September 1987, petitioner filed with this Court a Petition for Certiorari, Prohibition and mandamus (G.R. Nos. 79690-707) naming as respondents both the Sandiganbayan and Hon. Raul M. Gonzalez. Among other things, petitioner assailed: (1) the 5 February 1987 Resolution 1 of the "Tanodbayan" recommending the filing of criminal informations against petitioner Zaldivar and his co-accused in TBP Case No. 86-00778; and (2) the 1 September 1987 Resolution 2 of the Sandiganbayan in Criminal Cases Nos. 12159-12161 and 1216312177 denying his Motion to Quash the criminal informations filed in those cases by the "Tanodbayan." In this respect, petitioner alleged that respondent Gonzalez, as Tanodbayan and under the provisions of the 1987 Constitution, was no longer vested with power and authority independently to investigate and to institute criminal cases for graft and corruption against public officials and employees, and hence that the informations filed in Criminal Cases Nos. 12159-12161 and 12163-12177 were all null and void. On 11 September 1987, this Court issued a Resolution, which read: G.R. Nos. 79690-707 (Enrique A. Zaldivar vs. The Honorable Sandiganbayan and Honorable Raul M. Gonzalez, Claiming To Be and Acting as Tanodbayan-Ombudsman under the 1987 Constitution ).Acting on the special civil action for certiorari, prohibition and mandamus under Rule 65 of the Rules of Court, with urgent motion for preliminary elimination injunction, the Court Resolved, without giving due course to the petition, to require the respondents to COMMENT thereon, within ten (10) days from notice. The Court further Resolved to ISSUE a TEMPORARY RESTRAINING ORDER, effective immediately and continuing until further orders from this Court, ordering respondent Sandiganbayan to CEASE and DESIST from hearing and trying Criminal Cases Nos. 12159 to 12161 and 12163 to 12177 insofar as petitioner Enrique Zaldivar is concerned and from hearing and resolving the Special Prosecutor's motion to suspend dated September 3, 1987. The parties later filed their respective pleadings. Petitioner Zaldivar filed with this Court a second Petition for certiorari and Prohibition (G.R. No. 80578) on 19 November 1987, initially naming only Hon. Raul M. Gonzalez as respondent. That Petition assailed the 24 September 1987 Resolution 3 of the "Tanodbayan" in TBP Case No. 87- 01304 recommending that additional criminal charges for graft and corruption be filed against petitioner Zaldivar and five (5) other individuals. Once again, petitioner raised the argument of the Tanodbayan's lack of authority under the 1987 Constitution to file such criminal cases and to investigate the same. Petitioner also moved for the consolidation of that petition with G.R. No. 79690-707. In a Resolution dated 24 November 1987, 4 this Court, without giving due course to the second petition: (1) required respondent Gonzalez to submit a comment thereon: and (2) issued a temporary restraining order "ordering respondent Hon. Raul M. Gonzalez to CEASE and DESIST from further acting in TBP Case No. 87-01394 ... and particularly, from filing the criminal information consequent thereof and from conducting preliminary investigation therein." In a separate resolution of the same date, 5 G.R. Nos. 79690-707 and G.R. No. 80578 were ordered consolidated by the Court. In the meantime, however, on 20 November 1987 or four (4) days prior to issuance by this Court of a temporary restraining order in G.R. No. 80578, the Office of the Tanodbayan instituted Criminal Case No. 12570 6 with the Sandiganbayan which issued on 23 November 1987 an Order of Arrest 7 for petitioner Zaldivar and his co-accused in Criminal Case No. 12570. Upon Motion 8 of petitioner Zaldivar, this Court issued the following Resolution on 8 December 1987:

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G.R. No. 80578 (Enrique A. Zaldivar vs. Hon. Raul M. Gonzalez and Sandiganbayan). The motion filed by the Solicitor General for respondents for an extension of thirty (30) days from the expiration of the original period within which to file comment on the petition for certiorari and prohibition with prayer for a writ of preliminary injunction or restraining order is GRANTED. Acting on the manifestation with motion to treat the Sandiganbayan as party-respondent, the Court Resolved to (a) Consider IMPLEADED the Sandiganbayan as party respondent; and (b) In pursuance of and supplementing the Temporary Restraining Order of November 24, 1987 "ordering respondent Hon. Raul M. Gonzalez to CEASE and DESIST from further acting in TBP Case No. 87-01304 entitled, "Commission on Audit vs. Gov. Enrique Zaldivar, et al." and particularly, from filing the criminal information consequent thereof and from conducting preliminary investigation therein" ISSUE a TEMPORARY RESTRAINING ORDER effective immediately and continuing until further orders from this Court, ordering respondents Hon. Raul M. Gonzalez and Sandiganbayan to CEASE and DESIST from further acting in Criminal Case No. 12570, entitled, "People of the Philippines vs. Enrique M. Zaldivar, et al." and from enforcing the order of arrest issued by the Sandiganbayan in said case. The Solicitor General filed a Comment 9 on the petition in G.R. No. 80578, and we required the petitioner to submit a Reply 10 thereto. On 9 February 1988, petitioner Zaldivar filed with the Court a Motion to Cite in Contempt 11 directed at respondent Gonzalez. The Motion cited as bases the acts of respondent Gonzalez in: (1) having caused the filing of the information against petitioner in Criminal Case No. 12570 before the Sandiganbayan; and (2) issuing certain allegedly contemptuous statements to the media in relation to the proceedings in G.R. No. 80578. In respect of the latter, petitioner annexed to his Motion a photocopy of a news article, reproduced here in toto, which appeared in the 30 November 1987 issue of the "Philippine Daily Globe:" Tanod Scores SC for Quashing Graft Case TANODBAYAN Justice Raul M. Gonzalez said yesterday the Supreme Court order stopping him from investigating graft cases involving Antique Gov. Enrique Zaldivar can aggravate the thought that affluent persons "an prevent the progress of a trial." What I am afraid of (with the issuance of the order) is that it appears that while rich and influential persons get favorable actions from the Supreme Court, it is difficult for an ordinary litigant to get his petition to be given due course. Gonzalez told the Daily Globe in an exclusive interview. Gonzalez said the high tribunal's order '"eightens the people's apprehension over the justice system in this country, especially because the people have been thinking that only the small fly can get it while big fishes go scot-free." Gonzalez was reacting to an order issued by the tribunal last week after Zaldivar petitioned the court to stop the Tanodbayan from investigating graft cases filed against him. Zaldivar had charged that Gonzalez was biased in his investigations because the latter wanted to help promote the political fortunes of a friend from Antique, lawyer Bonifacio Alentajan. Acting on Zaldivar's petition, the high court stopped Gonzalez from investigating a graft charge against the governor, and from instituting any complaint with the Sandiganbayan. While President Aquino had been prodding me to prosecute graft cases even if they involve the high and mighty, the Supreme Court had been restraining me. Gonzalez said. In accordance with the President's order, Gonzalez said he had filed graft cases against two "very powerful" officials of the Aquino government-Commissioner Quintin Doromal of the Presidential Commission on Good Government and Secretary Jiamil I.M. Dianlan of the Office of Muslim Affairs and Cultural Communities. While I don't wish to discuss the merits of the Zaldivar petition before the Supreme Court, I am a little bit disturbed that (the order) can aggravate the thinking of some people that affluent persons can prevent the progress of a trial, he said. He disclosed that he had a talk with the Chief Executive over the weekend and that while she symphatizes with local officials who are charged in court during election time, 'She said that it might be a disservice to the people and the voters who are entitled to know their candidates. Gonzalez said that while some cases filed against local officials during election time could be mere harassment suits, the Constitution makes it a right of every citizen to be informed of the character of tile candidate, who should be subject to scrutiny. (Emphasis supplied) Acting on petitioner's Motion to Cite in Contempt, the Court on 16 February 1988 required respondent Gonzalez "to COMMENT on aforesaid Motion within ten (10) days from notice." 12 On 27 April 1988, the Court rendered its Decision 13 (per curiam) in the Consolidated Petitions. The dispositive portion thereof read: WHEREFORE, We hereby:

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(1) GRANT the consolidated petitions filed by petitioner Zaldivar and hereby NULLIFY the criminal informations filed against him in the Sandiganbayan; and (2) ORDER respondent Raul Gonzalez to cease and desist from conducting investigations and filing criminal cases with the Sandiganbayan or otherwise exercising the powers and functions of the Ombudsman. SO ORDERED. A Motion for Reconsideration 14 was filed by respondent Gonzalez the next day, 28 April 1988. In his Motion, respondent Gonzalez, after having argued the legal merits of his position, made the following statements totally unrelated to any legal issue raised either in the Court's Decision or in his own Motion: 1. That he "ha(d) been approached twice by a leading member of the court ... and he was asked to 'go slow on Zaldivar and 'not to be too hard on him;' " 2. That he "was approached and asked to refrain from investigating the COA report on illegal disbursements in the Supreme Court because 'it will embarass the Court;" and 3. That "(i)n several instances, the undersigned respondent was called over the phone by a leading member of the Court and was asked to dismiss the cases against (two Members of the Court)." Respondent Gonzalez also attached three (3) handwritten notes 15 which he claimed were sent by "some members of this Honorable Court, interceeding for cases pending before this office (i.e., the Tanodbayan)." He either released his Motion for Reconsideration with facsimiles of said notes to the press or repeated to the press the above extraneous statements: the metropolitan papers for the next several days carried long reports on those statements and variations and embellishments thereof On 2 May 1988, the Court issued the following Resolution in the Consolidated Petitions: G.R. No. 79690-707 (Enrique Zaldivar vs. The Hon. Sandiganbayan, et al. G.R. No. 80578 (Enrique A. Zaldivar vs. Hon. Raul M. Gonzalez, etc). 1. Acting on the Motion for Reconsideration filed by respondent Gonzalez under date of April 28, 1988, the Court Resolved to REQUIRE the petitioner to COMMENT thereon within ten (10) days from notice hereof. 2. It appearing that respondent Raul M. Gonzalez has made public statements to the media which not only deal with matters subjudice but also appear offensive to and disrespectful of the Court and its individual members and calculated, directly or indirectly, to bring the Court into disrepute, discredit and ridicule and to denigrate and degrade the administration of justice, the Court Resolved to require respondent Gonzalez to explain in writing within ten (10) days from notice hereof, why he should not be punished for contempt of court and/or subjected to administrative sanctions for making such public statements reported in the media, among others, in the issues of the "Daily Inquirer," the "Journal," the "Manila Times," the "Philippine Star," the "Manila Chronicle" the "Daily Globe" and the "Manila Standard" of April 29 and 30, and May 1, 1988, to wit: (a) That the Court resolution in question is merely "an offshoot of the position he had taken that the SC Justices cannot claim immunity from suit or investigation by government prosecutors or motivated by a desire to stop him 'from investigating cases against some of their proteges or friends;" (b) That no less than six of the members of the Court "interceded for and on behalf of persons with pending cases before the Tanodbayan," or sought "to pressure him to render decisions favorable to their colleagues and friends;" (c) That attempts were made to influence him to go slow on Zaldivar and not to be too hard on him and to refrain from investigating the Commission on Audit report on illegal disbursements in the Supreme Court because it will embarass the Court; (d) That there were also attempts to cause the dismissal of cases against two Associate Justices; and (e) That the Court had dismissed judges' without rhyme or reason' and disbarred lawyers 'without due process. 3. It further appearing that three (3) affidavits relative to the purpose of and circumstances attendant upon the notes written to said public respondent by three (3) members of the Court have since been submitted to the Court and now form part of its official records, the Court further Resolved to require the Clerk of Court to ATTACH to this Resolution copies of said sworn statements and the annexes thereto appended, and to DIRECT respondent Gonzalez also to comment thereon within the same period of ten (10) days. 4. It finally appearing that notice of the Resolution of February 16, 1988 addressed to respondent Gonzalez was misdelivered and therefore not served on him, the Court Resolved to require the Clerk of Court to CAUSE SERVICE of said Resolution on the respondent and to REQUIRE the latter to comply therewith. Respondent Gonzalez subsequently filed with this Court on 9 May 1988 an Omnibus Motion for Extension and Inhibition 16 alleging, among other things: that the above quoted 2 May 1988 Resolution of the Court "appears to have overturned that presumption [of innocence] against him:" and that "he gravely doubts whether that 'cold neutrality [of an impartial judge] is still available to him" there being allegedly "at least 4 members of this Tribunal who

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will not be able to sit in judgment with substantial sobriety and neutrality." Respondent Gonzalez closed out his pleading with a prayer that the four (4) Members of the Court Identified and referred to there by him inhibit themselves in the deliberation and resolution of the Motion to Cite in Contempt. On 19 May 1988 17 after receipt of respondent's Supplemental Motion for Reconsideration. 18 this Court in an extended per curiam Resolution 19 denied the Motion and Supplemental Motion for Reconsideration. That denial was made "final and immediately executory. Respondent Gonzalez has since then filed the following pleadings of record:
1. Manifestation with Supplemental Motion to Inhibition 20 dated 23 May 1988; 2. Motion to Transfer Administrative Proceedures to the Integrated Bar of the Philippines 21 dated 20 May 1988 3. Urgent Motion for Additional Extension of Time to File Explanation Ex Abundante Cautelam, 22dated 26 May 1988;

4. Urgent Ex-Parte Omnibus Motion (a) For Extension of Time (b) For Inhibition and
(c) For Transfer of Administrative Proceedings to the IBP, Under Rule 139-B 23 dated 4 June 1988 (with Annex "A;" May 1988 from the alleged Concerned Employees of the Supreme Court and addressed to respondent): 5. Ex-Parte Manifestation 25 dated 7 June 1988; 6. Urgent Ex-Parte Motion for Reconsideration 26 1988; and 7. Urgent Ex-Parte Manifestation with Motion 27 member 1988.
24

an anonymous letter dated 27

In compliance with the 2 May 1988 Resolution of this Court quoted earlier, respondent Gonzalez submitted on 17 June 1988 an Answer with Explanation and Comment 28 offering respondent's legal arguments and defenses against the contempt and disciplinary charges presently pending before this Court. Attached to that pleading as Annex "A" thereof was respondent's own personal Explanation/Compliance 29 second explanation called "Compliance," 30 with annexes, was also submitted by respondent on 22 July 1988. II We begin by referring to the authority of the Supreme Court to discipline officers of the court and members of the Bar. The Supreme Court, as regulator and guardian of the legal profession, has plenary disciplinary authority over attorneys. The authority to discipline lawyers stems from the Court's constitutional mandate to regulate admission to the practice of law, which includes as well authority to regulate the practice itself of law. 31 Quite apart from this constitutional mandate, the disciplinary authority of the Supreme Court over members of the Bar is an inherent power incidental to the proper administration of justice and essential to an orderly discharge of judicial functions. 32 Moreover, the Supreme Court has inherent power to punish for contempt, to control in the furtherance of justice the conduct of ministerial officers of the Court including lawyers and all other persons connected in any manner with a case before the Court. 33 The power to punish for contempt is "necessary for its own protection against an improper interference with the due administration of justice," "(it) is not dependent upon the complaint of any of the parties litigant. 34 There are, in other words, two (2) related powers which come into play in cases like that before us here; the Court's inherent power to discipline attorneys and the contempt power. The disciplinary authority of the Court over members of the Bar is broader than the power to punish for contempt. Contempt of court may be committee both by lawyers and non-lawyers, both in and out of court. Frequently, where the contemnor is a lawyer, the contumacious conduct also constitutes professional misconduct which calls into play the disciplinary authority of the Supreme Court. 35 Where the respondent is a lawyer, however, the Supreme Court's disciplinary authority over lawyers may come into play whether or not the misconduct with which the respondent is charged also constitutes contempt of court. The power to punish for contempt of court does not exhaust the scope of disciplinary authority of the Court over lawyers. 36 The disciplinary authority of the Court over members of the Bar is but corollary to the Court's exclusive power of admission to the Bar. A lawyer is not merely a professional but also an officer of the court and as such, he is called upon to share in the task and responsibility of dispensing justice and resolving disputes in society. Any act on his part which visibly tends to obstruct, pervert, or impede and degrade the administration of justice constitutes both professional misconduct calling for the exercise of disciplinary action against him, and contumacious conduct warranting application of the contempt power. It is sometimes asserted that in the exercise of the power to punish for contempt or of the disciplinary authority of the Court over members of the Bar, the Court is acting as offended party, prosecutor and arbiter at one and the same time. Thus, in the present case, respondent Gonzalez first sought to get some members of the Court to inhibit themselves in the resolution of this case for alleged bias and prejudice against him. A little later, he in effect asked the whole Court to inhibit itself from passing upon the issues involved in this proceeding and to pass on responsibility for this matter to the Integrated Bar of the Philippines, upon the ground that respondent cannot expect due process from this Court, that the Court has become incapable of judging him impartially and fairly. Respondent Gonzalez misconceives the nature of the proceeding at bar as well as the function of the members of the Court in such proceeding. Respondent's contention is scarcely an original one. In In Re Almacen, 37 then Associate (later Chief) Justice Fred Fruiz Castro had occasion to deal with this contention in the following lucid manner:

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xxx xxx xxx It is not accurate to say, nor is it an obstacle to the exercise of our authority in the premises, that, as Atty. Almacen would have it appear, the members of the Court are the 'complainants, prosecutors and judges' all rolled up into one in this instance. This is an utter misapprehension, if not a total distortion, not only of the nature of the proceeding at hand but also of our role therein. Accent should be laid on the fact that disciplinary proceedings like the present are sui generis. Neither purely civil nor purely criminal, this proceeding is notand does not involvea trial of an action or a suit, but is rather an investigation by the Court into the conduct of its officers. Not being intended to inflict punishment, it is in no sense a criminal prosecution. Accordingly, there is neither a plaintiff nor a prosecutor therein. It may be initiated by the Court motu proprio. Public interest is its primary objective, and the real question for determination is whether or not the attorney is still a fit person to be allowed the privileges as such. Hence, in the exercise of its disciplinary powers, the Court merely calls upon a member of the Bar to account for his actuations as an officer of the Court with the end in view of preserving the purity of the legal profession and the property and honest administration of justice by purging the profession of members who by their misconduct have proved themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an attorney. In such posture, there can thus be no occasion to speak of a complainant or a prosecutor. Undeniably, the members of the Court are, to a certain degree, aggrieved parties. Any tirade against the Court as a body is necessarily and inextricably as much so against the individual members thereof But in the exercise of its disciplinary powers, the Court acts as an entity separate and distinct from the individual personalities of its members. Consistently with the intrinsic nature of a collegiate court, the individual members act not as such individuals but only as a duly constituted court. The distinct individualities are lost in the majesty of their office. So that, in a very real sense, if there be any complainant in the case at bar, it can only be the Court itself, not the individual members thereofas well as the people themselveswhose rights, fortunes and properties, nay, even lives, would be placed at grave hazard should the administration of justice be threatened by the retention in the Bar of men unfit to discharge the solemn responsibilities of membership in the legal fraternity. Finally, the power to exclude persons from the practice of law is but a necessary incident of the power to admit persons to said practice. By constitutional precept, this power is vested exclusively in this Court. This duty it cannot abdicate just as much as it cannot unilaterally renounce jurisdiction legally invested upon it. So that even if it be conceded that the members collectively are in a sense the aggrieved parties, that fact alone does not and cannot disqualify them from the exercise of the power because public policy demands that they, acting as a Court, exercise the power in all cases which call for disciplinary action. The present is such a case. In the end, the imagined anomaly of the merger in one entity of the personalities of complainant, prosecutor and judge is absolutely inexistent.
xxx xxx xxx. 38

It should not be necessary for the members of this Court expressly to disclaim any bias or prejudice against the respondent that would prevent them from acting in accordance with the exacting requirements of their oaths of office. It also appears to the Court that for all the members to inhibit themselves from sitting on this case is to abdicate the responsibility with which the Constitution has burdened them. Reference of complaints against attorneys either to the Integrated Bar of the Philippines or to the Solicitor General is not mandatory upon the Supreme Court; such reference to the Integrated Bar of the Philippines or to the Solicitor General is certainly not an exclusive procedure under the terms of Rule 139-B of the Revised Rules of Court, especially where the charge consists of acts done before the Supreme Court. There is no need for further investigation of facts in the present case for it is not substantially disputed by respondent Gonzalez that he uttered or wrote certain statements attributed to him. In any case, respondent has had the amplest opportunity to present his defense; his defense is not that he did not make the statements ascribed to him but that those statements give rise to no liability on his part, having been made in the exercise of his freedom of speech. The issues which thus need to be resolved here are issues of law and of basic policy and the Court, not any other agency, is compelled to resolve such issues. III It is necessary to become very explicit as to what respondent Gonzalez was saying in his statements set out above. Respondent has not denied making the above statements; indeed, he acknowledges that the newspaper reports of the statements attributed to him are substantially correct. 39 Respondent Gonzalez was in effect saying, firstly, that the Supreme Court deliberately rendered an erroneous or wrong decision when it rendered its per curiam Decision dated 27 April 1988 in G.R. Nos. 79690-707 and 80578. That decision according to respondent Gonzalez, was issued as an act of retaliation by the Court against him for the position he had taken "that the (Supreme Court) Justices cannot claim immunity from suit or investigation by government prosecutors," and in order to stop respondent from investigating against "some of (the) proteges or friends (of some Supreme Court Justices)." The Court cannot, of course, and will not debate the correctness of its Decision of 27 April 1988 and of its Resolution dated 19 May 1988 (denying respondent Gonzalez Motion for Reconsideration) in the consolidated Zaldivar cases. Respondent Gonzalez, and anyone else for that matter, is free intellectually to accept or not to accept the reasoning of the Court set out in its per curiam Decision and Resolution in the consolidated Zaldivar cases. This should not, however, obscure the seriousness of the assault thus undertaken by respondent against the Court and the appalling implications of such assault for the integrity of the system of administration of justice in our country. Respondent has said that the Court rendered its Decision and Resolution without regard to the legal merits of the Zaldivar cases and had used the judicial process to impose private punishment upon respondent for positions he had taken (unrelated to the Zaldivar cases) in carrying out his duties. It is very difficult to imagine a more serious affront to, or a greater outrage upon, the honour and dignity of this Court than this. Respondent's statement is also totally baseless. Respondent's statements were made in complete disregard of the fact that his continuing authority to act as Tanodbayan or Ombudsman after the effectivity of the 1987 Constitution, had been questioned before this Court as early as 10 September 1987 in the Petition for Certiorari, Prohibition and mandamus filed against him in these consolidated Petitions 40 that is, more than seven (7) months before the Court rendered its Decision. Respondent also ignores the fact that one day later, this Court issued a Temporary Restraining Order effective immediately ordering the Sandiganbayan to cease and desist from hearing the criminal cases filed against petitioner Zaldivar by respondent Gonzalez. Respondent also disregards the fact that on 24 November 1987, upon the filing of a second Petition for certiorari for Prohibition by Mr. Zaldivar, the Court issued a Temporary Restraining Order this time requiring therespondent to cease and desist from further acting in TBP Case No. 87-0934. Thus, the decision finally reached by this Court in April 1988 on the constitutional law issue pending before the Court for the preceding eight (8) months, could scarcely have been invented as a reprisal simply against respondent.

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A second charge that respondent Gonzalez hurled against members of the Supreme Court is that they have improperly Id pressured" him to render decisions favorable to their "colleagues and friends," including dismissal of "cases" against two (2) members of the Court. This particularly deplorable charge too is entirely baseless, as even a cursory examination of the contents of the handwritten notes of three (3) members of this Court addressed to respondent (which respondent attached to his Motion for Reconsideration of the Decision of this Court of 27 April 1988 in the consolidated Petitions) win show. It is clear, and respondent Gonzalez does not pretend otherwise, that the subject matters of the said notes had no relation at all to the issues in G.R. Nos. 79690-707 and 80578. This charge appears to have been made in order to try to impart some substance (at least in the mind of respondent) to the first accusation made by respondent that the Court had deliberately rendered a wrong decision to get even with respondent who had, with great fortitude, resisted "pressure" from some members of the Court. Once again, in total effect, the statements made by respondent appear designed to cast the Court into gross disrepute, and to cause among the general public scorn for and distrust in the Supreme Court and, more generally, the judicial institutions of the Republic. Respondent Gonzalez has also asserted that the Court was preventing him from prosecuting "rich and powerful persons," that the Court was in effect discrimination between the rich and powerful on the one hand and the poor and defenseless upon the other, and allowing "rich and powerful" accused persons to go "scot-free" while presumably allowing or affirming the conviction of poor and small offenders. This accusation can only be regarded as calculated to present the Court in an extremely bad light. It may be seen as intended to foment hatred against the Supreme Court; it is also suggestive of the divisive tactics of revolutionary class war. Respondent, finally, assailed the Court for having allegedly "dismissed judges 'without rhyme or reason' and disbarred lawyers 'without due process.'" The Court notes that this last attack is not without relation to the other statements made by respondent against the Court. The total picture that respondent clearly was trying to paint of the Court is that of an "unjudicial" institution able and willing to render "clearly erroneous" decisions by way of reprisal against its critics, as a body that acts arbitrarily and capriciously denying judges and lawyers due process of law. Once again, the purport of respondent's attack against the Court as an institution unworthy of the people's faith and trust, is unmistakable. Had respondent undertaken to examine the records 'of the two (2) judges and the attorney he later Identified in one of his Explanations, he would have discovered that the respondents in those administrative cases had ample opportunity to explain their side and submit evidence in support thereof. 41 He would have also found that there were both strong reasons for and an insistent rhyme in the disciplinary measures there administered by the Court in the continuing effort to strengthen the judiciary and upgrade the membership of the Bar. It is appropriate to recall in this connection that due process as a constitutional precept does not, always and in all situations, require the trial-type proceeding, 42 that the essence of due process is to be found in the reasonable opportunity to be heard and to submit any evidence one may have in support of one's defense. 43 "To be heard" does not only mean verbal arguments in court; one may be heard also through pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial of procedural due process. 44 As noted earlier, respondent Gonzalez was required by the Court to explain why he should not be punished for contempt and/or subjected to administrative discipline for making the statements adverted to above. In his subsequent pleadings where he asked the full Court to inhibit itself and to transfer the administrative proceedings to the Integrated Bar of the Philippines, respondent made, among others, the following allegations: (a) That the Members of the Court "should inhibit [themselves] in the contempt and administrative charges against the respondent, in the light of the manifest prejudice and anger they hold against respondent as shown in the language of the resolution on the Motion for Reconsideration;" (b) That "the entire membership of the court has already lost that 'cold neutrality of an impartial judge' [to] be able to allow fairness and due process in the contempt citation as well as in the possible administrative charge; (c) That "respondent honestly feels that this court as angry and prejudiced as it is, respondent has no china man's chance to get fair hearing in the contempt and possible administrative charges;" (d) That one must consider "the milieu before this Tribunal with, perhaps passion and obfuscation running riot;" (e) That respondent, "after having been castigated with such venom by the entire Court in its decision denying the Motion for Reconsideration, does not have confidence in the impartiality of the entire Court" and that he "funds it extremely difficult to believe that the members of this Tribunal can still act with unbiased demeanor towards him;" and (f) That "the Tribunal is determined to disbar [respondent] without due process" and that a specified Member of the Court "has been tasked to be the ponente, or at least prepare the decision." (Underscoring in the original) Thus, instead of explaining or seeking to mitigate his statements earlier made, respondent sought to heap still more opprobrium upon the Court, accusing it of being incapable of judging his acts and statements justly and according to law. Once again, he paints this Court as a body not only capable of acting without regard to due process but indeed determined so to act. A grand design to hold up this Court to public scorn and disrespect as an unworthy tribunal, one obfuscated by passion and anger at respondent, emerges once more. It is very difficult for members of this Court to understand how respondent Gonzalez could suppose that judges on the highest tribunal of the land would be ready and willing to violate their most solemn oath of office merely to gratify any imagined private feelings aroused by respondent. The universe of the Court revolves around the daily demands of law and justice and duty, not around respondent nor any other person or group of persons. Whether or not the statements made by respondent Gonzalez may reasonably be regarded by this Court as contumacious or as warranting exercise of the disciplinary authority of this Court over members of the Bar, may best be assayed by examining samples of the kinds of statements which have been held in our jurisdiction as constituting contempt or otherwise warranting the exercise of the Court's authority. 1. In Montecillo v. Gica, 45 Atty. Quirico del Mar as counsel for Montecillo, who was accused in a slander case, moved to reconsider a decision of the Court of Appeals in favor of the complainant with a veiled threat that he should interpose his next appeal to the President of the Philippines. In his Motion for Reconsideration, he referred to the provisions of the Revised Penal Code on "knowingly rendering an unjust judgment," and "judgment rendered through negligence" and implied that the Court of Appeals had allowed itself to be deceived. Atty. del Mar was held guilty of contempt of court by the

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Court of Appeals. He then sued the three (3) justices of the Court of Appeals for damages before the Court of First Instance of Cebu, seeking to hold them liable for their decision in the appealed slander case. This suit was terminated, however, by compromise agreement after Atty. del Mar apologized to the Court of Appeals and the justices concerned and agreed to pay moral damages to the justices. Atty. del Mar some time later filed with this Court a Petition for Review on certiorari of a decision of the Court of Appeals in a slander case. This Court denied the Petition for Review. Atty. del Mar then filed a Motion for Reconsideration and addressed a letter to the Clerk of the Supreme Court asking for the names of the justices of this Court who had voted in favor of and those who had voted against his Motion for Reconsideration. After his Motion for Reconsideration was denied for lack of merit, Atty. del Mar filed a Manifestation in this Court saying: 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. (60 SCRA at 240;emphasis supplied) Counsel was asked to explain why he should not be administratively dealt with for making the above statements. In his additional explanation, Atty. del Mar made the following statements: ... 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 deficiencies. (60 SCRA at 242) The Court suspended Atty. del Mar, "until further orders," from the practice of law saying: ... 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 ... xxx xxx xxx 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. xxx xxx xxx. As already stated, the decision of the Court of Appeals in C.A 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 aid tribunals. It is manifest that respondent del Mar has scant respect for the two highest Court 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. xxx xxx xxx ... 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. (60 SCRA at 242-247: emphasis supplied) 2. In Surigao Mineral Reservation Board v. Cloribel, 46 four (4) members of the bar, acting as counsel for MacArthur International Minerals Company were required by this Court to explain certain statements made in MacArthur's third Motion for Reconsideration: d. ...; and I the Supreme Court I has overlooked the applicable law due to the mis-representation and obfuscation of the petitioners' counsel. (Last sentence, par. 1, Third Motion for Reconsideration dated Sept. 10, 1968). e. ... Never has any civilized democratic tribunal ruled that such a gimmick (referring to the "right to reject any and all bids") can be used by vulturous executives to cover up and excuse losses to the public, a government agency or just plain fraud ... and it is thus difficult, in the light of our upbringing and schooling, even under many of the incumbent justices, that the Honorable Supreme Court

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intends to create a decision that in effect does precisely that in a most absolute manner. (Second sentence, par. 7, Third Motion for Reconsideration dated Sept. 10, 1968). (31 SCRA at 6) They were also asked to explain the statements made in their Motion to Inhibit filed on 21 September 1968 asking Mr. Chief Justice Roberto Concepcion and Mr. Justice Fred Ruiz Castro to inhibit themselves from considering, judging and resolving the case or any issue or aspect thereof retroactive to January 11, 1967. The motion charges "It that the brother of the Honorable Associate Justice Castro is a vice-president of the favored party who is the chief beneficiary of the false, erroneous and illegal decision dated January 31, 1968" and the ex-parte preliminary injunction rendered in the above-entitled case, the latter in effect prejudging and predetermining this case even before the joining of an issue. As to the Chief Justice, the motion states [t]hat the son of the Honorable Chief Justice Roberto Concepcion was given a significant appointment in the Philippine Government by the President a short time before the decision of July 31, 1968 was rendered in this case. The appointment referred to was as secretary of the newly-created Board of Investments. The motion presents a lengthy discourse on judicial ethics, and makes a number of side comments projecting what is claimed to be the patent wrongfulness of the July 31, 1968 decision. It enumerates "incidents" which, according to the motion, brought about respondent MacArthur's belief that unjudicial prejudice had been caused it and that there was 'unjudicial favoritism' in favor of 'petitioners, their appointing authority and a favored party directly benefited by the said decision (31 SCRA at 6-7) Another attorney entered his appearance as new counsel for MacArthur and filed a fourth Motion for Reconsideration without leave of court, which Motion contained the following paragraphs: 4. The said decision is illegal because it was penned by the Honorable Chief Justice Roberto Concepcion when in fact he was outside the borders of the Republic of the Philippines at the time of the Oral Argument of the above-entitled casewhich condition is prohibited by the New Rules of CourtSection 1, Rule 51, and we quote: "Justices; who may take part... . Only those members present when any matter is submitted for oral argument will take part in its consideration and adjudication ... ." This requirement is especially significant in the present instance because the member who penned the decision was the very member who was absent for approximately four months or more. This provision also applies to the Honorable Justices Claudio Teehankee and Antonio Barredo. xxx xxx xxx 6. That if the respondent MacArthur International Minerals Company abandons its quest for justice in the Judiciary of the Philippine Government, it will inevitably either raise the graft and corruption of Philippine Government officials in the bidding of May 12, 1965, required by the Nickel Law to determine the operator of the Surigao nickel deposits, to the World Court on grounds of deprivation of justice and confiscation of property and/or to the United States Government, either its executive or judicial branches or both, on the grounds of confiscation of respondent's proprietary vested rights by the Philippine Government without either compensation or due process of law and invoking the Hickenlooper Amendment requiring the cutting off of all aid and benefits to the Philippine Government, including the sugar price premium, amounting to more than fifty million dollars annually, until restitution or compensation is made. (31 SCRA at 10-11) Finding their explanations unsatisfactory, the Court, speaking through Mr. Justice Sanchez, held three (3) attorneys guilty of contempt: 1. We start with the case of Atty. Vicente L. Santiago. In his third motion for reconsideration, we, indeed, find language that is not to be expected of an officer of the courts. He pictures petitioners as 'vulturous executives.' He speaks of this Court as a 'civilized, democratic tribunal,' but by innuendo would suggest that it is not. In his motion to inhibit, his first paragraph categorizes our decision of July 31, 1968 as 'false, erroneous and illegal' in a presumptuous manner. He then charges that the ex parte preliminary injunction we issued in this case prejudiced and predetermined the case even before the joining of an issue. He accuses in a reckless manner two justices of this Court for being interested in the decision of this case: Associate Justice Fred Ruiz Castro, because his brother is the vice president of the favored party who is the chief beneficiary of the decision, and Chief Justice Roberto Concepcion, whose son was appointed secretary of the newly-created Board of Investments, 'a significant appointment in the Philippine Government by the President, a short time before the decision of July 31, 1968 was rendered.' In this backdrop, he proceeds to state that 'it would seem that the principles thus established [the moral and ethical guidelines for inhibition of any judicial authority by the Honorable Supreme Court should first apply to itself.' He puts forth the claim that lesser and further removed conditions have been known to create favoritism, only to conclude that there is no reason for a belief that the conditions obtaining in the case of the Chief Justice and Justice Castro would be less likely to engender favoritism and prejudice for or against a particular cause or party.' Implicit in this at least is that the Chief Justice and Justice Castro are insensible to delicadeza, which could make their actuation suspect. He makes it plain in the motion that the Chief Justice and Justice Castro not only were not free from the appearance of impropriety but did arouse suspicion that their relationship did affect their judgment. He points out that courts must be above suspicion at all times like Ceasar's wife, warns that loss of confidence for the Tribunal or a member thereof should not be allowed to happen in our country, 'although the process has already begun. xxx xxx xxx What is disconcerting is that Atty. Santiago's accusations have no basis in fact and in law.The slur made is not limited to the Chief Justice and Mr. Justice Castro. It sweepingly casts aspersion on the whole court. For, inhibition is also asked if, we repeated any other justices who have received favors or benefits directly or indirectly from any of the petitioners or any members of any boardpetitioner or their agents or principals, including the president.'The absurdity of this posture is at once apparent. For one thing, the justices of this Court are appointed by the President and in that sense may be considered to have each received a favor from the

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President. Should these justices inhibit themselves every time a case involving the Administration crops up? Such a thought may not certainly be entertained. The consequence thereof would be to paralyze the machinery of this Court. We would in fact, be wreaking havoc on the tripartite system of government operating in this country. Counsel is presumed to know this. But why the unfounded charge? There is the not too-well concealed effort on the part of a losing litigant's attorney to downgrade this Court. The mischief that stems from all of the foregoing gross disrespect is easy to discern. Such disrespect detracts much from the dignity of a court of justice. Decidedly not an expression of faith, counsel's words are intended to create an atmosphere of distrust, of disbelief. xxx xxx xxx The precepts, the teachings, the injunctions just recited are not unfamiliar to lawyers. and yet, this Court finds in the language of Atty. Santiago a style that undermines and degrades the administration of justice. The stricture in Section 3 (d) of Rule 71 of the Rules against improper conduct tending to degrade the administration of justice is thus transgressed. Atty. Santiago is guilty of contempt of court. xxx xxx xxx Third. The motion contained an express threat to take the case to the World Court and/or the United States government. It must be remembered that respondent MacArthur at that time was still trying to overturn the decision of this Court of July 31, 1968. In doing so, unnecessary statements were in ejected. More specifically, the motion announced that McArthur 'will inevitably ... raise the graft and corruption of the Philippine government officials in the bidding of May 12, 1965 ... to the World Court' and would invoke 'the Hickenlooper Amendment requiring the cutting off of all aid and benefits to the Philippine Government, including the sugar price premium, amount to more than fifty million dollars annually ... This is a clear attempt to influence or bend the blind of this Court to decide the case' in its favor. A notice of appeal to the World Court has even been embodied in Meads return. There is a gross inconsistency between the appeal and the move to reconsider the decision. An appeal from a decision presupposes that a party has already abandoned any move to reconsider that decision. And yet, it would appear that the appeal to the World Court is being dangled as a threat to effect a change of the decision of this Court. Such act has no aboveboard explanation. xxx xxx xxx The dignity of the Court, experience teaches, can never be protected where infraction of ethics meets with complacency rather than punishment. The people should not be given cause to break faith with the belief that a judge is the epitome of honor amongst men. To preserve its dignity, a court of justice should not yield to the assaults of disrespect. Punctilio of honor, we prefer to think, is a standard of behavior so desirable in a lawyer pleading a cause before a court of justice. (31 SCRA at 13-23; emphasis supplied) 3. In In re Almacen, supra, Atty. Vicente Raul Almacen, in protest against what he asserted was "a great injustice committed against his client by the Supreme Court," filed a Petition to Surrender Lawyer's Certificate of Title. He alleged that his client was deeply aggrieved by this Court's "unjust judgment," and had become "one of the sacrificial victims before the altar of hypocrisy," saying that "justice as administered by the present members of the Supreme Court [was) not only blind, but also deaf and dumb." Atty. Almacen vowed to argue the cause of his client "in the people's forum" so that "the people may know of this silent injustice committed by this Court' and that "whatever mistakes, wrongs and injustices that were committed [may] never be repeated." Atty. Almacen released to the press the contents of his Petition and on 26 September 1967, the "Manila Times" published statements attributed to him as follows: Vicente Raul Almacen, in an unprecedented petition, said he did not expose the tribunal's'unconstitutional and obnoxious' practice of arbitrarily denying petitions or appeals without any reason. Because of the tribunal's 'short-cut justice.' Almacen deplored, his client was condemned to pay P120,000, without knowing why he lost the case. xxx xxx xxx There is no use continuing his law practice, Almacen said in this petition, 'where our Supreme Court is composed of men who are calloused to our pleas of justice, who ignore without reason their own applicable decisions and commit culpable violations of the Constitution with impunity.' xxx xxx xxx He expressed the hope that by divesting himself of his title by which he earns his living, the present members of the Supreme Court 'will become responsible to all cases brought to its attention without discrimination, and will purge itself of those unconstitutional and obnoxious "lack of merit' or "denied resolutions. (31 SCRA at 565566; emphasis supplied) Atty. Almacen was required by this Court to show cause why disciplinary action should not be taken against him. His explanation, which in part read: xxx xxx xxx

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The phrase, Justice is blind is symbolized in paintings that can be found in all courts and government offices. We have added only two more symbols, that it is also deaf and dumb. Deaf in the sense that no members of this Court has ever heard our cries for charity, generosity, fairness, understanding, sympathy and for justice; dumb in the sense, that inspire of our beggings, supplications, and pleadings to give us reasons why our appeals has been DENIED, not one word was spoken or given ... We refer to no human defect or ailment in the above statement. We only described the impersonal state of Things and nothing more. xxx xxx xxx As we have stated, we have lost our faith and confidence in the members of this Court and for which reason we offered to surrender our lawyer's certificate, IN TRUST ONLY. Because what has been lost today may be regained tomorrow. As the offer was intended as our self-imposed sacrifice, then we alone may decide as to when we must end our self- sacrifice. If we have to choose between forcing ourselves to have faith and confidence in the members of the Court but disregard our Constitution and to uphold the Constitution and be condemned by the members of this Court, there is no choice, we must uphold the latter. (31 SCRA at 572; emphasis supplied) was found by the Court to be "undignified and cynical" and rejected. The Court indefinitely suspended Almacen from the practice of law holding, through Mr. Justice Fred Ruiz Castro, that Almacen had exceeded the boundaries of "fair criticism." 4. In Paragas V. Cruz, 47 Counsel, whose Petition for Ceriorari ran was dismissed by this Court, made the following statements in his Motion for Reconsideration: The petitioner respectfully prays for a reconsideration of the resolution of this Honorable Court dated April 20,1966 on the ground that it constitutes a violation of Section 14 of Rule 11 2 of the Rules of Court promulgated by this very Hon. Supreme Court, and on the further ground that it is likewise a violation of the most important right in the Bill of Rights of the Constitution of the Philippines, a culpable violation which is a ground for impeachment. ... The rule of law in a democracy should always be upheld and protected by all means, because the rule of law creates and preserves peace and order and gives satisfaction and contentment to all concerned. But when the laws and the rules are violated, the victims resort, sometimes, to armed force and to the ways of the cavemen We do not want Verzosa and Reyes repeated again and again, killed in the premises of the Supreme Court and in those of the City Hall of Manila. Educated people should keep their temper under control at all times! But justice should be done to all concerned to perpetuate the very life of Democracy on the face of the earth. (14 SCRA at 810; emphasis supplied) The Court considered the above statements as derogatory to the dignity of the Court and required counsel to show cause why administrative action should not be taken against him. Counsel later explained that he had merely related factual events (i.e., the killing of Verzosa and Reyes) and to express his desire to avoid repetition of such acts. The Court, through Mr. Justice J.B.L. Reyes, found these explanations unsatisfactory and the above statements contumacious. ... The expressions contained in the motion for reconsideration ... are plainly contemptuous and disrespectful, and reference to the recent killing of two employees is but a covert threat upon the members of the Court. ... That such threats and disrespectful language contained in a pleading filed in courts are constitutive of direct contempt has been repeatedly decided(Salcedo vs. Hernandez, 61 Phil. 724; People vs. Venturanza, 52 Off. Gaz. 769; Medina vs. Rivera, 66 Phil. 151; De Joya vs. Court of First Instance of Rizal, 1, 9785, September 19,1956; Sison vs. Sandejas L- 9270, April 29,1959; Lualhati vs. Albert, 57 Phil. 86). What makes the present case more deplorable is that the guilty party is a member of the bar; for, as remarked in People vs. Carillo, 77 Phil. 580Counsel should conduct himself towards the judges who try his cases with that courtesy all have a right to expect. As an officer of the court, it is his sworn and moral duty to help build and not destroy unnecessarily that high esteem and regard towards the courts so essential to the proper administration of justice. It in light and plausible that an attorney in defending the cause and rights of his client, should do so with all the fervor and energy of which he is capable, but it is not, and never will be so, for him to exercise said right by resorting to intimidation or proceeding without the propriety and respect which the dignity of the courts require. (Salcedo vs. Hernandez, [In re Francisco], 61 Phil. 729)' (1 4 SCRA at 811-812; emphasis supplied) 5. In In re Sotto, 48 a newspaper reporter, Mr. Angel Parazo, invoking the Press Freedom Law, refused to divulge the source of the news item which carried his by-line and was sent to jail for so refusing. Atty. Vicente Sotto, a senator and author of said law, caused the publication of the following item in a number of daily newspapers in Manila: As author of the Press Freedom Law (Republic Act No. 53), interpreted by the Supreme Court in the case of Angel Parazo, reporter of a local daily, who now has to suffer 30 days imprisonment, for his refusal to divulge the source of a news published in his paper, I regret to say that our High Tribunal has not only erroneously interpreted said law, but that it is once more putting in evidence the incompetency or narrow mindedness of the majority of its members. In the wake of so many blunders and injustices deliberately committed during these last years, I believe that the only remedy to put an end to so much evil, is to change the members of the Supreme Court. To this effect, I announce that one of the first measures, which I will introduce in the coming congressional sessions, will have as its object the complete reorganization of the Supreme Court. As it is now constituted, the Supreme Court of today constitutes a constant peril to liberty and democracy. It need be said loudly, very loudly, so that even the deaf may hear: The Supreme Court of today is a far cry from the impregnable bulwark of Justice of those memorable times of Cayetano Arellano, Victorino Mapa, Manuel Araullo and other learned jurists who were the honor and glory of the Philippine Judiciary. (82 Phil. at 597598; emphasis supplied)

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In finding Atty. Sotto in contempt, despite his avowals of good faith and his invocation of the constitutional guarantee of free speech and in requiring him to show cause why he should not be disbarred, the Court, through Mr. Justice Feria, saidTo hurl the false charge that this Court has been for the last years committing deliberately so many blunders and injustices that is to say, that it has been deciding in favor of one party knowing that the law and justice is on the part of the adverse party and not on the one in whose favor the decision was rendered, in many cases decided during the last years, would tend necessarily to undermine the coincidence of the people in the honesty and integrity of the members of this Court, and consequently to lower and degrade the administration of justice by this Court. The Supreme Court of the Philippines is, under the Constitution, the last bulwark to which the Filipino people may repair to obtain relief for their grievances or protection of their rights when these are trampled upon, and if the people lose their confidence in the honesty and integrity of the members of this Court and believe that they cannot expect justice therefrom, they might be driven to take the law into their hands, and disorder and perhaps chaos might be the result. As a member of the bar and an officer of the courts Atty. Vicente Sotto, like any other, is in duty bound to uphold the dignity and authority of this Court, to which he owes fidelity according to the oath he has taken as such attorney, and not to promote distrust in the administration of justice. Respect to the courts guarantees the stability of other institutions, which without such guaranty would be resting on a very shaky foundation. (82 Phil. at 601-602; emphasis supplied) 6. In Salcedo v. Hernandez, 49 Atty. Vicente Francisco filed a Motion before the Supreme Court which contained the following paragraph (in translation): We should like frankly and respectfully to make it of record that the resolution of this court, denying our motion for reconsideration, is absolutely erroneous and constitutes an outrage to the rights of the petitioner Felipe Salcedo and a mockery of the popular will expressed at the polls in the municipality of Tiaong, Tayabas. We wish to exhaust all the means within our power in order that this error may be corrected by the very court which has committed it, because we should not want that some citizen, particularly some voter of the municipality of Tiaong, Tayabas, resort to the press publicly to denounce, as he has a right to do, thejudicial outrage of which the herein petitioner has been the victim, and because it is our utmost desire to safeguard the prestige of this honorable court and of each and every member thereof in the eyes of the public. But, at the same time we wish to state sincerely that erroneous decisions like these, which the affected party and his thousands of voters will necessarily consider unjust, increase the proselytes of sakdalism and make the public lose confidence in the administration of justice. (61 Phil. at 726; emphasis supplied) When required by the Court to show cause why he should not be declared in contempt, Atty. Francisco responded by saying that it was not contempt to tell the truth. Examining the statements made above, the Court held: ... [they] disclose, in the opinion of this court, an inexcusable disrespect of the authority of the court and an intentional contempt of its dignity, because the court is thereby charged with no less than having proceeded in utter disregard of the laws, the rights of the parties, and of the untoward consequences, or with having abused its power and mocked and flouted the rights of Attorney Vicente J. Francisco's client, because the acts of outraging and mocking from which the words 'outrage' and mockery' used therein are derived, means exactly the same as all these, according to the Dictionary of the Spanish Language published by the Spanish Academy (Dictionary of the Spanish Language, 15th ed., pages 132-513). The insertion of the phrases in question in said motion of Attorney Vicente J. Francisco, for many years a member of the Philippine bar, was neither justified nor in the least necessary, because in order to call the attention of the court in a special way to the essential points relied upon in his argument and to emphasize the force thereof, the many reasons stated in his said motion were sufficient and the phrases in question were superfluous. In order to appeal to reason and justice, it is highly improper and amiss to make trouble and resort to threats, as Attorney Vicente J. Francisco has done, because both means are annoying and good practice can ever sanction them by reason of their natural tendency to disturb and hinder the free exercise of a serene and impartial judgment, particularly in judicial matters, in the consideration of questions submitted for resolution. There is no question that said paragraph of Attorney Vicente J. Francisco's motion contains a more or less veiled threat to the court because it is insinuated therein, after the author shows the course which the voters of Tiaong should follow in case he fails in his attempt, that they will resort to the press for the purpose of denouncing, what he claims to be a judicial outrage of which his client has been the victim; and because he states in a threatening manner with the intention of predisposing the mind of the reader against the court, thus creating an atmosphere of prejudices against it in order to make it odious in the public eye, that decisions of the nature of that referred to in his motion to promote distrust in the administration of justice and increase the proselytes of sakdalism a movement with seditious and revolutionary tendencies the activities of which, as is of public knowledge, occurred in this country a few days ago. This cannot mean otherwise than contempt of the dignity of the court and disrespect of the authority thereof on the part of Attorney Vicente J. Francisco, because he presumes that the court is so devoid of the sense of justice that, if he did not resort to intimidation, it would maintain its error notwithstanding the fact that it may be proven, with good reasons, that it has acted erroneously. As a member of the bar and an officer of this court, Attorney Vicente J. Francisco, as any attorney, is in duty bound to uphold its dignity and authority and to defend its integrity, not only because it had conferred upon him the high privilege, not a right (Malcolm, Legal Ethics, 158 and 160), of being what he now is: a priest of justice (In re Thatcher, 80 Ohio St., Rep., 492, 669), but also because in so doing, he neither creates nor promotes distrust in the administration of justice, and prevents anybody from harboring and encouraging discontent which, in many cases, is the source of disorder, thus undermining the foundation upon which rests that bulwark called judicial power to which those who are aggrieved turn for protection and relief (61 Phil. at 727-728; emphasis supplied) It should not be supposed that the six (6) cases above discussed exhaust our case law on this matter. In the following cases, among others, the Supreme Court punished for contempt or administratively disciplined lawyers who had made statements not very different from those made in the cases discussed above: 1) In re Wenceslao Laureta, 148 SCRA 382 (1987);

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2) Borromeo v. Court of appeals, 87 SCRA 67 (1978); 3) Rheem of the Philippines v. Ferrer, 20 SCRA 441 (1967); 4) Malolos v. Reyes, 1 SCRA 559 (1961); 5) De Joya, et al. v. Court of First Instance of Rizal, Pasay City Branch, 99 Phil. 907 (1956); 6) People v. Venturanza, et al., 98 Phil. 211 (1956); 7) In re Suzano A. Velasquez, per curiam Resolution (unreported), Promulgated 29 April 1955; 8) Cornejo v. Tan, 85 Phil. 772 (1950); 9) People v. Carillon, 77 Phil. 572 (1946); 10) Intestate Estate of Rosario 0lba; Contempt Proceedings against Antonio Franco, 67 Phil. 312 (1939); and 11) Lualhati v. Albert, 57 Phil. 86 (1932). Considering the kinds of statements of lawyers discussed above which the Court has in the past penalized as contemptuous or as warranting application of disciplinary sanctions, this Court is compelled to hold that the statements here made by respondent Gonzalez clearly constitute contempt and call for the exercise of the disciplinary authority of the Supreme Court. Respondent's statements, especially the charge that the Court deliberately rendered an erroneous and unjust decision in the Consolidated Petitions, necessarily implying that the justices of this Court betrayed their oath of office, merely to wreak vengeance upon the respondent here, constitute the grossest kind of disrespect for the Court. Such statements very clearly debase and degrade the Supreme Court and, through the Court, the entire system of administration of justice in the country. That respondent's baseless charges have had some impact outside the internal world of subjective intent, is clearly demonstrated by the filing of a complaint for impeachment of thirteen (13) out of the then fourteen (14) incumbent members of this Court, a complaint the centerpiece of which is a repetition of the appalling claim of respondent that this Court deliberately rendered a wrong decision as an act of reprisal against the respondent. IV The principal defense of respondent Gonzalez is that he was merely exercising his constitutional right of free speech. He also invokes the related doctrines of qualified privileged communications and fair criticism in the public interest. Respondent Gonzalez is entitled to the constitutional guarantee of free speech. No one seeks to deny him that right, least of all this Court. What respondent seems unaware of is that freedom of speech and of expression, like all constitutional freedoms, is not absolute and that freedom of expression needs on occasion to be adjusted to and accommodated with the requirements of equally important public interests. One of these fundamental public interests is the maintenance of the integrity and orderly functioning of the administration of justice. There is no antinomy between free expression and the integrity of the system of administering justice. For the protection and maintenance of freedom of expression itself can be secured only within the context of a functioning and orderly system of dispensing justice, within the context, in other words, of viable independent institutions for delivery of justice which are accepted by the general community. As Mr. Justice Frankfurter put it:
... A free press is not to be preferred to an independent judiciary, nor an independent judiciary to a free press. Neither has primacy over the other; both are indispensable to a free society. The freedom of the press in itself presupposes an independent judiciary through which that freedom may, if necessary be vindicated. And one of the potent means for assuring judges their independence is a free press. 50

Mr. Justice Malcolm of this Court expressed the same thought in the following terms:
The Organic Act wisely guarantees freedom of speech and press. This constitutional right must be protected in its fullest extent. The Court has heretofore given evidence of its tolerant regard for charges under the Libel Law which come dangerously close to its violation. We shall continue in this chosen path. The liberty of the citizens must be preserved in all of its completeness. But license or abuse of liberty of the press and of the citizens should not be confused with liberty ill its true sense. As important as is the maintenance of an unmuzzled press and the free exercise of the rights of the citizens is the maintenance of the independence of the Judiciary. Respect for the Judiciary cannot be had if persons are privileged to scorn a resolution of the court adopted for good purposes, and if such persons are to be permitted by subterranean means to diffuse inaccurate accounts of confidential proceedings to the embarassment of the parties and the courts. 51 (Emphasis supplied)

Only slightly (if at all) less important is the public interest in the capacity of the Court effectively to prevent and control professional misconduct on the part of lawyers who are, first and foremost, indispensable participants in the task of rendering justice to every man. Some courts have held, persuasively it appears to us, that a lawyer's right of free expression may have to be more limited than that of a layman. 52 It is well to recall that respondent Gonzalez, apart from being a lawyer and an officer of the court, is also a Special Prosecutor who owes duties of fidelity and respect to the Republic and to this Court as the embodiment and the repository of the judicial power in the government of the Republic. The responsibility of the respondent "to uphold the dignity and authority of this Court' and "not to promote distrust in the administration of justice 53 is heavier than that of a private practicing lawyer.

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Respondent Gonzalez claims to be and he is, of course, entitled to criticize the rulings of this Court, to point out where he feels the Court may have lapsed into error. Once more, however, the right of criticism is not unlimited. Its limits were marked out by Mr. Justice Castro in In re Almacen which are worth noting But it is the cardinal condition of all such criticism that it shall be bonafide and shall not spill over the walls of decency and propriety. A wide chasm exists between fair criticism, on the one hand, and abuse and slander of courts and the judges thereof, on the other.Intemperate and unfair criticism is a gross violation of the duty of respect to courts. It is such a misconduct that subjects a lawyer to disciplinary action. The lawyer's duty to render respectful subordination to the courts is essential to the orderly administration of justice. Hence, in the assertion of their clients' rights, lawyers even those gifted with superior intellect are enjoined to rein up their tempers.
xxx xxx xxx 54

(Emphasis supplied) The instant proceeding is not addressed to the fact that respondent has criticized the Court; it is addressed rather to the nature of that criticism or comment and the manner in which it was carried out. Respondent Gonzalez disclaims an intent to attack and denigrate the Court. The subjectivities of the respondent are irrelevant so far as characterization of his conduct or misconduct is concerned. He will not, however, be allowed to disclaim the natural and plain import of his words and acts. 55 It is upon the other hand, not irrelevant to point out that respondent offered no apology in his two (2) explanations and exhibited no repentance. 56 Respondent Gonzalez also defends himself contending that no injury to the judiciary has been shown, and points to the fact that this Court denied his Motion for Reconsideration of its per curiam Decision of 27 April 1988 and reiterated and amplified that Decision in its Resolution of 19 May 1988. In the first place, proof of actual damage sustained by a court or the judiciary in general is not essential for a finding of contempt or for the application of the disciplinary authority of the Court. Insofar as the Consolidated Petitions are concerned, this Court after careful review of the bases of its 27 April 1988 Decision, denied respondent's Motion for Reconsideration thereof and rejected the public pressures brought to bear upon this Court by the respondent through his much publicized acts and statements for which he is here being required to account. Obstructing the free and undisturbed resolution of a particular case is not the only species of injury that the Court has a right and a duty to prevent and redress. What is at stake in cases of this kind is the integrity of the judicial institutions of the country in general and of the Supreme Court in particular. Damage to such institutions might not be quantifiable at a given moment in time but damage there will surely be if acts like those of respondent Gonzalez are not effectively stopped and countered. The level of trust and confidence of the general public in the courts, including the court of last resort, is not easily measured; but few will dispute that a high level of such trust and confidence is critical for the stability of democratic government. Respondent Gonzalez lastly suggests that punishment for contempt is not the proper remedy in this case and suggests that the members of this Court have recourse to libel suits against him. While the remedy of libel suits by individual members of this Court may well be available against respondent Gonzalez, such is by no means an exclusive remedy. Moreover, where, as in the instant case, it is not only the individual members of the Court but the Court itself as an institution that has been falsely attacked, libel suits cannot be an adequate remedy. 57 The Court concludes that respondent Gonzalez is guilty both of contempt of court in facie curiae and of gross misconduct as an officer of the court and member of the Bar. ACCORDINGLY, the Court Resolved to SUSPEND Atty. Raul M. Gonzalez from the practice of law indefinitely and until further orders from this Court, the suspension to take effect immediately. Let copies of this Resolution be furnished the Sandiganbayan, the Ombudsman, the Secretary of Justice, the Solicitor General and the Court of Appeals for their information and guidance. Fernan C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.