EDWINO A. TORRES (deceased), represented and substituted by ALFONSO P. TORRES III and FATIMA P.

TORRES, son and daughter, respectively, of deceased petitioner, Vs. BALLIGI V. RODELLAS, Respondent. [G. R. No. 177836, September 4, 2009] DECISION CHICO-NAZARIO, J.: This Petition for Review on Certiorari,[1] under Rule 45 of the Revised Rules of Court, seeks the review of the 29 November 2006[2] and 2 May 2007[3] Resolutions of the Court of Appeals in CA-G.R. SP No. 81305, entitled Edwino A. Torres (deceased) represented and substituted by Alfonso P. Torres III, Fatima P. Torres, son and daughter of deceased petitioner, which, respectively, dismissed the petition assailing the decision of the Office of the President, and denied the subsequent motion for reconsideration thereof. The root of the present controversy is a 111-square meter parcel of alienable and disposable residential land, described as Lot No. 4, Sgs-04-000316-D, located at Poblacion, San Jose, Occidental Mindoro (subject property). Respondent Balligi V. Rodellas (Balligi) and her family began occupying the subject property sometime in 1967. They built thereon a residential house (the Rodellas house), initially made of light materials, but eventually renovated and replaced using stronger materials. In October 1986, Balligi filed a Miscellaneous Sales Application (MSA) for the subject property with the Department of Environment and Natural Resources (DENR). Said application was docketed as MSA No. (IV-18) 3524. In 1989, Balligi and her family left Occidental Mindoro for Manila in order to find work. On 1 October 1989, Balligi left the country to join her husband in Saudi Arabia as an Overseas Filipino Worker (OFW). In the meantime, the house built by Balligi and her family on the subject property was left in the care and possession of her relatives, namely, her half-brother, Aster Vallejos; her sister, Bituin Vallejos; her cousin-in-law, Sonia Jaravata; her sister and brother-in-law, spouses Inanama Vallejos (Inanama) and Oscar Gallardo; Milagros Olarte; and Ildefonso Ruiz and family. Sometime thereafter, still in 1989, petitioner Edwino A. Torres (Edwino) and his spouse moved into the house on the subject property, occupying the portion vacated by Aster Vallejos. Edwino claimed that Balligi already sold him the subject property and the house built thereon for P60,000.00, as evidenced by an Affidavit of Relinquishment/Sale of Right supposedly signed by the parties thereto and notarized on 9 October 1989. From that time on, Edwino collected monthly rental of P300.00 from the other occupants of the house. On the basis of the Affidavit of Relinquishment/Sale of Right, Edwino filed with the DENR an MSA in his own name for the subject property, docketed as MSA No. (IV-18) 3780. After conducting an investigation and ocular inspection, Wilfredo M. Paguia, Land Investigator, DENR, issued a Report on 10 June 1991, recommending that Edwinos MSA be given due course. On 15 July 1991, the Provincial Environment and Natural Resources Officer (PENRO) issued an Order 1) rejecting Balligis MSA No. (IV-18) 3524; and 2) giving due course to Edwinos MSA No.(IV-18) 3780. In 1992, respondent Balligis son, Eugenio V. Rodellas, Jr. (Eugenio), returned to Occidental Mindoro. While there, he came to learn that Edwino claimed ownership of the subject property and the house thereon by virtue of the Affidavit of Relinquishment/Sale of Right.

On 8 December 1992, Eugenio, alleging to act on behalf of his mother, Balligi, but without presenting any written authority from the latter, filed before the Community Environment and Natural Resources Office (CENRO), San Jose, Occidental Mindoro, a Protest against Edwinos MSA No. (IV-18) 3780. Eugenio prayed, inter alia, for the cancellation of said MSA on the ground that the Affidavit of Relinquishment/Sale of Right, the very basis of the application, was a forged document. Eugenio insisted that Balligi never entered into any sale of the subject property and house, much less signed the purported Affidavit of Relinquishment/Sale of Right on 9 October 1989, considering that Balligi and her husband were in Saudi Arabia at that time. Eugenios Opposition to Edwinos MSA was docketed as DENR Case No. 5438. On 8 March 1993, Eugenio and his aunt, Inanama, filed an Amended Protest against Edwinos MSA No. (IV-18) 3780. Attached to the Amended Protest was a Special Power of Attorney, which Balligi executed in favor of Eugenio and Inanama, and acknowledged before Vice Consul Alimatar M. Garangan, Philippine Embassy, Riyadh, Kingdomof Saudi Arabia in January 1993. In an Order[4] dated 4 June 1993, Antonio G. Principe, Regional Executive Director, Regional Office (RO) No. IV, DENR, dismissed the protests against Edwinos MSA No. (IV-18) 3780 for lack of merit, to wit: WHEREFORE, in view of the foregoing, the Protest as well as the Amended Protest is (sic) hereby as it is ordered DISMISSED for lack of merit and whatever amount paid on account thereof is forfeited in favor of the government. The MSA No. (IV-18) 3780 of Edwino A. Torres is hereby given further due course.

According to DENR-RO No. IV, neither Eugenio nor Inanama had the personality to represent Balligi. It credited no value to the Special Power of Attorney in favor of Eugenio and Inanama, as the document itself was highly questionable. Close scrutiny of the same shows that the authentication was done on the 25th day of January 1993 [even] before the execution of the said document by Balligi Letty V. Rodellas on January 26, 1993.[5] DENR-RO No. IV also mentioned in its Order that it was not in a position to determine and resolve the genuineness and due execution of the Affidavit of Relinquishment/Sale of Right presented by Edwino, the same being within the jurisdiction of the courts. On 21 June 1993, Balligi, still through her son, Eugenio, filed a Request for Extension of Time to file a motion for reconsideration of the 4 January 1993 Order of DENR-RO No. IV. However, DENR- RO No. IV, in an Order dated 10 September 1993, denied Balligis request for extension, because it was supposedly filed beyond the 15-day reglementary period within which to appeal the assailed order. The dispositive portion of the 10 September 1993 Order reads: WHEREFORE, in view of the foregoing premises, the Motion for Reconsideration dated June 21, 1993 filed by herein [petitioner Balligi], represented by Eugenio V. Rodellas, Jr. and Inanama V. Gallardo, is hereby as it is ordered DENIED for lack of merit. Consequently thereto, the Order dated June 4, 1993 issued in the aboveentitled case is deemed final and executory.[6]

Determined, respondent Balligi, who had arrived back in the Philippines, herself filed, on 15 April 1994, another Opposition/Protest against petitioner Edwinos MSA No.(IV-18) 3780.

On 6 June 1994, another Order was issued by the DENR-RO No. IV directing the conduct of an investigation of the matters alleged in Balligis Opposition/Protest; and holding the processing of Edwinos MSA No. (IV-18) 3780 in abeyance. After an evaluation of the record of the case, DENR-RO No. IV dismissed respondent Balligis Opposition/Protest in an Order dated 13 December 1995, the fallo of which states: WHEREFORE, premises considered, the instant OPPOSITION AND/OR PROTEST filed by Balligi V. Rodellas is hereby, as it is ordered, DISMISSED for lack of merit. Let the MSA No. (IV-18) 3780 of Edwino A. Torres be now given further due course leading to the issuance of patent therefor.[7]

Citing its 10 September 1993 Order, DENR-RO Balligis Opposition/Protest was barred by res judicata.

No.

IV

reasoned

that

Balligi moved for the reconsideration of the Order dated 13 December 1995 of DENRRO No. IV before the Office of the DENR Secretary. Her Motion for Reconsideration, docketed as DENR Case No. 7771, was denied by the DENR Secretary in an Order[8] dated 29 June 1998. The DENR Secretary held that there is no showing that she, [herein respondent Balligi] Rodellas, ever filed a complaint with the proper forum, i.e., the Court, against the herein [petitioner Edwino] involving the alleged falsified and spurious document. Mere allegation that such document is spurious and forged do not make such document spurious and a forger y.[9] Undaunted, Balligi filed an appeal with the Office of the President, docketed as O.P. Case No. 98-8537. In a Decision[10] promulgated on 5 August 2003, the Office of the President reversed and set aside the assailed orders of the DENR Secretary and the DENR-RO No. IV. The Office of the President adjudged that the principle of res judicata was not applicable to the facts of O.P. Case No. 98-8537, given that: A careful review of the order of June 4, 1993, which the DENR claims constitutes a bar to subsequent litigation, would reveal that the same does not comply with the third requisite enumerated above, that the judgment must be on the merits. It will be recalled that the Regional Executive Director (RED) refused to rule on the main issue raised in the protest, which is the alleged forged and spurious Affidavit of Relinquishment/Sale of Right, claiming that his Office is not in the position to determine and resolve the genuineness and due execution of the aforesaid document; and claiming further that the said protest should not have been entertained in the first place considering that upon its filing, Eugenio V. Rodellas Jr. has no personality to represent Balligi V. Rodellas. The Office of the President opined that the DENR should have applied res ipsa loquitur instead, since: It should have been very clear that the alleged Affidavit of Relinquishment/Sale of Right is nothing but a forgery. [Respondent Balligi] was in the Kingdom of Saudi Arabia at the time she was supposed to have executed the document, as duly evidenced by the entries in her passport. She left the Philippines on October 1, 1989, while the Affidavit is dated October 9, 1989 x x x. In fact, at the inception of the case, she was still there in Saudi Arabia, which was why the RED did not want to recognize the legal personality of her son to represent her. If the DENR knew that appellant was out of the country all along, how can it even entertain the thought that she was the one who signed the

document in Occidental Mindoro? It is important to note that [Edwino] never questioned the veracity of the entries in [Balligi]s passport.[11]

The Office of the President disposed: WHEREFORE, the decision of the Acting Secretary of Environment and Natural Resources dated September 19, 1997, and the order dated June 29, 1998, reiterating it, are hereby REVERSED and SET ASIDE. The Department of Environment and Natural Resources is hereby ordered to reject the Miscellaneous Sales Application No. (IV-18) 3780 of Edwino A. Torres and reinstate Miscellaneous Sales Application No. (IV-18) 3524 of Balligi V. Rodellas, and give due course thereto. All persons occupying the subject property by virtue of the Miscellaneous Sales Application of Edwino A. Torres, his heirs and assigns, are hereby ordered to vacate the same.[12] Atty. Alexander Restor (Atty. Restor), Edwinos counsel, received a copy of the 5 August 2003 Decision of the Office of the President on 29 August 2003. On 15 September 2003, Atty. Restor filed a Motion for Reconsideration of said Decision, and at the same time, manifested that his client, Edwino, had since passed away, but without actually intimating the exact date of the latters death. In an Order dated 27 October 2003, the Office of the President ruled that the Motion for Reconsideration filed by Atty. Restor was DISMISSED for being filed out of time and for lack of personality of the movant.[13] According to the Office of the President, Ewinos death extinguished his agency relationship with Atty. Restor. Hence, Atty. Restor had no more authority to continue to act on Edwinos behalf. In addition, the Motion for Reconsideration was filed by Atty. Restor beyond the 15-day reglementary period. On 16 November 2003, Edwinos representatives and legal heirs executed a Letter of Appointment[14] [appointing] and [engaging] the legal services of Atty. Alexander Restor in O.P. Case No. 988537 before the Office of the President and to further represent [them] in the event that the afore-mentioned case is appealed to the Court of Appeals/Supreme Court. Subsequently, on 9 December 2003, Atty. Restor filed, on behalf of Edwino, represented and substituted by the latters son and daughter, Alfonso P. Torres III (Alfonso) and Fatima P. Torres (Fatima), respectively, a Petition for Review with the Court of Appeals, challenging the 5 August 2003 Decision and 27 October 2003 Order of the Office of the President. Their Petition was docketed as CA-G.R. SP No. 81305. In a Resolution promulgated on 29 November 2006, the appellate court dismissed the Petition in CA-G.R. SP No. 81305, thus: IN VIEW OF THE FOREGOING, the petition is hereby DISMISSED.[15]

The Court of Appeals affirmed the finding of the Office of the President that the 5 August 2003 Decision of the latter had long since attained finality in view of the late filing of Edwinos Motion for Reconsideration of the same. Moreover, the appellate court agreed that Atty. Restor had no personality to move for the reconsideration of the decision in question, and as a result,

no motion for reconsideration of the August 5, 2003 Decision of the Office of the President could have been considered filed.[16] As expected, Alfonso and Fatima filed a Motion for Reconsideration of the 29 November 2006 Resolution of the Court of Appeals, arguing therein that Atty. Restor had timely filed the Motion for Reconsideration of the 5 August 2003 Decision of the Office of the President. Atty. Restor received a copy of the challenged Decision of the Office of the President on 29 August 2003, and the 15th day or last day for filing a motion for reconsideration of the same, 13 September 2003, was a Saturday; hence, Atty. Restor was able to file such a motion only on 15 September 2003, Monday, the next working day. In its Resolution dated 2 May 2007, the Court of Appeals reconsidered its initial position on the point of the late filing of the Motion for Reconsideration of the 5 August 2003 Decision of the Office of the President, conceding that: It is true, as [herein petitioners Alfonso and Fatima] argue, that the Office of the President failed to take into consideration that the 15th day fell on a Saturday and therefore, the Motion for Reconsideration, which was filed on the 17th day, cannot be said to have been filed out of time.[17]

But the appellate court remained steadfast in its resolve that Atty. Restor lacked the legal personality to file the Motion for Reconsideration of the 5 August 2003 Decision of the Office of the President despite the Letter of Appointment, dated 16 November 2003, executed by Edwinos representatives and legal heirs in Atty. Restors favor. The Court of Appeals pronounced that: [T]he Letter of Appointment (citation omitted) appended by the petitioners to the Petition for Review cannot cure Atty. Restors lack of authority in filing the Motion for Reconsideration before the Office of the President. Not only was said letter not presented before the latter. It was likewise executed only after the Office of the President issued the assailed Order. That being the case, Atty. Restors lack of authority cannot be said to have been cured.[18]

In the end, the Court of Appeals concluded that: Thus, while the petition for review appears to have been filed on time, the fact is that the decision sought to be reviewed has already become final and executory. In view of said finality, this Court is without authority to review said Decision anymore.[19]

Hence, this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court bringing forth the following assignment of errors: I. THE COURT OF APPEALS ERRED IN AFFIRMING THE RULING OF THE OFFICE OF THE PRESIDENT THAT ATTY. RESTOR, PETITIONERS FORMER COUNSEL, HAD NO LEGAL PERSONALITY TO FILE THE MOTION FOR RECONSIDERATION BEFORE THE OFFICE OF THE PRESIDENT, IN VIEW OF EDWINOS DEATH, PURSUANT TO SECTION 16, RULE 3 OF THE RULES OF COURT AND ARTICLE 1919(3) OF THE CIVIL CODE; II.

THE COURT OF APPEALS ERRED IN REFUSING TO RULE ON THE PROPRIETY OF THE DISMISSAL OF PETITIONERS MOTION FOR RECONSIDERATION BY THE OFFICE OF THE PRESIDENT; and III THE DECISION OF THE DENR REGIONAL EXECUTIVE DIRECTOR DATED JUNE 4, 1993 IN DENR CASE NO. IV-5438 IN FAVOR OF PETITIONERS HAS LONG BECOME FINAL AND EXECUTORY. AS SUCH, RESPONDENTS SUBSEQUENT OPPOSITION AND/OR PROTEST DATED APRIL 15, 1994 DOCKETED AS DENR CASE NO. IV-B-5520 VIOLATES THE PRINCIPLE OF RES JUDICATA.

At the crux of this Petition is the issue of whether the Court of Appeals erred in dismissing the Petition for Review of Edwinos legal heirs in CA-G.R. SP No. 81305 on the ground that the 5 August 2003 Decision of the Office of the President in O.P. Case No. 98-8537, being assailed in the latter Petition, had already attained finality. Alfonso and Fatima maintain that the Court of Appeals erred in affirming the 27 October 2003 Order of the Office of the President which dismissed the Motion for Reconsideration filed by Atty. Restor based on a misapplication of Section 16, Rule 3 of the Revised Rules of Court. They aver that the failure to comply with said procedural rule should not invalidate the proceedings and the judgment rendered therein if the action survives the death of the party to the case. The action in this case survives the death of Edwino A. Torres as the subject of said action was ownership of real property and not some personal liability. Thus, Edwinos death did not extinguish his civil personality. Alfonso and Fatima argue further that their right to due process would be violated if their motion for reconsideration would be brushed aside just because counsel failed to move for a substitution of a party. x x x. In any case, Atty. Restor submitted a Letter of Appointment appointing him as counsel which ratified his representation of petitioners.[20] In defense of the assailed resolutions of the Court of Appeals, Balligi contends that the arguments of Edwinos heirs are untenable as [p]etitioners stand is premised on the assumption that the proceedings and the judgment had before the Office of the President were invalid.[21] Quite the reverse, Balligi asserts that said proceedings stand for even petitioners ADMITTED the non-personality of Atty. Restor under (sic) their Motion for Reconsideration before the Honorable Court of Appeals x x x.[22] That said, however, Balligi, through a new counsel, Atty. Amando S. Fabros, digressed from previous arguments. Balligi now claims that [t]he ruling of the Office of the President was not so much based on the failure of either Atty. Alfredo A. Castillo (Atty. Castillo) or Atty. Restor to give advice or information as to the death of Edwino A. Torres but on the apparent non-withdrawal of Atty. Castillo who was handling the appeal, and the unceremonious taking over of said appeal by Atty. Restor without such withdrawal and written authority of petitioners.[23] She insists that what was invalidated or not given force and effect was the Motion for Reconsideration filed by Atty. Restor without legal authority or personality.[24] Balligi submits that if a party appears in an action by attorney, he must be heard only through such attorney, who, so long as he remains the attorney of record, has the exclusive management and control of the action and of all steps and proceedings taken therein to enforce the rights and remedies of his client.[25] We agree with petitioners that the Office of the President misapplied the rule on substitution upon the death of a party litigant. Note that the rules and regulations governing appeals to the Office of the President of the Philippines are embodied in Administrative Order No. 18, Series of 1987, entitled Prescribing Rules and Regulations Governing Appeals to the Office of the President of

the Philippines. Though nothing therein provides for substitution of a party in case of death, the same states in its Section 9 that: SECTION 9. The Rules of Court shall apply in a suppletory character whenever practicable.

Sec. 16, Rule 3 of the Revised Rules of Court, thus, finds application herein, in that it covers the situation in case of the death of a party. The rule provides: Section 16. Death of party; duty of counsel. Whenever a party to a pending action dies, and the claim is not thereby extinguished , it shall be the duty of his counsel to inform the court within thirty (30) days after such death of the fact thereof, and to give the name and address of his legal representative or representatives. Failure of counsel to comply with his duty shall be a ground for disciplinary action. 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 a guardian ad litemfor the minor heirs. The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice. If no legal representative is named by the counsel for the deceased party, or if the one so named shall fail to appear within the specified period, the court may order the opposing party, within a specified time, to procure the appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. The court charges in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. (Emphases ours.)

Clear from the aforequoted provision that a deceased party may be substituted by his heirs, but it must be emphasized that substitution may only be allowed in actions that survive the death of a party thereto. In Gonzales v. Philippine Amusement and Gaming Corporation,[26] citing Bonilla v. Barcena,[27] we declared that the determination of whether an action survives the death of a party depends on the nature of the action and the damage sued for. We explicated: In the causes of action which survive the wrong complained of affects primarily and principally property and property rights, the injuries to the person being merely incidental, while in the causes of action which do not survive the injury complained of is to the person, the property and rights of property affected being incidental x x x.

In the case at bar, both parties accuse the other of unlawfully depriving them of their respective rights to acquire the subject property, together with the house built thereon, by means of an MSA grant from the State. Evidently, what are primarily and principally affected herein are the property and property rights of the parties, and any injuries to their persons (i.e., damages) are only incidental. Such property and property rights survived Edwinos death and may pass on by succession to his heirs. Therefore, the heirs must be allowed to continue any litigation to protect said property or property rights and to substitute themselves for the deceased party in accordance with appropriate rules.

According to Section 16, Rule 3 of the Revised Rules of Court, a counsel, within 30 days from his clients death, is duty-bound to inform the court of such fact, and to submit the name/s and address/es of the deceased clients legal representative/s. Thereafter, the court shall order, forthwith, the appearance of and substitution by the deceased partys legal representative/s within another period of 30 days from notice. Nowhere is it mentioned in the instant case when exactly Edwino died. Atty. Restor just informed the Office of the President of the fact of Edwinos death in the Motion for Reconsideration of the 5 August 2003 Decision, which he filed on 15 September 2003 on behalf of his deceased client. With no exact date of Edwinos death, we have no basis for determining whether Atty. Restor was able to inform the Office of the President of such fact within the requisite period of 30 days. Nevertheless, even assuming that Atty. Restor belatedly notified the Office of the President of Edwinos death, Section 16, Rule 3 of the Revised Rules of Court only provided that, in case of failure of the counsel to comply with his duty as stated in the first paragraph thereof, it would be a ground for disciplinary action against said counsel, not that he/she would already be without personality to appear as counsel in the proceedings for the benefit of his/her client or the latters heirs. Instructive herein is our ruling in Heirs of F. Nuguid Vda. de Haberer v. Court of Appeals.[28] Florentina Nuguid Vda. de Haberer (Florentina) was the appellant in the case still pending before the Court of Appeals when she died. Florentinas counsel, Attorneys Bausa, Ampil and Suarez, gave the Court of Appeals notice of their clients death and requested the suspension of the running of the period within which to file the appellant's brief, pending the appointment by the probate court of an executor of the latters estate. The Court of Appeals denied the motion for extension/suspension of time to file appellants brief and dismissed the appeal. Florentinas counsels filed their urgent motion for reconsideration, explaining that their predicament over the requests for extension/suspension of period to file a brief was due to the uncertainty of whether their services would still be retained by the heirs or legal representatives of their deceased client. Florentinas counsels still felt obligated, however, to preserve the right of Florentinas heirs/successors to continue the appeal, pursuant to what is now Section 16, Rule 3 of the Revised Rules of Court, pending the settlement of the question of who among such heirs/successors should be the executor of the deceased's estate. Hence, Florentinas counsel presented, for admission, the printed "brief for the appellant," the printing of which they had deferred "for professional ethical considerations," pending action by the appellate court on their request for suspension of the period. Despite the foregoing explanation by Florentinas counsel, the Court of Appeals still refused to reconsider its earlier dismissal of the appeal and to admit the submitted appellants brief. In addition to invoking the general principle that litigants have no right to assume that such extensions will be granted as a matter of course; the appellate court also cited the equally established principle that the relation of attorney and client is terminated by the death of the client. In the absence of a retainer from the heirs or authorized representatives of his deceased client, the attorney would thereafter have no further power or authority to appear or take any further action in the case, save to inform the court of the client's death and take the necessary steps to safeguard the deceased's rights in the case. Upon appeal to us, we found that the Court of Appeals gravely erred in not following the Rule and requiring the appearance of the legal representative of the deceased and instead dismissing the appeal of the latter who had yet to be substituted in the pending appeal. We held that: Respondent court therefore erred in ruling that since upon the demise of the party-appellant, the attorney-client relationship between her and her counsels "was automatically severed and terminated," whatever pleadings filed by said counsel with it after the death of said appellant "are mere scraps of paper." If at all, due to said death on May 25, 1975 and severance of the attorney-client relationship, further proceedings and specifically the running of the original 45day period for filing the appellant's brief should be legally deemed as having been automatically suspended, until the proper substitutionof the deceased appellant by her executor or administrator or her heirs shall have been effected within the time set by respondent court pursuant to the cited Rule.

xxxx Prescinding from the foregoing, justice and equity dictate under the circumstances of the case at bar that the rules, while necessary for the speedy and orderly administration of justice, should not be applied with the rigidity and inflexibility of respondent court's resolutions. What should guide judicial action is the principle that a party litigant is to be given the fullest opportunity to establish the merits of his complaint or defense rather than for him to lose life, liberty, honor or property on technicalities. x x x.[29] (Emphases supplied.) In this case, Atty. Restor is in much the same situation as Florentinas counsels. Though incomplete, the mention by Atty. Restor of Edwinos death in the Motion for Reconsideration effectively informed the Office of the President of the same. Having been apprised of the fact of Edwinos death, it was incumbent upon the Office of the President, even without Atty. Restors motion to such effect, to order the legal representative/s of the deceased party to appear and be substituted; or, at the very least, to direct the counsel to furnish the court with the names and addresses of such representative/s. Since Atty. Restor filed the Motion for Reconsideration within the reglementary period and no longer requested for suspension/extension of time to do so, the Office of the President need not suspend the running of said reglementary period as in Heirs of F. Nuguid Vda. de Haberer, but it could have deferred any action on said Motion until a substitution had been effected and it had ascertained that the substituted heirs chose to retain Atty. Restors services as legal counsel. Conspicuously, the Office of the President completely failed to act on the information that Edwino had died so as to effect proper substitution by the latters heirs, as set forth in Section 16, Rule 3 of the Revised Rules of Court. The only action the Office of the President took as regards said information was to deny the Motion for Reconsideration filed by Atty. Restor for his lack of personality, given his clients death. This we find totally contrary to equity and fair play since Edwinos heirs were, in effect, deprived of their right to seek reconsideration or appeal of the adverse decision of the Office of the President which was itself partly responsible for their non-substitution. We emphasize that the purpose behind Section 16, Rule 3 of the Revised Rules of Procedure is the protection of the right to due process of every party to a litigation who may be affected by the intervening death. The deceased litigant is himself or herself protected, as he/she continues to be properly represented in the suit through the duly appointed legal representative of his estate.[30] The spirit behind the general rule requiring a formal substitution of heirs is not really because substitution of heirs is a jurisdictional requirement, but because non-compliance therewith results in the undeniable violation of the right to due process of those who, though not duly notified of the proceedings, are substantially affected by the decision rendered therein.[31] It must also be remembered that, unless properly relieved, the counsel is responsible for the conduct of the case;[32] he is obligated by his client and the court to do what the interest of his client requires until the end of litigation or his representation is terminated formally and there is a termination of record.[33] And the only way the Office of the President could have ascertained whether Atty. Restor still had the authority to file the Motion for Reconsideration on behalf of Edwinos heirs, or otherwise had been relieved or his representation terminated, was by having Edwinos heirs come forth as the rules required. In fact, in the Letter of Appointment dated 16 November 2003, which was presented before the Court of Appeals, Alfonso and Fatima, as Edwinos legal representatives and heirs, explicitly retained the services of Atty. Restor by [appointing] and [engaging] [his] legal services x x x in O.P. Case No. 98 -8537 before the Office of the President and to further represent [them] in the event that the afore-mentioned case is appealed to the Court of Appeals/Supreme Court.[34] Even though belatedly executed, such Letter of Appointment demonstrates that if they were just given the opportunity by the Office of the President, Alfonso and Fatima could have easily confirmed the authority of Atty. Restor to continue acting as their counsel in the proceedings and to submit the Motion for Reconsideration of the 5 August 2003 Decision of the Office of the President.

Interestingly, if, as argued by the Office of the President and the Court of Appeals, Atty. Restor no longer had the personality to represent Edwino upon the latters death, assuming he died prior to the rendition of the decision of the Office of the President, should it not also follow that the sending of a copy of the 5 August 2003 Decision of the Office of the President to Atty. Restor, as counsel of record, could no longer be deemed a notice to the party, and his receipt of the same could not have caused the commencement of the period within which to file a motion for reconsideration? As a consequence, the reglementary period within which to move for reconsideration of the assailed decision in O.P. Case No. 98-8537 had really not yet begun to toll. Given the foregoing, the 5 August 2003 Decision of the Office of the President could not have attained finality. It being partly responsible for the non-substitution of the heirs for the deceased Edwino, the Office of the President could not dismiss the Motion for Reconsideration filed by Atty. Restor, to the prejudice of said heirs. Justice and equity demand that Edwinos heirs be given the opportunity to contest the adverse judgment that affects the property and property rights to which they succeeded. A rule intended to protect due process cannot be invoked to defeat the same. This having been said, we address the recent theory[35] of Atty. Fabros, Balligis new counsel, that Atty. Restors lack of personality to file the Motion for Reconsideration of the 5 August 2003 Decision of the Office of the President was due to the failure of Atty. Castillo, Edwinos previous counsel, to formally withdraw as such, and of Atty. Restor to formally substitute for Atty. Castillo. A thorough review of the Order dated 27 October 2003 of the Office of the President (dismissing the Motion for Reconsideration of the Decision dated 5 August 2003 filed by Atty. Restor, due to the latters lack of personality), and the Resolutions dated 29 November 2006 and 2 May 2007 of the Court of Appeals (affirming the dismissal by the Office of the President of said Motion for Reconsideration) reveal no such pronouncement. The plain reason for the dismissal of the Motion for Reconsideration was that Atty. Restor had no more personality to file the same, given that Edwinos death extinguished the attorney-client relationship between them. But even assuming, for the sake of argument, that the Office of the President and the Court of Appeals did find that Atty. Restor had no personality to file the Motion for Reconsideration in question because Atty. Castillo had not withdrawn as Edwinos counsel and Atty. Restor had not substituted for Atty. Castillo; such finding would have likewise been erroneous. A party may have two or more lawyers working in collaboration in a given litigation,[36] but the fact that a second attorney enters his appearance for the same party does not necessarily raise the presumption that the authority of the first attorney has been withdrawn.[37] The second counsel should only be treated as a collaborating counsel despite his appearance as "the new counsel of record." A lawyer is presumed to be properly authorized to represent any cause in which he appears;[38] the second counsel, in this case Atty. Restor, is presumed to have acted within his authority as collaborating counsel when he filed the Motion for Reconsideration of the 5 August 2003Decision of the Office of the President. Finally, we stop short of resolving the issue of whose MSA should be given due course, because in order to do so, we must first make findings of fact concerning the authenticity and validity of the Affidavit of Relinquishment/Sale of Right dated 9 October 1989, allegedly executed by Balligi in favor of Edwino. It must be noted that the DENR and the Office of the President made divergent findings thereon. We cannot, as of yet, make such findings given the derth of evidence on record. To arrive at an ultimate determination, the remand of the case to the Court of Appeals is in order, so that it can give due course to the Petition for Review in CA-G.R. SP No. 81305. Time and again, we have stated that this Court is not a trier of fact or otherwise structurally capacitated to receive and evaluate evidence de novo, unlike the Court of Appeals. The Court of Appeals generally has the authority to review findings of fact, and even hold hearings for further reception of evidence. Its conclusions as to findings of fact are

generally accorded great respect by this Court. It is a body that is fully capacitated and has a surfeit of experience in appreciating factual matters, including documentary evidence. WHEREFORE, premises considered, the instant Petition is PARTLY GRANTED. The assailed twin Resolutions dated 29 November 2006 and 2 May 2007 of the Court of Appeals in CA-G.R. SP No. 81305 are REVERSED and SET ASIDE, insofar as they affirmed the declarations of the Office of the President in the latters Order dated 27 October 2003 in O.P. Case No. 98-8537 that, given the death of his client, Edwino A. Torres, Atty. Alexander Restor lacked the personality to file the Motion for Reconsideration of the Decision dated 5 August 2003; and that, since no motion for reconsideration or appeal had been timely filed, the said Decision dated 5 August 2003 of the Office of the President had become final and executory. The case is hereby REMANDED to the Court of Appeals, which is ORDERED to give due course to the Petition for Review filed in CA-G.R. SP No. 81305 and to hold further proceedings in accordance with this Decision.

SO ORDERED.

IMELDA BIDES-ULASO, Complainant Vs. ATTY. EDITA NOE-LACSAMANA, Respondent [A.C. No. 7297, September 29, 2009]

DECISION BERSAMIN, J.: The decisive question to be resolved in this administrative proceeding is whether or not the notarization of the jurat of the amended verification and affidavit of non-forum shopping attached to the initiatory pleading even before the plaintiff-client has affixed her own signature amounts to censurable conduct on the part of the notary-counsel.

The Integrated Bar of the Philippines (IBP) found respondent Atty. Edita NoeLacsamana, the notary-counsel, guilty of gross negligence and of a violation of the Notarial Law; and recommended her suspension from the practice of law for six months.[1] She now pleads her cause before us.[2]

Antecedents

The respondent was the counsel of Irene Bides (Bides) when the latter filed a civil action in the Regional Trial Court (RTC) in Pasig City against complainant Imelda Bides-Ulaso (Ulaso), her own niece; Alan Ulaso (Ulasos husband); Bartolome Bides (Ulasos father and Bides brother); the Register of Deeds of Region II, Metro Manila; and the Revenue District Office of San Juan, Metro Manila. The action was docketed as Special Civil Action (SCA) No. 2481 and raffled to Branch 167 of the RTC.

Bides amended the complaint on June 23, 2003 to demand the declaration of nullity of the deed of sale dated May 27, 1996 pertaining to the parcel of land situated in San Juan, Metro Manila of which Bides was the registered owner. Bides averred that Ulaso had taken her owners certificate of title during her absence from her residence and that Ulaso had then caused the transfer of the property to herself through the fraudulent execution of the deed of sale.[3]

The amended complaint of Bides contained a so-called amended verification and affidavit of non-forum shopping dated June 18, 2003, on which was a signature preceded by the word for above the printed name IRENE BIDES. The signature bore a positive resemblance to the respondents signature as the notary on the jurat of the amendedverification and affidavit of non-forum shopping.[4] Seeing the defective execution of the amended verification and affidavit of non-forum shopping, Ulaso and her co-defendants filed a motion to dismiss on July 22, 2003,[5] citing the defect as a ground, along with another.

Through the respondent as her counsel, Bides opposed the motion to dismiss on August 6, 2003, claiming an inadvertent mistake committed in relation to the signature appearing above the printed name of the affiant, but offering the excuse that the defective amended verification and affidavit of non-forum shopping had actually been only a sample-draft intended to instruct Irene Mallari, the respondents new secretary, on where Bides, as affiant, should sign. Bides also claimed that the respondents signature above the printed name of the affiant had not been

intended to replace the signature of Bides as the affiant; that the correct amended verification and affidavit of non-forum shopping to be appended to the amended complaint had been executed only on June 23, 2003 due to her (Bides) delayed arrival from her home province of Abra; and that Mallari had failed to replace the defective document with the correct amended verification and affidavit of non-forum shopping.[6]

The RTC denied the motion to dismiss and even declared Ulaso and her co-defendants in default. The RTC ultimately decided the action in favor of Bides, granting reliefs like the nullification of the deed of sale between Bides, as seller, and Ulaso, as buyer.[7]

On appeal, the Court of Appeals affirmed the RTCs judgment.[8]

Bides and the respondent brought other proceedings against Ulaso. On September 26, 2003, Bides sued Ulaso and others for ejectment in the Metropolitan Trial Court (MeTC) in San Juan, Metro Manila, to evict them from the premises of Bides property subject of the RTC case.[9] She next formally charged Ulaso and two others with falsification of a public document in the Manila Prosecutors Office for the execution of the nullified deed of sale, resulting in the criminal prosecution of Ulaso and the others before the MeTC, Branch 17, in Manila.[10] The respondent actively prosecuted the criminal charge against Ulaso after being granted by the MeTC the express authority for that purpose pursuant to the Rules of Court.[11] The respondent herself commenced disbarment proceedings in the IBP against Atty. Yolando Busmente, Ulasos counsel; and proceedings for usurpation against Elizabeth de la Rosa, for appearing as Ulasos other counsel although she had not been a member of the Philippine Bar.[12] The disbarment proceedings against Atty. Busmente were docketed as CBD Case No. 05-1462.

To counteract the aforestated moves of Bides and the respondent, Ulaso initiated this proceeding against the respondent on March 2, 2005, praying for the latters disbarment due to her act of signing the amended verification and affidavit of non-forum shopping attached to the amended complaint of Bides and notarizing the document sansthe signature of Bides and despite the non-appearance of Bides before her.[13]

On July 21, 2005, Bides and Ulaso entered into a compromise agreement to settle the criminal case for falsification, whereby Bides agreed to drop the criminal charge against Ulaso in exchange for, among others, Ulasos withdrawal of the disbarment complaint against the respondent.[14] The MeTC, Branch 17, in Manila approved the compromise agreement.

The agreement on the dropping of the criminal case notwithstanding, the complaint for disbarment continued against the respondent. The IBP Committee on Bar Discipline designated Atty. Patrick M. Velez as Investigating Commissioner. After due hearing, Atty. Velez submitted his report and recommendation dated December 8, 2005,[15] in which he rendered the following resolution and findings, viz:

IV. RESOLUTION AND FINDINGS

We are not impressed with the excuses presented by the respondent. The lapse committed by the respondent is clear based on the facts and pieces of evidence submitted in this case.

The respondent admits signing the questioned verification and there is also no dispute that she notarized the same. Even if her tale is true, the fact that she notarized her own signature is inexcusable. It cannot even be pardoned as a simple act of negligence as the standards set by notarial law are stringent enough to require all notaries public to exercise caution in order to protect the integrity and veracity of documents.

We also cannot understand the fact that all the pleadings submitted to the court do not bear the corrected verification and certification. It may be easy to convince us that she is really innocent of the charges if at least one of those documents or even that one copy furnished to the other party in that case would bear at least one such corrected verification. But no, there was none at all. This certainly militates against the position that respondent lawyer took.

We have already stated earlier that lawyers may be disciplined for misconduct as a notary public, and now emphasize that the respondent can not even hide behind the mantle of good faith or throw blame to her secretary. Even as the Supreme Court stated that:

If the document he notarized turned out to have been falsified, without the fact being known to him at the time, he may still be admonished for not taking pains to ascertain the identity of the person who acknowledged the instrument before him. (Cailing vs. Espinoza, 103 Phil. 1165)

Indeed, we may even consider her being grossly negligent in allowing her secretary to commit that error. She gave her secretary blanket authority where she should have exercise sufficient prudence to protect the integrity of her documents. The burden of preparing a complete pleading falls on counsels shoulders, not on the messenger (Tan v. Court of Appeals, 295 SCRA 765 [1998]) and not even on the secretary.

Besides, even if the story she tells us is true, it would appear that the document was pre-notarized based on the very averments made in Irene Mallaris Affidavit of Merit when she stated that:

3. Atty. Lacsamana was scheduled for an out-of-town trip on Monday, June 23, 2003, thus she hurriedly notarized another prepared set of Amended Verification dated June 23, 2003, and repeatedly told me to file the amended complaint not later than that afternoon to this Honorable Court after replacing its old June 18, 2003-Amended Verification;

4. Irene Bides arrived only after lunch and after her niece cause her to sign the amended verification, I replaced the last page of the sets of the Amended Complaint without knowing that I missed its original copy and the copy I hurriedly sent to the counsel for the respondent.

Respondent was not around when the document was signed by the respondents client. That is a violation of notarial law and deceitful conduct of the part of a lawyer, since he is notarizing a document which he did not actually witness being signed in his presence.

Even page 8 of the respondents notarial register will not help her in this case. All that it shows is the alleged document no. 36, but what about document no. 35 which should appear in page 7 of Book no. 1? The second document was notarized on another page and it is incumbent on the respondent to show that the same was really not recorded as such. The failure of respondent to present such evidence should be treated as disputable presumption that the same would be detrimental to his interests if so presented. Thus, when the circumstances in proof tend to fix the liability on a party who has it in his power to offer evidence of all facts as they existed and rebut the inference which the circumstances in proof tend to establish, and he fails to offer such proof, the natural conclusion is that proof if produced, instead of rebutting, would support the inference against him, and the court is justified in acting upon that conclusion (Herrera, Remedial Law, VI, 1999 ed p. 63 citing Worcester vs. Ocampo, 22 Phil. 42).

This commission feels that respondent is not being truthful with her defenses. The problem with using such unjustified excuses is that one lie will pile up over the other. Somewhere along the way, the story will leak out its sordid details exposing the excuse as a mere concocted tale and nothing more.

We have the impression that respondent is trying to mislead this Commission, which we cannot allow.

The issue in this case is really limited and focused on the signature and the notarization of the verification and certification against forum shopping for Irene Bides. Does it constitute actionable misconduct? The other matters raised by the respondent have little bearing herein because it refers to other cases which she has against the complainant. But the causes of action are different so we will deign to entertain such other matters.

The practice of law is a privilege and respondent has gravely abused the same:

The practice of law is a privilege burdened with conditions. Adherence to rigid standards of mental fitness,

maintenance of the highest degree of morality and faithful compliance with the rules of the legal profession are the conditions required for remaining member of good standing of the bar and for enjoying the privilege to practice law. Any breach by lawyer of any of these conditions makes him unworthy of the trust and confidence which courts and clients must, by necessity, repose in him or unfit to continue in the exercise of his professional privilege. His misconduct justifies disciplinary action against him or the withdrawal of his privilege to practice law. (Agpalo, Legal Ethics, 1989 Ed., 392; citation of cases omitted.)

What is far worse is that the respondent has taken a habit of making such excuses for similar mistakes she committed. This Commission notes that the respondent herein is also a complainant in a different case against Atty. Yolando Busmente docketed as CBD case no. 05-1462. In that case, again no certification against non-forum shopping was made in that case, but instead of admitting the lack thereof (as it is not absolutely required in CBD cases) she went on to create a different story that her lawyer was negligent. Unfortunately said lawyer is already dead and cannot answer her accusations. She tried to pass off another set of certification which allegedly was not included with the original documents. What is however telling is that in all the seven (7) copies submitted to the CBD and that one (1) copy furnished to the respondents in that case, no such certification appears.

This unacceptable pattern of behavior compels us to recommend stricter measures to ensure that respondent lawyer is reminded of her solemn duty and obligation to be truthful and honest.

WHEREFORE, it is hereby recommended that the respondent lawyer, Atty. Edita Noe-Lacsamana be suspended from the practice of law for a period of not less than two (2) years and that she be required to take three (3) units of MCLE required legal ethics before she may be allowed to practice law again.[16]

In its Resolution No. XVII-2006-272 dated May 26, 2006, the IBP Board of Governors approved the report and recommendation of the Investigating Commissioner with modification,[17] to wit:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex A; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and for notarizing a verification which she has executed, gross negligence and violation of the notarial law, Atty. Edita Noe-Lacsamana is hereby SUSPENDED from the practice of law for six (6) months.

Respondents Motion for Reconsideration

On August 29, 2006, the respondent came to the Court to seek the overturning of the IBP resolution, contending that:

I.

THE METED 6-MONTH SUSPENSION FROM THE LAW PRACTICE OF THE RESPONDENT IS REPUGNANT TO THE FAILURE OF THE COMPLAINANT TO SHOW PROOF OF HER ALLEGED GROSS NEGLIGENCE AND VIOLATION OF THE NOTARIAL LAW, AS EVENTUALLY SELF-MANIFESTED BY THE COMPLAINANT, WHO, ABSENT KNOWLEDGE OR INVOCATION OF THE RESPONDENT, WITHDREW HER INSTANT COMPLAINT, AS EMBODIED IN THE JULY 22, 2005-DECISION OF HON. GERMANO FRANCISCO D. LEGASPI OF BRANCH 17, METROPOLITAN TRIAL COURT OF MANILA.

II.

THE BLEMISH CAUSED ON THE MORE THAN 26-YEARS OF UNSULLIED REPUTATION OF THE RESPONDENT AS A LAWYER IS COMPELLING HER TO ENTREAT THE HONORABLE BAR CONFIDANT TO ASSESS AND RECONSIDER THE UNJUST AND SPECULATIVE PORTRAYAL OF INVESTIGATING COMMISSIONER PATRICK M. VELEZ IN HIS DECEMBER 8, 2005-REPORT AND RECOMMENDATION TO THE IBP, THAT RESPONDENT IS GUILTY OF DISHONESTY AND/OR GROSS NEGLIGENCE, WITH AN UNACCEPTABLE PATTERN OF BEHAVIOR, WHICH ALTHOUGH NOT SPECIFIED, IS COMPATIBLE WITH A DEROGATORY CONCLUSION THAT SHE LACKS THE REQUIRED CANDOR, INTEGRITY AND PROFESSIONAL DECORUM OF A MEMBER OF THE BAR, IN REPUGNANCE TO THE MANDATE IN MANUBAY VS. GARCIA, 330 SCRA 237, THAT:

The lawyers guilt cannot be presumed. Allegation is never equivalent to proof and a bare charge cannot be equated with liability.

III.

THE FALLACIES OF THE COMPLAINANT WERE MISSED, DELIBERATELY OR OTHERWISE, IN THE INVESTIGATION OF THIS ADMINISTRATIVE CASE, PARTICULARLY ON THE FACT THAT THE COMPLAINT IS CONFINED ON A REHASH OF THE QUESTIONED AMENDED VERIFICATION AND AFFIDAVIT OF NON-FORUM

SHOPPING, TWO (2) YEARS AFTER ITS DISPUTE WAS SETTLED AT THE LOWER COURT AND AT THE COURT OF APPEALS, THUS, FILED OUT OF RANCOR OF THE COMPLAINANT FOR HAVING LOST ALL HER CASES AGAINST THE RESPONDENTS PRO BONO CLIENT, THUS, SHE WAS UNJUSTLY DENIED OF THE RULE IN SANTOS VS. DICHOSO, 84 SCRA 622, THAT:

The success of a lawyer in his profession depends almost entirely on his reputation. Anything which will harm his good name is to be deplored. Private persons and particularly disgruntled opponents may not, therefore, be permitted to use the courts as vehicles through which to vent their rancor on members of the bar. (underscoring supplied)

Ruling

We affirm the findings against the respondent.

A. Preliminary Considerations

The respondent argues that this proceeding should be abated by virtue of its withdrawal by Ulaso pursuant to the compromise agreement concluded in the criminal case and approved by the trial court.

The respondents argument is unwarranted.

The agreement between Bides and Ulaso stipulating the withdrawal of the disbarment case against the respondent did not terminate or abate the jurisdiction of the IBP and of this Court to continue the present administrative proceeding against the respondent as a member of the Philippine Bar. We explained why in Rayos-Ombac v. Rayos,[18] viz:

The affidavit of withdrawal of the disbarment case allegedly executed by complainant does not, in any way, exonerate the respondent. A case of suspension or disbarment may proceed regardless of interest or lack of interest of the complainant. What matters is whether, on the basis of the facts borne out by the record, the charge of deceit and grossly immoral conduct has been duly proven. xxx. The complainant or the person who called the attention of the court to the attorney's alleged misconduct is in no sense a party, and has generally no interest in the outcome except as all good citizens may have in the proper administration of justice. Hence, if the evidence on record warrants, the respondent may be suspended or disbarred despite the desistance of complainant or his withdrawal of the charges. xxx.

The respondent next contends that we should reject the disbarment complaint because it was filed only after the lapse of two years from the occurrence of the cause; and that personal vendetta impelled its filing.

The respondents contention cannot be upheld.

Neither the lapse of time from the occurrence of the cause nor the motivation for the filing of the complaint diminished the Courts inherent power to discipline a member of the Bar whenever appropriate. First of all, the ordinary statutes of limitation had no application to disbarment or suspension proceedings against members of the Bar.[19] Indeed, such proceedings are sui generis. They are not akin to the trials of actions or suits in which interests and rights are enforced by the plaintiffs against the defendants, but are rather investigations into the conduct of the members of the Bar made by the Supreme Court within the context of its plenary powers expressly granted by the Constitution to regulate the practice of law.[20] The proceedings, which the Court may even motu proprio initiate, have neither plaintiffs nor prosecutors. The public interest is their primary objective, the true question for determination being whether or not the respondent members of the Bar are still fit to be allowed to retain their memberships and to enjoy the privileges appurtenant to such memberships.[21]

B. Basis for Disciplinary Action

Ulaso insists that the respondents act of signing the amended verification and affidavit of non-forum shopping for Bides as plaintiff-affiant violated the penal law, the 1997Rules of Civil Procedure, the Lawyers Oath, the Code of Professional Responsibility, and the Notarial Law.

In contrast, the respondent maintains that her signature was made not to fool the trial court, but only to illustrate to her new secretary how and where Bides should sign the form; and that the amended verification and affidavit of non-forum shopping, merely a sample-draft, was wrongly attached.

Investigating Commissioner Velez found that the respondent had deliberately and with malice led the trial court to believe that her signature in the amended verification and affidavit of non-forum shopping had been that of Bides.

We regard the finding of deliberation and malice to be unjustified. The admitted precedence by the word for of the signature on the amended verification and affidavit of nonforum shopping was an indicium that the respondent did not intend to misrepresent the signature as that of Bides. The apparent resemblance of the signature after the word for with the respondents signature as the notary executing the jurat rendered improbable that the respondent had intended to deceive, considering that the respondent would have instead written the name Irene Bides or forged the signature of Bides had she wanted to pass the signature off as that of Bides.

The respondent, by notarizing the document sans the signature of Bides, was only anticipating that Bides would subsequently sign, because, after all, Bides had already signed the original verification and affidavit. Ostensibly, the amended verification and affidavit of non-

forum shopping was intended to replace the original one attached to the initiatory pleading of Bides. Thus, bad faith did not motivate the respondent into notarizing the amended verification and affidavit of non-forum shopping.

The lack of bad faith notwithstanding, we nonetheless concur with the findings of Investigating Commissioner Velez that the respondents notarizing the amendedverification and affidavit of non-forum shopping in the absence of Bides as the affiant constituted a clear breach of the notarial protocol and was highly censurable.[22]

The jurat is that end part of the affidavit in which the notary certifies that the instrument is sworn to before her. As such, the notarial certification is essential. Considering that notarization is not an empty, meaningless, routinary act,[23] the faithful observance and utmost respect of the legal solemnity of the oath in the jurat are sacrosanct.[24]

Specifically, the notarial certification contained in the jurat of the amended verification and affidavit of non-forum shopping SUBSCRIBED AND SWORN TO BEFORE ME, on this 18th day of June 2003, affiant IRENE BIDES, showing to me her CTC Nos. 11833475 issued on November 21, 2002, in Manila[25] indicated both the necessity for the physical presence of Bides as the affiant and the fact that the signing was done in the presence of the respondent as the notary. The physical presence of Bides was required in order to have her as the affiant swear before the respondent that she was that person and in order to enable the respondent as the notary to ascertain whether Bides had voluntarily and freely executed the affidavit. [26] Thus, the respondent, by signing as notary even before Bides herself could appear before her, failed to give due observance and respect to the solemnity.

Being a lawyer commissioned as a notary, the respondent was mandated to discharge with fidelity the sacred duties appertaining to her notarial office. Such duties being dictated by public policy and impressed with public interest, she could not disregard the requirements and solemnities of the Notarial Law.[27] It was emphatically her primary duty as a lawyer-notary to obey the laws of the land and to promote respect for the law and legal processes.[28] She was expected to be in the forefront in the observance and maintenance of the rule of law. She ought to have remembered that a graver responsibility was placed upon her shoulders by virtue of her being a lawyer.[29]

In imposing the penalty upon the respondent, however, we opt to reprimand her instead of suspending her from the practice of law for three months, as the IBP recommended. This we do after we take into account, firstly, the absence of bad faith in her notarizing the unsigned document; secondly, the fact that the infraction was the first lodged against her in her long years of membership in the Bar; and thirdly, her recuperating from the debilitating stroke that had left her unable to perform any work since July 11, 2007.[30]

ACCORDINGLY, we modify the recommendation of the Integrated Bar of the Philippines by reprimanding respondent Atty. Edita Noe-Lacsamana, with a warning that a similar infraction in the future will be dealt with more severely.

SO ORDERED.

MARIA EARL BEVERLY C. CENIZA, Complainant, Vs. ATTY. VIVIAN G. RUBIA, Respondent. [A.C. No. 6166, October 2, 2009]

DECISION YNARES-SANTIAGO, J.:

In a verified complaint[1] dated July 25, 2003 filed with the Office of the Bar Confidant, Maria Earl Beverly C. Ceniza charged Atty. Vivian G. Rubia with grave misconduct, gross ignorance of the law and falsification of public documents.

The facts of the case are as follows:

On May 3, 2002, complainant sought the legal services of the respondent in regard to the share of her mother-in-law in the estate of her husband Carlos Ceniza. As she had no money to pay for attorneys fees since her mother-in-law would arrive from the United States only in June 2002, respondent made her sign a promissory note for P32,000.00, which amount was lent by Domingo Natavio. After her mother-in-law arrived and paid the loan, respondent furnished them a copy of the complaint for partition and recovery of ownership/possession representing legitime but with no docket number on it. They kept on following up the progress of the complaint. However, three months lapsed before respondent informed them that it was already filed in court. It was then that they received a copy of the complaint with Civil Case No. 4198 and a rubber stamped RECEIVED thereon. However, when complainant verified the status of the case with the Clerk of Court of the Regional Trial Court of Davao del Sur, she was informed that no case with said title and docket number was filed.[2]

Further, complainant alleged that respondent was guilty of gross ignorance of the law for intending to file the complaint in Davao del Sur when the properties to be recovered were located in Koronadal, South Cotabato and Malungon, Sarangani Province, in violation of the rule on venue that real actions shall be filed in the place where the property is situated. Complainant also alleged that respondent forged the signature of her husband, Carlito C. Ceniza, in the Affidavit of Loss attached to a petition for the issuance of a new owners duplicate certificate of title filed with the Regional Trial Court (RTC) of Digos City, Branch 20, in Misc. Case No. 1142202.[3]

In her comment, respondent assailed the personality of the complainant to institute the administrative complaint for disbarment as she was not a party to the action for partition and recovery of ownership/possession. As such, her allegations in the administrative complaint were all hearsay, self-serving and unsubstantiated. Further, the charge of forgery of the Affidavit of Loss was belied by the March 3, 2003 decision of the trial court, wherein Carlito C. Ceniza affirmed his statements in the said affidavit when he was called to testify.[4]

On February 2, 2004, the Court resolved to refer the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.

On April 29, 2004, respondent filed a Supplemental Comment explaining the rubber stamped RECEIVED on the complaint. According to her, when her staff Jan Kirt Lester Soledad was at the RTC Office of the Clerk of Court, she called him through cellular phone and directed him to stop the filing of the complaint as the same lacked certain attachments. However, one copy thereof was already stamped RECEIVED by the receiving court personnel, who also assigned a docket number. She kept the copies of the complaint, including the one with the stamp, to be filed later when the attachments are complete.

Meanwhile, on November 7, 2005, respondent filed a Manifestation with Urgent Motion praying that the administrative complaint be likewise dismissed in view of the dismissal of the criminal case due to complainants apparent lack of interest to prosecute.

On January 19, 2007, the IBP Investigating Commissioner recommended that respondent be found guilty of falsification of public document and be meted the penalty of suspension from the practice of law for a period of three years. The report reads in part, as follows:

A proceeding for suspension or disbarment is not in any sense a civil action, where the complainant is a plaintiff and the respondent lawyer is a defendant. It involved no private interest. The complainant or person who called the attention of the court to the attorneys misconduct is in no sense a party and has generally no interest in its outcome except as all good citizens may have in the proper administration of justice. It affords no redress for private grievance. (Tejan v. Cusi, 57 SCRA 154)

Prescinding from the aforequoted ruling, it is therefore irrelevant and immaterial if herein complainant is not a party to the subject civil complaint prepared by the respondent. A case of suspension or disbarment may proceed regardless of interest or lack of interest of the complainant. What matters is whether on the basis of the facts borne out by the record, the charge has been proven.

On the payment of the acceptance fee in the amount of P32,000.00, respondents contention that she acted as guarantor of Carlos Ceniza, complainants husband, when he borrowed money from a money lender, Domingo Natavio, the amount representing the acceptance, does not inspire belief. The promissory note dated May 3, 2002, appended as Annex A of the complaint-affidavit eloquently shows that consistent with the complainants allegation, she was made to borrow said amount to be paid as respondents acceptance fee. It bears stress that the date of the promissory note is the same date when respondents services were engaged leading to the preparation of the subject civil complaint. Complainants allegation is further enhanced by the fact that such promissory note was even notarized by the respondent.

On the alleged filing of the subject civil complaint, it is undisputed that the same was not filed before the Office of the Clerk of Court, RTC Davao Del Sur, as evidenced by a Certification from the said office appended as Annex A of

complainants Manifestation dated October 14, 2005. Thus, the claim of complainant that respondent falsified or caused it to falsify the stamp marked received dated May 10, 2002 including the case number 4198, finds factual and legal bases.

It bears stress that a copy of the subject civil complaint was obtained by complainant from the respondent herself who tried to impress upon the former that contrary to her suspicion, the subject civil complaint was already filed in court. However, inquiry made by the complainant shows otherwise.

Respondents contention that after one copy of the complaint was already stamped by court personnel in preparation for receiving the same and entering in the courts docket, she caused it to be withdrawn after realizing that the same lacked certain attachments, is bereft of merit.

In the first place, respondent miserably failed to mention these lacking attachments that allegedly caused the withdrawal of the complaint. Secondly, and assuming arguendo that the withdrawal was due to lacking attachments, how come the same was not filed in the next office day complete with attachments. And lastly, the Certification of the Clerk of Court clearly states that Civil Case No. 4188 is not the case of Mercedes Callejo vda. De Ceniza, et al. vs. Charlotte Ceniza, et al.

xxxx

The fact that the City Prosecutors Office of Digos, upon motion for reconsideration of the respondent, dismissed a similar complaint filed by herein complainant will not in anyway affect the above captioned administrative complaint.

The pendency of a criminal action against the respondent, from the facts of which the disciplinary proceeding is predicated, does not pose prejudicial question to the resolution of the issues in the disbarment case. (Calo vs. Degano, 20 SCRA 447) His conviction is not necessary to hold the lawyer administratively liable because the two proceedings and their objectives are different and it is not sound public policy to await the final resolution of a criminal case before the court act on a complaint against a lawyer as it may emasculate the disciplinary power of the court. (In re Brillantes, 76 SCRA 1) Nor is his acquittal, by this fact alone, a bar to an administrative complaint against him. (Piatt vs. Abordo, 58 Phil. 350).

The other allegations in the complaint about ignorance of the law are found to be without basis.

RECOMMENDATION

WHEREFORE, it is most respectfully recommended that herein respondent Atty. Vivian C. Rubia, be found guilty of the charge of falsification of public document and be meted the penalty of suspension from the practice of law for a period of three (3) years.

On May 31, 2007, the Board of Governors of the IBP issued a Resolution adopting the Investigating Commissioners recommendation with modification, as follows:

RESOLUTION NO. XVII-2007-237 Adm. Case No. 6166 Maria Earl Beverly C. Ceniza vs. Atty. Vivian G. Rubia

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex A; and finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering Respondents falsification of public document, Atty. Vivian G. Rubia is hereby DISBARRED.

However, in its December 11, 2008 Resolution, the Board of Governors reconsidered its May 31, 2007 Resolution by reducing the recommended penalty of disbarment to five years suspension from the practice of law, thus:

RESOLUTION NO. XVIII-2008-715 Adm. Case No. 6166 Maria Earl Beverly C. Ceniza vs. Atty. Vivian G. Rubia

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED the Recommendation of the Board of Governors First Division of the above-entitled case, herein made part of this Resolution as Annex A; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, the Motion for Reconsideration is hereby DENIED with modification, that Resolution RESOLUTION NO. XVII-2007-237 of the Board of Governors dated 31 May 2007 recommending the Disbarment of Atty. Vivian G. Rubia is reduced to Five (5) years Suspension from the practice of law.

On April 20, 2009, the IBP forwarded the instant case to this Court as provided under Rule 139-B, Section 12(b) of the Rules of Court.

Complainant seeks the disbarment of respondent from the practice of law for gross misconduct, ignorance of the law and for falsification of public document. In disbarment proceedings, the burden of proof rests upon the complainant, and for the court to exercise its disciplinary powers, the case against the respondent must be established by clear, convincing and satisfactory proof. Considering the serious consequence of the disbarment or suspension of a member of the Bar, this Court has consistently held that clear preponderant evidence is necessary to justify the imposition of the administrative penalty.[5]

The sole issue in this case is whether or not there is preponderant evidence to warrant the imposition of administrative sanction against the respondent.

In accusing respondent of falsification of public document, complainant alleged that respondent misrepresented to her that the complaint was already filed in court, when in fact, upon verification with the RTC Clerk of Court, it was not. Such misrepresentation is shown by the copy of the complaint with a stamped RECEIVED and docket number thereon. Apart from said allegations, complainant has not proferred any proof tending to show that respondent deliberately falsified a public document.

A perusal of the records shows that complainants evidence consists solely of her Affidavit-Complaint and the annexes attached therewith. She did not appear in all the mandatory conferences set by the investigating commissioner in order to give respondent the chance to test the veracity of her assertions. It is one thing to allege gross misconduct, ignorance of the law or falsification of public document and another to demonstrate by evidence the specific acts constituting the same.

Indeed, complainant has no way of knowing the surrounding circumstances behind the filing of the complaint by respondents staff because she was not present when the same was filed with the trial court. Complainant failed to disprove by preponderant evidence respondents claim that the case was not filed but was in fact withdrawn after it was stamped with RECEIVED and assigned with a docket number. We find this explanation satisfactory and plausible considering that the stamp did not bear the signature of the receiving court personnel, which is normally done when pleadings are received by the court.

Further, the certification of the RTC Clerk of Court that the complaint was not filed and that CIVIL CASE NO. 4198 pertained to another case, did not diminish the truthfulness of respondents claim, but even tended to bolster it. Necessarily, as the complaint was not filed, docket number 4198 indicated in the copy of the complaint was assigned to another case thereafter filed in court.

Thus, for lack of preponderant evidence, the investigating commissioners ruling that respondent was guilty of falsification of public document, as adopted by the IBPBoard of Governors, has no factual basis to stand on.

However, we find that respondent committed some acts for which she should be disciplined or administratively sanctioned.

We find nothing illegal or reprehensible in respondents act of charging an acceptance fee of P32,000.00, which amount appears to be reasonable under the circumstances. The impropriety lies in the fact that she suggested that complainant borrow money from Domingo Natavio for the payment thereof. This act impresses upon the Court that respondent would do nothing to the cause of complainants mother-in-law unless payment of the acceptance fee is made. Her duty to render legal services to her client with competence and diligence should not depend on the payment of acceptance fee, which was in this case promised to be paid upon the arrival of complainants mother-in-law in June 2002, or barely a month after respondent accepted the case.

Respondents transgression is compounded further when she severed the lawyer-client relationship due to overwhelming workload demanded by her new employer Nakayama Group of Companies, which constrained her to return the money received as well as the records of the case, thereby leaving her client with no representation. Standing alone, heavy workload is not sufficient reason for the withdrawal of her services.

Moreover, respondent failed to maintain an open line of communication with her client regarding the status of their complaint.

Clearly, respondent violated the Lawyers Oath which imposes upon every member of the bar the duty to delay no man for money or malice, Rules 18.03 and 18.04 of Canon 18, and Canon 22 of the Code of Professional Responsibility, thus:

CANON 18 - A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE.

xxxx

Rule 18.03 - A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable.

Rule 18.04 - A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the clients request for information.

CANON 22 - A LAWYER SHALL WITHDRAW HIS SERVICES ONLY FOR GOOD CAUSE AND UPON NOTICE APPROPRIATE IN THE CIRCUMSTANCES.

When a lawyer accepts to handle a case, whether for a fee or gratis et amore, he undertakes to give his utmost attention, skill and competence to it, regardless of its significance. Thus, his client, whether rich or poor, has the right to expect that he will discharge his duties diligently and exert his best efforts, learning and ability to prosecute or defend his (clients) cause with reasonable dispatch. Failure to fulfill his duties will subject him to grave administrative liability as a member of the Bar. For the overriding need to maintain the faith and confidence of the people in the legal profession demands that an erring lawyer should be sanctioned.[6]

WHEREFORE, in view of the foregoing, respondent Atty. Vivian G. Rubia is found GUILTY of violation of Rule 18.03 and Canon 22 of the Code of Professional Responsibility. Accordingly, she is SUSPENDED from the practice of law for six (6) months effective immediately, with a warning that similar infractions in the future will be dealt with more severely.

Let all courts, through the Office of the Court Administrator, as well as the Integrated Bar of the Philippines and the Office of the Bar Confidant, be notified of this Decision, and be it duly recorded in the personal file of respondent Atty. Vivian G. Rubia.

SO ORDERED.

REBECCA J. PALM, Complainant Vs. ATTY FELIPE ILEDAN JR., Respondent [A.C. No 8242, October 2, 2009]

DECISION CARPIO, J.: The Case The case before the Court is a disbarment proceeding filed by Rebecca J. Palm (complainant) against Atty. Felipe Iledan, Jr. (respondent) for revealing information obtained in the course of an attorney-client relationship and for representing an interest which conflicted with that of his former client, Comtech Worldwide Solutions Philippines, Inc. (Comtech). The Antecedent Facts Complainant is the President of Comtech, a corporation engaged in the business of computer software development. From February 2003 to November 2003, respondent served as Comtechs retained corporate counsel for the amount of P6,000 per month as retainer fee. From September to October 2003, complainant personally met with respondent to review corporate matters, including potential amendments to the corporate by-laws. In a meeting held on 1 October 2003, respondent suggested that Comtech amend its corporate by-laws to allow participation during board meetings, through teleconference, of members of the Board of Directors who were outside the Philippines. Prior to the completion of the amendments of the corporate by-laws, complainant became uncomfortable with the close relationship between respondent and Elda Soledad (Soledad), a former officer and director of Comtech, who resigned and who was suspected of releasing unauthorized disbursements of corporate funds. Thus, Comtech decided to terminate its retainer agreement with respondent effective November 2003. In a stockholders meeting held on 10 January 2004, respondent attended as proxy for Gary Harrison (Harrison). Steven C. Palm (Steven) and Deanna L. Palm, members of the Board of Directors, were present through teleconference. When the meeting was called to order, respondent objected to the meeting for lack of quorum. Respondent asserted that Steven and Deanna Palm could not participate in the meeting because the corporate by-laws had not yet been amended to allow teleconferencing. On 24 March 2004, Comtechs new counsel sent a demand letter to Soledad to return or account for the amount of P90,466.10 representing her unauthorized disbursements when she was the Corporate Treasurer of Comtech. On 22 April 2004, Comtech received Soledads reply, signed by respondent. In July 2004, due to Soledads failure to comply with Comtech's written demands, Comtech filed a complaint for Estafa against Soledad before the Makati Prosecutors Office. In the proceedings before the City Prosecution Office of Makati, respondent appeared as Soledads counsel. On 26 January 2005, complainant filed a Complaint[1] for disbarment against respondent before the Integrated Bar of the Philippines (IBP). In his Answer,[2] respondent alleged that in January 2002, Soledad consulted him on process and procedure in acquiring property. In April 2002, Soledad again consulted him about the legal requirements of putting up a domestic corporation. In February 2003, Soledad engaged his services as consultant for Comtech. Respondent alleged that from February to October 2003, neither Soledad nor Palm consulted him on confidential or privileged matter concerning the

operations of the corporation. Respondent further alleged that he had no access to any record of Comtech. Respondent admitted that during the months of September and October 2003, complainant met with him regarding the procedure in amending the corporate by-laws to allow board members outside the Philippines to participate in board meetings. Respondent further alleged that Harrison, then Comtech President, appointed him as proxy during the 10 January 2004 meeting. Respondent alleged that Harrison instructed him to observe the conduct of the meeting. Respondent admitted that he objected to the participation of Steven and Deanna Palm because the corporate by-laws had not yet been properly amended to allow the participation of board members by teleconferencing.

Respondent alleged that there was no conflict of interest when he represented Soledad in the case for Estafa filed by Comtech. He alleged that Soledad was already a client before he became a consultant for Comtech. He alleged that the criminal case was not related to or connected with the limited procedural queries he handled with Comtech. The IBPs Report and Recommendation In a Report and Recommendation dated 28 March 2006,[3] the IBP Commission on Bar Discipline (IBP-CBD) found respondent guilty of violation of Canon 21 of the Code of Professional Responsibility and of representing interest in conflict with that of Comtech as his former client. The IBP-CBD ruled that there was no doubt that respondent was Comtechs retained counsel from February 2003 to November 2003. The IBP-CBD found that in the course of the meetings for the intended amendments of Comtechs corporate by-laws, respondent obtained knowledge about the intended amendment to allow members of the Board of Directors who were outside the Philippines to participate in board meetings through teleconferencing. The IBP-CBD noted that respondent knew that the corporate by-laws have not yet been amended to allow the teleconferencing. Hence, when respondent, as representative of Harrison, objected to the participation of Steven and Deanna Palm through teleconferencing on the ground that the corporate by-laws did not allow the participation, he made use of a privileged information he obtained while he was Comtechs retained counsel. The IBP-CBD likewise found that in representing Soledad in a case filed by Comtech, respondent represented an interest in conflict with that of a former client. The IBP-CBD ruled that the fact that respondent represented Soledad after the termination of his professional relationship with Comtech was not an excuse. The IBP-CBD recommended that respondent be suspended from the practice of law for one year, thus: WHEREFORE, premises considered, it is most respectfully recommended that herein respondent be found guilty of the charges preferred against him and be suspended from the practice of law for one (1) year.[4] In Resolution No. XVII-2006-583[5] passed on 15 December 2006, the IBP Board of Governors adopted and approved the recommendation of the Investigating Commissioner with modification by suspending respondent from the practice of law for two years. Respondent filed a motion for reconsideration.[6]

In an undated Recommendation, the IBP Board of Governors First Division found that respondents motion for reconsideration did not raise any new issue and was just a rehash of his previous arguments. However, the IBP Board of Governors First Division recommended that respondent be suspended from the practice of law for only one year. In Resolution No. XVIII-2008-703 passed on 11 December 2008, the IBP Board of Governors adopted and approved the recommendation of the IBP Board of Governors First Division. The IBP Board of Governors denied respondents motion for reconsideration but reduced his suspension from two years to one year. The IBP Board of Governors forwarded the present case to this Court as provided under Section 12(b), Rule 139-B[7] of the Rules of Court. The Ruling of this Court We cannot sustain the findings and recommendation of the IBP. Violation of the Confidentiality of Lawyer-Client Relationship Canon 21 of the Code of Professional Responsibility provides: Canon 21. A lawyer shall preserve the confidence and secrets of his client even after the attorney-client relationship is terminated. (Emphasis supplied) We agree with the IBP that in the course of complainants consultations, respondent obtained the information about the need to amend the corporate by-laws to allow board members outside the Philippines to participate in board meetings through teleconferencing. Respondent himself admitted this in his Answer. However, what transpired on 10 January 2004 was not a board meeting but a stockholders meeting. Respondent attended the meeting as proxy for Harrison. The physical presence of a stockholder is not necessary in a stockholders meeting because a member may vote by proxy unless otherwise provided in the articles of incorporation or by-laws.[8] Hence, there was no need for Steven and Deanna Palm to participate through teleconferencing as they could just have sent their proxies to the meeting. In addition, although the information about the necessity to amend the corporate by-laws may have been given to respondent, it could not be considered a confidential information. The amendment, repeal or adoption of new by-laws may be effected by the board of directors or trustees, by a majority vote thereof, and the owners of at least a majority of the outstanding capital stock, or at least a majority of members of a non-stock corporation.[9] It means the stockholders are aware of the proposed amendments to the by-laws. While the power may be delegated to the board of directors or trustees, there is nothing in the records to show that a delegation was made in the present case. Further, whenever any amendment or adoption of new by-laws is made, copies of the amendments or the new by-laws are filed with the Securities and Exchange Commission (SEC) and attached to the original articles of incorporation and bylaws.[10] The documents are public records and could not be considered confidential. It is settled that the mere relation of attorney and client does not raise a presumption of confidentiality.[11] The client must intend the communication to be confidential.[12] Since the proposed amendments must be approved by at least a majority of the stockholders, and copies of the amended by-laws must be filed with the SEC, the information could not have been intended to be confidential. Thus, the disclosure made by respondent during the stockholders meeting could not be considered a violation of his clients secrets and confidence within the contemplation of Canon 21 of the Code of Professional Responsibility.

Representing Interest in Conflict With the Interest of a Former Client

The IBP found respondent guilty of representing an interest in conflict with that of a former client, in violation of Rule 15.03, Canon 15 of the Code of Professional Responsibility which provides: Rule 15.03 - A lawyer shall not represent conflicting interest except by written consent of all concerned given after a full disclosure of the facts.

We do not agree with the IBP. In Quiambao v. Bamba,[13] the Court enumerated various tests to determine conflict of interests. One test of inconsistency of interests is whether the lawyer will be asked to use against his former client any confidential information acquired through their connection or previous employment.[14] The Court has ruled that what a lawyer owes his former client is to maintain inviolate the clients confidence or to refrain from doing anything which will injuriously affect him in any matter in which he previously represented him.[15] We find no conflict of interest when respondent represented Soledad in a case filed by Comtech. The case where respondent represents Soledad is an Estafa case filed by Comtech against its former officer. There was nothing in the records that would show that respondent used against Comtech any confidential information acquired while he was still Comtechs retained counsel. Further, respondent made the representation after the termination of his retainer agreement with Comtech. A lawyers immutable duty to a former client does not cover transactions that occurred beyond the lawyers employment with the client.[16] The intent of the law is to impose upon the lawyer the duty to protect the clients interests only on matters that he previously handled for the former client and not for matters that arose after the lawyerclient relationship has terminated.[17] WHEREFORE, we DISMISS the complaint against Atty. Felipe Iledan, Jr. for lack of merit. SO ORDERED.

JUAN PABLO P. BONDOC, Complainant, Vs. Judge DIVINA LUZ P. AQUINO-SIMBULAN, Regional Trial Court, Branch 41, San Fernando City, Pampanga, Respondent. [A.M. No. RTJ-09-2204, October 26, 2009] DECISION BRION, J.: We rule on the complaint dated November 11, 2004[1] of former Representative Juan Pablo P. Bondoc (complainant) of Pampanga, charging Judge Divina Luz P. Aquino-Simbulan (respondent), of the Regional Trial Court, Branch 41, San Fernando City, Pampanga, with partiality, gross ignorance of the law and gross misconduct in the handling of Criminal Case Nos. 12726 to 12728 entitled People of the Philippines v. Salvador Totaan and Flordeliz Totaan (for: Violation of R.A. 3019 and Falsification of Public Documents). The Complaint The complainant alleged that during the initial pre-trial conference on June 16, 2003, the respondent asked the lawyers of the parties to approach the bench and suggested that the cases be settled because she did not want the accused (the spouses Totaan) to be administratively suspended.[2] The respondents action came after she had issued an order (dated June 9, 2003) administratively suspending the accused pendente lite. The complainant further alleged that the respondent strongly requested the complainants counsel, Atty. Stephen David, to exert all efforts to convince the complainant and his family to settle the cases. At the continuation of the pre-trial, the respondent told the counsel for the accused, I will give you the option to choose your date. Do you want a speedy trial of the cases because of the suspension? If you want it weekly, the court can accommodate you. At the same hearing, the Court directed Atty. CuiDavid to be prepared for the hearing of these cases considering that the accused have [ sic] been suspended upon motion of the Private Prosecutor.[3] Atty. Lanee Cui-David (Atty. Lanee David), wife of Private Prosecutor Stephen David, was co-counsel for complainant in the criminal cases. Their law firm, David Tamayo & Cui-David Law Offices, entered its appearance as counsel for the complainant on December 14, 2004.[4] The complainant also alleged that the respondent had been taking the cudgels for the accused with her constant reminder about her desire to fast track the cases, cautioning that the accused had been suspended at the private prosecutors instance; she only ceased talking about the suspension of the accused when Atty. Lanee David called attention to the fact that the Order of June 9, 2003 suspending the accused had not been implemented as of the January 8, 2004 hearing; the respondent then answered that it was for the prosecution to check the record to see whether the suspension order had been served and implemented.[5] The complainant bewailed the respondents inaction on the suspension order despite the counsels reminders, in contrast with her persistence in requiring Ma. Hazelina Militante (Atty. Militante), the Ombudsman Investigator (who recommended the filing of charges or information against the accused), to appear in court even after Atty. Militante had asked to be excused from testifying since the substance of her testimony could very well be covered by official documents. The respondent ignored Atty. Militantes explanation and instead directed Atty. Lanee David to furnish Atty. Militante a copy of her Order dated December 16, 2003 requiring Atty. Militante to explain why she should not be cited in contempt for failure to follow lawful orders of the court. Also, the complainant claimed that aside from showing partiality, bias, concern, sympathy and inclination in favor of the accused, the respondent humiliated Atty. Lanee David in open court; specifically, on November 3, 2003, the respondent gave the parties lawyers the option to choose the date; after Atty. Juanito Velasco, counsel for accused, gave his chosen date

(December 16, 2003), the respondent told Atty. Lanee David to make herself available on this date despite any scheduled hearing in other cases. Finally, the complainant alleged that the bias, partiality, prejudice and inclination of the respondent for the accused culminated in her order on the demurrer to evidence dated September 10, 2004[6] dismissing the charges against the accused despite the fact that the prosecution was able to prove by testimonial and documentary evidence the irregularities committed by the accused, Municipal Agrarian Reform Officer Salvador Totaan and Senior Agrarian Reform Technologist Flordeliz Totaan; they processed and approved the applications of at least thirteen (13) persons who were not qualified to become farmer-beneficiaries as they were neither farmers nor residents of the barangay or the municipality where the subject property is located, in violation of Section 23 of Republic Act No. 6657 (the Comprehensive Agrarian Reform Law). The complainant submitted to the Court the order on the demurrer to evidence and pertinent records of the case as the res under the principle of res ipsa loquitur and asked the Court to discipline the respondent even without formal investigation, in line with the Courts ruling in Consolidated Bank and Trust Company v. Capistrano.[7] The Respondents Comment The respondent submitted her comment on December 23, 2004[8] in compliance with the directive of the Office of the Court Administrator (OCA) dated November 30, 2004. The respondent pointed out that an examination of the complaint would readily show that it was prepared by the private prosecutors, Attys. Stephen David and Lanee David, who wove a tale of lies and distortions regarding the proceedings to cover up their own shortcomings as lawyers; had they performed their duty as officers of the court and members of the bar, they would have informed the complainant that they lost because of their blunders in the prosecution of the cases. While she admitted having asked both private prosecutor Stephen David and defense counsel Juanito Velasco to approach the bench at the pre-trial of the cases, she claimed that the conference with both counsels was to save Atty. Stephen David from embarrassment, as he could not answer the courts queries on the civil aspects of the case. She denied brokering a settlement of the cases; had she done so, she would not have issued the suspension order. She also denied fast-tracking the hearing of the cases in favor of the accused; her only objective was to have a weekly hearing and for this purpose, she instructed Atty. Lanee David to be prepared; it was her habit to act fast on all cases before her sala. The respondent likewise denied the charge of partiality for her failure to act on the suspension of the accused, contending that it was the duty of the private prosecutors to file a motion to cite the responsible heads of the government agencies for indirect contempt for their failure to implement lawful orders of the court. She claimed that in the absence of such motion, she assumed that the accused had already been preventively suspended. In Atty. Militantes case, the respondent explained that there was a misunderstanding between the private prosecutors and the Ombudsman Investigator; she therefore sought Atty. Militantes appearance to find out the truth. She desisted from issuing another subpoena to Atty. Militante in view of the plea of Atty. Lanee David that Atty. Militante would no longer be called as a witness; she also wanted to avoid an open confrontation between the two lawyers. Lastly, and in reply to the charge of unfair treatment, the respondent maintained that if ever she called the attention of and might have slighted Atty. Lanee David, the reason for her action was the latters appearance in court without preparation, to the prejudice of the accused and the government.

Related Incidents

In a supplemental complaint dated December 14, 2007,[9] the complainant charged the respondent with conduct unbecoming a judge for her denial of the private prosecutors motion for her inhibition on the ground that the motion did not comply with Sections 4, 5, and 6 (threeday notice rule, ten-day notice of hearing, and proof of service) of Rule 15 of the Rules of Court. The complainant claimed that the motion is non-litigable in nature and is an exception to the three-day notice rule. Thereafter, the parties filed additional pleadings the Opposition (dated January 10, 2005) to the Comment of the respondent dated December 21, 2004,[10] and a Rejoinder to the Complainants Opposition dated January 21, 2005.[11] The complainant harped on the respondents refusal to answer the serious charges of partiality, abuse of authority, and conduct unbecoming of a judge leveled against her. While the pleadings were essentially reiterative of previous allegations, they are significant because of the respondents rejoinder where she requested that the complainant be made to show cause why he should not be held in contempt of court, and Attys. Stephen David and Lanee David be required to show cause why they should not be administratively sanctioned as members of the bar and as officers of the Court pursuant to A.M. No. 03-10-01-SC.[12] In its Report dated June 2, 2005,[13] the OCA disclosed that the complainant had filed a special civil action for certiorari with the Court of Appeals (CA) raising the same issues in the complaint questioning the validity of the order granting the demurrer to evidence of the accused Totaans.[14] At the OCAs recommendation, the Court (Third Division) issued a Resolution on July 11, 2005[15] provisionally dismissing the complaint for being premature, without prejudice to the final outcome of the case with the CA (CA-G.R. SP No. 8911), and deferring action on the complaint of the respondent against Attys. Stephen and Lanee David until a decision is rendered in the CA case. The Court denied the complainants partial motion for reconsideration in a Resolution dated September 12, 2005.[16] On July 5, 2007, the respondent filed a manifestation with the information that the CA had rendered a decision in CA-G.R. SP No. 8911 denying the complainants petition.[17] On July 23, 2007, she received a copy of the CA resolution denying the complainants motion for reconsideration. The respondent reiterated her prayer that Attys. Stephen and Lanee David be sanctioned as members of the bar. In a Resolution dated June 2, 2008, the Court (Second Division) required Attys. Stephen and Lanee David to show cause why no disciplinary action should be taken against them for violation of A.M. No. 03-10-01-SC and the Code of Professional Responsibility.[18] On June 27, 2008, the respondent filed a manifestation and motion stating that the Court, in a Resolution dated January 16, 2008, denied the complainants petition for review on certiorari in G.R. No. 178703 assailing the CA decision in CA-G.R. SP No. 8911.[19] Accordingly, the respondent prayed for the permanent dismissal of the present administrative matter and requested that her complaint against Attys. Stephen and Lanee David be acted upon and given due course. On July 17, 2008, Attys. Stephen and Lanee David submitted their explanation.[20] The two lawyers disputed the respondents claim that they orchestrated the filing of the complaint. They stressed that it was the complainants decision to file the case against the respondent, in the same manner that it was his decision to prosecute the accused despite the respondents request that the complainant withdraw the cases against them. They contended that since the matter brought before the court involves conduct violating the Canons of Judicial Ethics, the final outcome on the merits of the case filed before the CA and this Court should not be determinative of the innocence or guilt of the respondent on the administrative charges against her. Attys. Stephen and Lanee David insisted that the reason the complainant filed the administrative case against the respondent is the respondents bias and favoritism towards the

accused Totaans, shown by the respondents request for Atty. Stephen David to ask his client (the complainant) to withdraw the case against the accused; after the respondent was informed of the decision of the complainant to proceed with the cases, the attitude of the respondent toward them changed and her actuations became harsh. Because of the respondents bias and favoritism towards the accused, they were compelled to move for the respondents inhibition from the case against the accused Totaans. Attys. Stephen and Lanee David further explained that the respondents complaint against them may be attributed to their zeal and enthusiasm in prosecuting their clients case; this notwithstanding, they endeavored to observe discipline and self-restraint, and to maintain their high respect for the court and for the orderly administration of justice. On July 29, 2008, the respondent filed her comment to the explanation of Attys. Stephen and Lanee David.[21] She pointed out that the comment was a mere rehash of the allegations in the complaint against her, for which reason she was repleading all her statements in her previous submissions[22] controverting the two lawyers baseless and malicious averments. On December 17, 2008, the Court (Second Division) resolved to dismiss the administrative complaint against the respondent and to require Attys. Stephen and Lanee David to show cause why they should not be disciplined or held in contempt for violating A.M. No. 03-10-01-SC.[23] In a Resolution dated June 22, 2009,[24] the Court took note of the following: 1. the manifestation filed by Attys. Stephen David and Lanee David that they were adopting the explanation they submitted pursuant to the Courts Resolution of June 2, 2008, as compliance with the Resolution dated December 17, 2008; and the manifestation and motion of the respondent that her complaint against the lawyers David be deemed submitted for resolution.

2.

On the same day, the Court referred the matter to the OCA for evaluation, report and recommendation.[25]

The OCA Report On August 13, 2009, the OCA submitted its report with the recommendation that Attys. Stephen David and Lanee David be found guilty of indirect contempt for violating A.M. No. 0310-01-SC and be fined P1,000.00 each. The OCA found that the administrative complaint against the respondent could not have been filed without the active prodding and instigation of the two lawyers. The OCA noted that the complainant never personally appeared during the hearings of Criminal Case Nos. 12726 to 12728 where Attys. Stephen and Lanee David represented him. The OCA concluded that Attys. Stephen and Lanee David were the primary sources of the allegations in the complaint which involved intricate courtroom proceedings that the complainant did not personally witness. The OCA faulted the two lawyers for their continued emphasis in their July 17, 2008 explanation on the respondents alleged questionable behavior and conduct despite the CA decision of May 31, 2007 in CA-G.R. SP No. 8911 affirming the respondents findings in her order of September 10, 2004 in Criminal Case Nos. 12726 to 12728. The Courts Ruling In view of our dismissal of the administrative complaint filed by complainant against the respondent,[26] only the issue of the liability under A.M. No. 03-10-01-SC of Attys. Stephen and Lanee David remains to be resolved.

We find the recommendation of the OCA to be in order; Attys. Stephen and Lanee David crossed the line of accepted and protected conduct as members of the bar and as officers of the court in the filing of the administrative complaint against the respondent. As the OCA noted, while the complaint was filed in the name of former Representative Juan Pablo P. Bondoc, he never really appeared in court and could not have woven the tale of unfair treatment in the complaint which spoke of intricate courtroom proceedings. The complainant thus relied primarily on the information relayed to him by his lawyers for the particulars of the complaint. More to the point, the two lawyers can reasonably be considered to have authored the allegations in their clients complaint. Nothing is inherently wrong with the complainants dependence on Attys. Stephen and Lanee David for the substance of the complaint. They were his lawyers and therefore had the duty to report to him on the proceedings in court and the progress of the cases they were handling. Nonetheless, as officers of the court, counsels are expected to be as truthful and as objective as possible in providing information to their client regarding developments in the courtroom. Needless to say, they owe candor, fairness and good faith to the court.[27] In these regards, Attys. Stephen and Lanee David proved to be wanting. A close and careful reading of the case record shows that the two lawyers made it appear in their report to their client that the respondent unduly made it difficult for Attys. Stephen and Lanee David to prosecute the criminal cases and exhibited bias and partiality for the accused. The complainant bewailed: (1) the respondents attempt to have the cases settled in an off-the-record huddle with the parties lawyers because she did not want the accused to be administratively suspended,[28] and (2) the respondents order to fast track the cases because the accused had been suspended upon motion of the private prosecutors. The complainant then narrated the instances when his lawyers were allegedly given a hard time and subjected to indignities by the respondent in her desire to fast track the criminal cases. What we see from the records, however, is a different situation that belied the complainants charges against the respondent. From the pre-trial records quoted below, we find sufficient justification for the conclusion that the information Attys. Stephen and Lanee David supplied their client was patently misleading and slanted to cover up their gross shortcomings as lawyers, as the respondent aptly put it.[29] To quote from the records of the pre-trial of November 3, 2003: COURT: No surprise in my court. You better tell the name, who will be your witness. Your cases are very serious in nature, there would be no surprise. Reveal your witnesses now. ATTY. DAVID: Because I am only a collaborating counsel in these cases. COURT: Are you not prepared? ATTY. DAVID: We will present one more witness, your Honor, because I am going to ask the complainant witness if he is ready to testify. COURT: Why did you not ask him before the pre-trial conference today? ATTY. DAVID: Actually my collaborating counsel, Atty. David, who is my husband, was the one who talked with the complainant, your Honor. COURT: So you are not prepared for the pre-trial conference today? ATTY. DAVID: I am sorry for that, your Honor. May we just request for the continuation of the pre-trial next time.

COURT: Where is your husband? ATTY. DAVID: He is not actually feeling well, your Honor, that is why I am here. COURT: You are supposed to be prepared when you appear in my Court. ATTY. DAVID: I am sorry for that, your Honor. COURT: Upon your motion, these cases had been suspended. The delay is attributable to your non-preparation. x x x

COURT: You know the Court gets peeved with this kind of manifestations from lawyers. I supposed you to be prepared, to be fair to all. ATTY. DAVID: Ill promise I will be prepared next time, your Honor. COURT: And tell your husband that he should be prepared. I will not tolerate postponements.[30]

The hearing on December 16, 2003 further disclosed: COURT: I will warn the prosecution that if you fail to present your witness on January 8, 2004, I have no qualms in dismissing the cases with prejudice. I request that the subpoena be served personally to these people as an officer of the Court. ATTY. DAVID: We will do that your Honor. x x x

COURT: Atty. Velasco, do you have any manifestation? ATTY. VELASCO: Considering the confession of the prosecution that she is not ready to present any of her witnesses this afternoon, may we move to (____)[31] the cases invoking the right of the accused to a speedy trial. COURT: I give the prosecution one last opportunity even without your motion x x x I hope this will not happen again.[32]

Based on these proceedings, we find no evidence supporting the administrative complaint against the respondent. The allegations in the complaint were unfounded and baseless and should be dismissed, as the Court did in the Resolution dated December 17, 2008.[33] Other than the bare allegations of the complainant, no proof was presented to corroborate the charge that the respondent sought to have the criminal cases settled; neither was there a showing that the respondent fast tracked the cases to favor the accused. As we already stated above, given that the complainant never appeared in court, it is reasonable to conclude that the two lawyers crafted the complaint and incorporated therein all the unfounded accusations against the respondent in order to conceal their inadequacies in the

handling of their clients cases. To say the least, the complaint was most unfair to the respondent who, as the record shows, was simply keeping faith with her avowed objective of expediting the proceedings in her court by, among other measures, requiring lawyers to be prepared at all times and to be fair and candid in their dealings with the court. The defense of Attys. Stephen and Lanee David that what they did is just a consequence of their commitment to their client x x x can hardly exculpate them.[34] As the Court held in Racines v. Judge Morallos, et al.,[35] a clients cause does not permit an attorney to cross the line between liberty and license. Lawyers must always keep in perspective that since they are administrators of justice, oath-bound servants of society, their first duty is not to their clients, as many suppose, but to the administration of justice. As a lawyer, he is an officer of the court with the duty to uphold its dignity and authority and not promote distrust in the administration of justice. In Alfonso L. Dela Victoria v. Maria Fe Orig-Maloloy-on,[36] we had occasion to state: Lawyers are required to act with the highest standard of truthfulness, fair play and nobility in the conduct of their litigation and their relations with their clients, the opposing parties, the other counsel and the courts. Attys. Stephen and Lanee David miserably failed to come up to the standards of these rulings. Accordingly, they are liable under A.M. No. 03-10-01-SC and should be held in indirect contempt under Section 3, Rule 71 of the Rules of Court. Considering that they have no previous derogatory record, we deem a fine of P2,500.00 each to be the appropriate penalty for their infraction. WHEREFORE, premises considered, we hereby declare Attys. Stephen L. David and Lanee S. Cui-David GUILTY of Indirect Contempt for violation of A.M. No. 03-10-01-SC, and accordingly impose on each of them the FINE of Two Thousand Five Hundred Pesos (P2,500.00) with the STERN WARNING that a commission of a similar offense shall be dealt with more severely. SO ORDERED.

ARELLANO UNIVERSITY, INC. Complainant, vs. ATTY. LEOVIGILDO H. MIJARES III, Respondent. [A.C. No. 8380, November 20, 2009] DECISION PER CURIAM: This disbarment case is about the need for a lawyer to account for funds entrusted to him by his client. The Facts and the Case The facts are taken from the record of the case and the report and recommendation of the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP). Sometime in January 2004, complainant Arellano University, Inc. (the University) engaged the services of respondent Leovigildo H. Mijares III, a member of the Bar, for securing a certificate of title covering a dried up portion of the Estero de San Miguel that the University had been occupying. The property was the subject of a Deed of Exchange dated October 1, 1958 between the City of Manila and the University. In its complaint for disbarment against Mijares, the University alleged that it gave him all the documents he needed to accomplish his work. Later, Mijares asked the University for and was given P500,000.00 on top of his attorneys fees, supposedly to cover the expenses for "facilitation and processing." He in turn promised to give the money back in case he was unable to get the work done. On July 5, 2004 Mijares informed the University that he already completed Phase I of the titling of the property, meaning that he succeeded in getting the Metro Manila Development Authority (MMDA) to approve it and that the documents had already been sent to the Department of Environment and Natural Resources (DENR). The University requested Mijares for copies of the MMDA approval but he unjustifiably failed to comply despite his clients repeated demands. Then he made himself scarce, prompting the University to withdraw all the cases it had entrusted to him and demand the return of the P500,000.00 it gave him. On November 23, 2005 the University wrote Mijares by registered letter, formally terminating his services in the titling matter and demanding the return of the P500,000.00. But the letter could not be served because he changed office address without telling the University. Eventually, the University found his new address and served him its letter on January 2, 2006. Mijares personally received it yet he did not return the money asked of him. In his answer to the complaint, Mijares alleged that he and the University agreed on a number of courses of action relating to the project assigned to him: first, get the Universitys application for a survey plan which the DENR-NCR approved for a "facilitation cost" of P500,000.00; second, get a favorable MMDA endorsement for a "facilitation cost" of another P500,000.00; and, third, the titling of the property by the Land Registration Authority for a "facilitation cost" of still another P500,000.00. Mijares also alleged that the DENR-NCR Assistant Regional Director told him that he needed to get a favorable endorsement from MMDA and that the person to talk to about it was Undersecretary Cesar Lacuna. Mijares later met the latter through a common friend. At their meeting, Mijares and Lacuna allegedly agreed on what the latter would get for recommending approval of the application. Later, Mijares said, he gave the P500,000.00 to Lacuna through their common friend on Lacunas instruction.

Mijares next alleged that, after he received the money, Lacuna told him that the University filed an identical application earlier on March 15, 2002. Mijares claimed that the University deliberately withheld this fact from him. Lacuna said that, because of the denial of that prior application, he would have difficulty recommending approval of the present application. It appeared that Lacuna endorsed the previous application to the Mayor of Manila on July 23, 2003 but the latter did not act on it. Mijares finally alleged that he and Lacuna wanted to bypass the Mayor of Manila in the paper work but they were unable to arrive at a concrete plan. Mijares claimed that the University gave him only P45,000.00 as his fees and that it was with the Universitys conformity that he gave the P500,000.00 to Lacuna. The IBP designated Atty. Dennis B. Funa as Commissioner to conduct a formal investigation of the complaint. Despite numerous settings, however, Mijares failed to appear before the Commissioner and adduce evidence in his defense. On October 17, 2008 Commissioner Funa submitted his Report and Recommendation1 in the case to the Integrated Bar of the Phillippines Board of Governors. The Report said that the University did not authorize Mijares to give P500,000.00 to the then MMDA Deputy Chairman Cesar Lacuna; that Mijares had been unable to account for and return that money despite repeated demands; and that he admitted under oath having bribed a government official. Commissioner Funa recommended a) that Mijares be held guilty of violating Rules 1.01 and 1.02, Canon 15, Rule 15.05, Canon 16, Rules 16.01 and 16.03, and Canon 18, Rule 18.04 of the Code of Professional Responsibility and meted out the penalty of disbarment; b) that he be ordered to return the P500,000.00 and all the pertinent documents to the University; and c) that Mijares sworn statement that formed part of his Answer be endorsed to the Office of the Ombudsman for investigation and, if warranted, for prosecution with respect to his shady dealing with Deputy Chairman Lacuna. On December 11, 2008 the IBP Board of Governors passed Resolution XVIII-2008-631, adopting and approving the Investigating Commissioners recommendation but modifying the penalty from disbarment to indefinite suspension from the practice of law and ordering Mijares to return the P500,000.00 and all pertinent documents to the University within six months from receipt of the Courts decision.2 The Question Presented The only question presented in this case is whether or not respondent Mijares is guilty of misappropriating theP500,000.00 that his client, the University, entrusted to him for use in facilitating and processing the titling of a property that it claimed. The Courts Ruling Section 27, Rule 138 of the Revised Rules of Court provides for the disbarment or suspension of a lawyer for the following: (1) deceit; (2) malpractice; (3) gross misconduct in office; (4) grossly immoral conduct; (5) conviction of a crime involving moral turpitude; (6) violation of the lawyers oath; (7) willful disobedience of any lawful order of a superior court; and (8) willfully appearing as an attorney for a party without authority to do so.3 Every lawyer has the responsibility to protect and advance the interests of his client such that he must promptly account for whatever money or property his client may have entrusted to him. As a mere trustee of said money or property, he must hold them separate from that of his own and make sure that they are used for their intended purpose. If not used, he must return the money or property immediately to his client upon demand, otherwise the lawyer shall be presumed to have misappropriated the same in violation of the trust reposed on him.4 A lawyers conversion of funds entrusted to him is a gross violation of professional ethics.5

Here, respondent Mijares chose not to be heard on his evidence. Technically, the only evidence on record that the Court can consider is the Universitys evidence that he got P500,000.00 from complainant for expenses in facilitating and processing its title application; that he undertook to return the money if he did not succeed in his purpose; that he falsely claimed having obtained the MMDA approval of the application; and that he nonetheless refused to return the money despite repeated demands. Unopposed, this evidence supports the finding of guilt of the Investigating Commissioner and the IBP Board of Governors. Besides, even if the Court were to consider the defense that Mijares laid out in his answer, the same does not rouse sympathy. He claims that he gave the P500,000.00 to Undersecretary Lacuna, with the Universitys conformity, for a favorable MMDA endorsement to the Mayor of Manila. He also claims that, in a complete turnaround, Lacuna later said that he could not provide the endorsement because, as it turned out, the MMDA had previously given such endorsement of the Universitys earlier application and the Mayor of Manila did not act on that endorsement. But, if this were so, there was no reason for Mijares not to face the University and make it see that it had no cause for complaint, having given him clearance to pass on the P500,000.00 to Lacuna. Instead, Mijares kept silent. He did not deny that the University went all over town looking for him after he could not return the money. Nor did he take any action to compel Lacuna to hand back the money that the University gave him. More, his not showing up to testify on his behalf at the investigation of the case is a dead giveaway of the lack of merit of his defense. No evidence exists to temper the doom that he faces. Even more unfortunate for Mijares, he admitted under oath having bribed a government official to act favorably on his clients application to acquire title to a dried-up creek. That is quite dishonest. The Court is not, therefore, inclined to let him off with the penalty of indefinite suspension which is another way of saying he can resume his practice after a time if he returns the money and makes a promise to shape up.1avvphi1 The Court is also not inclined to go along with the IBPs recommendation that the Court include in its decision an order directing Mijares to return the P500,000.00 that the University entrusted to him. The University knowingly gave him that money to spend for "facilitation" and processing. It is not nave. There is no legitimate expense called "facilitation" fee. This term is a deodorized word for bribe money. The Court will not permit the conversion of a disbarment proceeding into a remedy for recovering bribe money lost in a bad deal. WHEREFORE, the Court finds respondent Leovigildo H. Mijares III, a member of the Bar, GUILTY of violation of Rules 1.01 and 1.02, Canon 15, Rule 15.05, Canon 16, Rules 16.01 and 16.03, and Canon 18, Rule 18.04 of the Code of Professional Responsibility and imposes on him the penalty of DISBARMENT. He is, in addition, directed to return to complainant Arellano University, Inc. all the documents in his possession covering the titling matter that it referred to him. Let the sworn statement of respondent Mijares, forming his Answer, be forwarded to the Office of the Ombudsman for whatever action it deems proper under the circumstances. SO ORDERED.

EN BANC HON. HEHERSON ALVAREZ substituted by HON. ELISEA G. GOZUN, in her capacity as Secretary of the Department of Environment and Natural Resources, Petitioner, - versus PICOP RESOURCES, INC., Respondent. x - - - - - - - - - - - - - - - - - - - - - - - - -x PICOP RESOURCES, INC., Petitioner, - versus HON. HEHERSON ALVAREZ substituted by HON. ELISEA G. GOZUN, in her capacity as Secretary of the Department of Environment and Natural Resources Respondent. x-----------------------x THE HON. ANGELO T. REYES (formerly Hon. Elisea G. Gozun), in his capacity as Secretary of the Department of Environment and Natural Resources (DENR), Petitioner, G.R. No. 164516 G.R. No. 162243

G.R. 171875 - versus Present:

No.

PAPER INDUSTRIES CORP. OF THEPHILIPPINES (PICOP), Respondent.

PUNO, C.J., CARPIO, CORONA, CARPIO MORALES, CHICONAZARIO, VELASCO, JR., NACHURA,* LEONARDODE CASTRO, BRION, PERALTA, BERSAMIN, DELCASTILLO , ABAD, and VILLARAMA, JR., JJ., Promulgated:

December 3, 2009 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

RESOLUTION

CHICO-NAZARIO, J.:

The cause of action of PICOP Resources, Inc. (PICOP) in its Petition for Mandamus with the trial court is clear: the government is bound by contract, a 1969 Document signed by then President Ferdinand Marcos, to enter into an Integrated Forest Management Agreement (IFMA) with PICOP. Since the remedy of mandamus lies only to compel an officer to perform a ministerial duty, and since the 1969 Document itself has a proviso requiring compliance with the laws and the Constitution, the issues in this Motion for Reconsideration are the following: (1) firstly, is the 1969 Document a contract enforceable under the Non-Impairment Clause of the Constitution, so as to make the signing of the IFMA a ministerial duty? (2) secondly, did PICOP comply with all the legal and constitutional requirements for the issuance of an IFMA? To recall, PICOP filed with the Department of Environment and Natural Resources (DENR) an application to have its Timber License Agreement (TLA) No. 43 converted into an IFMA. In the middle of the processing of PICOPs application, however, PICOP refused to attend further meetings with the DENR. Instead, on 2 September 2002, PICOP filed before the Regional Trial Court (RTC) of Quezon City a Petition for Mandamus[1] against then DENR Secretary Heherson T. Alvarez. PICOP seeks the issuance of a privileged writ of mandamus to compel the DENR Secretary to sign, execute and deliver an IFMA to PICOP, as well as to [I]ssue the corresponding IFMA assignment number on the area covered by the IFMA, formerly TLA No. 43, as amended; b) to issue the necessary permit allowing petitioner to act and harvest timber from the said area of TLA No. 43, sufficient to meet the raw material requirements of petitioners pulp and paper mills in accordance with the warranty and agreement of July 29, 1969 between the government and PICOPs predecessor-in-interest; and c) to honor and respect the Government Warranties and contractual obligations to PICOP strictly in accordance with the warranty and agreement dated July 29, [1969] between the government and PICOPs predecessor-in-interest. x x x.[2] On 11 October 2002, the RTC rendered a Decision granting PICOPs Petition for Mandamus, thus: WHEREFORE, premises considered, the Petition for Mandamus is hereby GRANTED. The Respondent DENR Secretary Hon. Heherson Alvarez is hereby ordered: 1. to sign, execute and deliver the IFMA contract and/or documents to PICOP and issue the corresponding IFMA assignment number on the area covered by the IFMA, formerly TLA No. 43, as amended; to issue the necessary permit allowing petitioner to act and harvest timber from the said area of TLA No. 43, sufficient to meet the raw material requirements of petitioners pulp and paper mills in

2.

accordance with the warranty and agreement of July 29, 1969 between the government and PICOPs predecessor-in-interest; and 3. to honor and respect the Government Warranties and contractual obligations to PICOP strictly in accordance with the warranty and agreement dated July 29, 1999 (sic) between the government and PICOPs predecessor-in-interest (Exhibits H, H-1 to H-5, particularly the following: a) the area coverage of TLA No. 43, which forms part and parcel of the government warranties; PICOP tenure over the said area of TLA No. 43 and exclusive right to cut, collect and remove sawtimber and pulpwood for the period ending on April 26, 1977; and said period to be renewable for [an]other 25 years subject to compliance with constitutional and statutory requirements as well as with existing policy on timber concessions; and The peaceful and adequate enjoyment by PICOP of the area as described and specified in the aforesaid amended Timber License Agreement No. 43.

b)

c)

The Respondent Secretary Alvarez is likewise ordered to pay petitioner the sum of P10 million a month beginning May 2002 until the conversion of TLA No. 43, as amended, to IFMA is formally effected and the harvesting from the said area is granted.[3] On 25 October 2002, the DENR Secretary filed a Motion for Reconsideration.[4] In a 10 February 2003 Order, the RTC denied the DENR Secretarys Motion for Reconsideration and granted PICOPs Motion for the Issuance of Writ of Mandamus and/or Writ of Mandatory Injunction.[5] The fallo of the 11 October 2002 Decision was practically copied in the 10 February 2003 Order, although there was no mention of the damages imposed against then DENR Secretary Alvarez.[6] The DENR Secretary filed a Notice of Appeal[7] from the 11 October 2002 Decision and the 10 February 2003 Order. On 19 February 2004, the Seventh Division of the Court of Appeals affirmed[8] the Decision of the RTC, to wit: WHEREFORE, the appealed Decision is hereby AFFIRMED with modification that the order directing then DENR Secretary Alvarez to pay petitioner-appellee the sum of P10 million a month beginning May, 2002 until the conversion to IFMA of TLA No. 43, as amended, is formally effected and the harvesting from the said area is granted is hereby deleted. [9] Challenging the deletion of the damages awarded to it, PICOP filed a Motion for Partial Reconsideration[10] of this Decision, which was denied by the Court of Appeals in a 20 July 2004 Resolution.[11] The DENR Secretary and PICOP filed with this Court separate Petitions for Review of the 19 February 2004 Court of Appeals Decision. These Petitions were docketed as G.R. No. 162243 and No. 164516, respectively. These cases were consolidated with G.R. No. 171875, which relates to the lifting of a Writ of Preliminary Injunction enjoining the execution pending appeal of the foregoing Decision.

On 29 November 2006, this Court rendered the assailed Decision on the Consolidated Petitions: WHEREFORE, the Petition in G.R. No. 162243 is GRANTED. The Decision of the Court of Appeals insofar as it affirmed the RTC Decision granting the Petition for Mandamus filed by Paper Industries Corp. of the Philippines (PICOP) is hereby REVERSED and SET ASIDE. The Petition in G.R. No. 164516 seeking the reversal of the same Decision insofar as it nullified the award of damages in favor of PICOP is DENIED for lack of merit. The Petition in G.R. No. 171875, assailing the lifting of the Preliminary Mandatory Injunction in favor of the Secretary of Environment and Natural Resources is DISMISSED on the ground of mootness.[12]

On 18 January 2006, PICOP filed the instant Motion for Reconsideration, based on the following grounds: I. THE HONORABLE COURT ERRED IN HOLDING THAT THE CONTRACT WITH PRESIDENTIAL WARRANTY SIGNED BY THE PRESIDENT OF THE REPUBLIC ON 29 JUNE 1969ISSUED TO PICOP IS A MERE PERMIT OR LICENSE AND IS NOT A CONTRACT, PROPERTY OR PROPERTY RIGHT PROTECTED BY THE DUE PROCESS CLAUSE OF THE CONSTITUTION

II. THE EVALUATION OF PICOPS MANAGEMENT OF THE TLA 43 NATURAL FOREST CLEARLY SHOWED SATISFACTORY PERFORMANCE FOR KEEPING THE NATURALFOREST GENERALLY INTACT AFTER 50 YEARS OF FOREST OPERATIONS. THIS COMPLETES THE REQUIREMENT FOR AUTOMATIC CONVERSION UNDER SECTION 9 OF DAO 99-53.

III. WITH DUE RESPECT, THE HONORABLE COURT, IN REVERSING THE FINDINGS OF FACTS OF THE TRIAL COURT AND THE COURT OF APPEALS, MISAPPRECIATED THE EVIDENCE, TESTIMONIAL AND DOCUMENTARY, WHEN IT RULED THAT:

i. PICOP FAILED TO SUBMIT A FIVEYEAR FOREST PROTECTION PLAN AND A SEVEN-YEAR REFORESTATION PLAN FOR THE YEARS UNDER REVIEW. ii. PICOP FAILED TO COMPLY WITH THE PAYMENT OF FOREST CHARGES.

iii. PICOP DID NOT COMPLY WITH THE REQUIREMENT FOR A CERTIFICATION FROM THE NCIP THAT THE AREA OF TLA 43 DOES NOT OVERLAP WITH ANY ANCESTRAL DOMAIN.

iv. PICOP FAILED TO HAVE PRIOR CONSULTATION WITH AND APPROVAL FROM THE SANGUNIAN CONCERNED, AS REQUIRED BY SECTION 27 OF THE REPUBLIC ACT NO. 7160, OTHERWISE KNOWN AS THE LOCAL GOVERNMENT CODE OF 1991.

v. PCIOP FAILED TO SECURE SOCIAL ACCEPTABILITY UNDER PRESIDENTIAL DECREE NO. 1586. IV THE MOTIVATION OF ALVAREZ IN RECALLING THE CLEARANCE FOR AUTOMATIC CONVERSION HE ISSUED ON 25 OCTOBER 2001 WAS NOT DUE TO ANY SHORTCOMING FROM PICOP BUT DUE TO HIS DETERMINATION TO EXCLUDE 28,125 HECTARES FROM THE CONVERSION AND OTHER THINGS.

On 15 December 2008, on Motion by PICOP, the Third Division of this Court resolved to refer the consolidated cases at bar to the Court en banc. On 16 December 2008, this Court sitting en banc resolved to accept the said cases and set them for oral arguments. Oral arguments were conducted on 10 February 2009. PICOPs Cause of Action: Matters PICOP Should Have Proven to Be Entitled to a Writ of Mandamus

In seeking a writ of mandamus to compel the issuance of an IFMA in its favor, PICOP relied on a 29 July 1969 Document, the so-called Presidential Warranty approved by then President Ferdinand E. Marcos in favor of PICOPs predecessor-in-interest, Bislig Bay Lumber Company, Inc. (BBLCI). PICOPs cause of action is summarized in paragraphs 1.6 and 4.19 of its Petition for Mandamus: 1.6 Respondent Secretary impaired the obligation of contract under the said Warranty and Agreement of 29 July 1969 by refusing to respect the tenure; and its renewal for another twenty five (25) years, of PICOP over the area covered by the said Agreement which consists of permanent forest lands with an aggregate area of 121,587 hectares and alienable and disposable lands with an aggregate area of approximately 21,580 hectares, and petitioners exclusive right to cut, collect and remove sawtimber and pulpwood therein and the peaceful and adequate enjoyment of the said area as described and specified in petitioners Timber License Agreement (TLA) No. 43 guaranteed by the Government, under the Warranty and Agreement of 29 July 1969.[13]

4.19 Respondent is in violation of the Constitution and has impaired the obligation of contract by his refusal to respect: a) the tenurial rights of PICOP over the forest area covered by TLA No. 43, as amended and its renewal for another twenty five (25) years; b) the exclusive right of PICOP to cut, collect and remove sawtimber and pulpwood therein; and c) PICOPs peaceful and adequate enjoyment of the said area which the government guaranteed under the Warranty and Agreement of 29 July 1969.[14]

The grounds submitted by PICOP in its Petition for Mandamus are as follows: I Respondent secretary has unlawfully refused and/or neglected to sign and execute the IFMA contract of PICOP even as the latter has complied with all the legal requirements for the automatic conversion of TLA No. 43, as amended, into an IFMA. II Respondent Secretary acted with grave abuse of discretion and/or in excess of jurisdiction in refusing to sign and execute PICOPs IFMA contract, notwithstanding that PICOP had complied with all the requirements for Automatic Conversion under DAO 99-53, as in fact Automatic Conversion was already cleared in October, 2001, and was a completed process. III Respondent Secretary has impaired the obligation of contract under a valid and binding warranty and agreement of 29 July 1969 between the government and PICOPs predecessor-in-interest, by refusing to respect: a) the tenure of PICOP, and its renewal for another twenty five (25) years, over the TLA No.43 area covered by said agreement; b) the exclusive right to cut, collect and remove sawtimber and pulpwood timber; and c) the peaceful and adequate enjoyment of the said area. IV As a result of respondent Secretarys unlawful refusal and/or neglect to sign and deliver the IFMA contract, and violation of the constitutional rights of PICOP against non-impairment of the obligation of contract (Sec. 10, Art. III, 1997 [sic] Constitution), PICOP suffered grave and irreparable damages.[15]

Petitions for Mandamus are governed by Rule 65 of the Rules of Court, Section 3 of which provides: SEC. 3. Petition for mandamus.When any tribunal, corporation, board, officer or person 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, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect

the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent. (Emphasis supplied.)

PICOP is thus asking this Court to conclude that the DENR Secretary is specifically enjoined by law to issue an IFMA in its favor. An IFMA, as defined by DENR Administrative Order (DAO) No. 99-53,[16] is [A] production-sharing contract entered into by and between the DENR and a qualified applicant wherein the DENR grants to the latter the exclusive right to develop, manage, protect and utilize a specified area of forestland and forest resource therein for a period of 25 years and may be renewed for another 25-year period, consistent with the principle of sustainable development and in accordance with an approved CDMP, and under which both parties share in its produce.[17] PICOP stresses the word automatic in Section 9 of this DAO No. 99-53: Sec. 9. Qualifications of Applicants. The applicants for IFMA shall be: (a) A Filipino citizen of legal age; or, (b) Partnership, cooperative or corporation whether public or private, duly registered under Philippine laws. However, in the case of application for conversion of TLA into IFMA, an automatic conversion after proper evaluation shall be allowed, provided the TLA holder shall have signified such intention prior to the expiry of the TLA, PROVIDED further, that the TLA holder has showed satisfactory performance and have complied in the terms of condition of the TLA and pertinent rules and regulations. (Emphasis supplied.)[18]

This administrative regulation provision allowing automatic conversion after proper evaluation can hardly qualify as a law, much less a law specifically enjoining the execution of a contract. To enjoin is to order or direct with urgency; to instruct with authority; to command.[19] Enjoin is a mandatory word, in legal parlance, always; in common parlance, usually.[20] The word allow, on the other hand, is not equivalent to the word must, and is in no sense a command.[21] As an extraordinary writ, the remedy of mandamus lies only to compel an officer to perform a ministerial duty, not a discretionary one; mandamus will not issue to control the exercise of discretion of a public officer where the law imposes upon him the duty to exercise his judgment in reference to any manner in which he is required to act, because it is his judgment that is to be exercised and not that of the court.[22] The execution of agreements, in itself, involves the exercise of discretion. Agreements are products of negotiations and mutual concessions, necessitating evaluation of their provisions on the part of both parties. In the case of the IFMA, the evaluation on the part of the government is specifically mandated in the afore-quoted Section 3 of DAO No. 99-53. This evaluation necessarily involves the exercise of discretion and judgment on the part of the DENR Secretary, who is tasked not only to negotiate the sharing of the profit arising from the IFMA, but also to evaluate the compliance with the requirements on the part of the applicant. Furthermore, as shall be discussed later, the period of an IFMA that was merely automatically converted from a TLA in accordance with Section 9, paragraph 2 of DAO No. 99-

53 would only be for the remaining period of the TLA. Since the TLA of PICOP expired on 26 April 2002, the IFMA that could have been granted to PICOP via the automatic conversion provision in DAO No. 99-53 would have expired on the same date, 26 April 2002, and the PICOPs Petition for Mandamus would have become moot. This is where the 1969 Document, the purported Presidential Warranty, comes into play. When PICOPs application was brought to a standstill upon the evaluation that PICOP had yet to comply with the requirements for such conversion, PICOP refused to attend further meetings with the DENR and instead filed a Petition for Mandamus, insisting that the DENR Secretary had impaired the obligation of contract by his refusal to respect: a) the tenurial rights of PICOP over the forest area covered by TLA No. 43, as amended, and its renewal for another twenty-five (25) years; b) the exclusive right of PICOP to cut, collect and remove sawtimber and pulpwood therein; and c) PICOPs peaceful and adequate enjoyment of the said area which the government guaranteed under the Warranty and Agreement of 29 July 1969. [23] PICOP is, thus, insisting that the government is obligated by contract to issue an IFMA in its favor because of the 1969 Document. A contract, being the law between the parties, can indeed, with respect to the State when it is a party to such contract, qualify as a law specifically enjoining the performance of an act. Hence, it is possible that a writ of mandamus may be issued to PICOP, but only if it proves both of the following: 1) That the 1969 Document is a contract recognized under the non-impairment clause; and 2) That the 1969 Document specifically enjoins the government to issue the IFMA. If PICOP fails to prove any of these two matters, the grant of a privileged writ of mandamus is not warranted. This was why we pronounced in the assailed Decision that the overriding controversy involved in the Petition was one of law.[24] If PICOP fails to prove any of these two matters, more significantly its assertion that the 1969 Document is a contract, PICOP fails to prove its cause of action.[25] Not even the satisfactory compliance with all legal and administrative requirements for an IFMA would save PICOPs Petition for Mandamus. The reverse, however, is not true. The 1969 Document expressly states that the warranty as to the tenure of PICOP is subject to compliance with constitutional and statutory requirements as well as with existing policy on timber concessions. Thus, if PICOP proves the two above-mentioned matters, it still has to prove compliance with statutory and administrative requirements for the conversion of its TLA into an IFMA. Exhaustion of Administrative Remedies PICOP uses the same argument that the government is bound by contract to issue the IFMA in its refusal to exhaust all administrative remedies by not appealing the alleged illegal non-issuance of the IFMA to the Office of the President. PICOP claimed in its Petition for Mandamus with the trial court that: 1.10 This petition falls as an exception to the exhaustion of administrative remedies. The acts of respondent DENR Secretary complained of in this petition are patently illegal; in derogation of the constitutional rights of petitioner against non-impairment of the obligation of contracts; without jurisdiction, or in excess of jurisdiction or so capriciously as to constitute an abuse of discretion amounting to excess or lack of jurisdiction; and moreover, the failure or refusal of a high government official such as a Department head from whom relief is brought to act on the matter was considered equivalent to exhaustion of administrative remedies (Sanoy v. Tantuico, 50 SCRA 455 [1973]), and there are

compelling and urgent reasons for judicial intervention (Bagatsing v. Ramirez, 74 SCRA 306 [1976]).

Thus, if there has been no impairment of the obligation of contracts in the DENR Secretarys non-issuance of the IFMA, the proper remedy of PICOP in claiming that it has complied with all statutory and administrative requirements for the issuance of the IFMA should have been with the Office of the President. This makes the issue of the enforceability of the 1969 Document as a contract even more significant. The Nature and Effects of the Purported 29 July 1969 Presidential Warranty

Base Metals Case

PICOP challenges our ruling that the 1969 Document is not a contract. Before we review this finding, however, it must be pointed out that one week after the assailed Decision, another division of this Court promulgated a Decision concerning the very same 1969 Document. Thus, in PICOP Resources, Inc. v. Base Metals Mineral Resources Corporation,[26] five other Justices who were still unaware of this Divisions Decision,[27] came up with the same conclusion as regards the same issue of whether former President Marcoss Presidential Warranty is a contract: Finally, we do not subscribe to PICOPs argument that the Presidential Warranty dated September 25, 1968 is a contract protected by the non-impairment clause of the 1987 Constitution. An examination of the Presidential Warranty at once reveals that it simply reassures PICOP of the governments commitment to uphold the terms and conditions of its timber license and guarantees PICOPs peaceful and adequate possession and enjoyment of the areas which are the basic sources of raw materials for its wood processing complex. The warranty covers only the right to cut, collect, and remove timber in its concession area, and does not extend to the utilization of other resources, such as mineral resources, occurring within the concession. The Presidential Warranty cannot be considered a contract distinct from PTLA No. 47 and FMA No. 35. We agree with the OSGs position that it is merely a collateral undertaking which cannot amplify PICOPs rights under its timber license. Our definitive ruling in Oposa v. Factoran that a timber license is not a contract within the purview of the non-impairment clause is edifying. We declared: Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract, property or a property right protected by the due process clause of the Constitution. InTan vs. Director of Forestry, this Court held: "x x x A timber license is an instrument by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. A timber license is not a contract within the purview of the due process clause; it is only a license or a privilege, which can be validly withdrawn whenever dictated by public interest or public welfare as in this case.

A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract between the authority, federal, state, or municipal, granting it and the person to whom it is granted; neither is it a property or a property right, nor does it create a vested right; nor is it taxation' (C.J. 168). Thus, this Court held that the granting of license does not create irrevocable rights, neither is it property or property rights (People vs. Ong Tin, 54 O.G. 7576). x x x" We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: "x x x Timber licenses, permits and license agreements are the principal instruments by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. And it can hardly be gainsaid that they merely evidence a privilege granted by the State to qualified entities, and do not vest in the latter a permanent or irrevocable right to the particular concession area and the forest products therein. They may be validly amended, modified, replaced or rescinded by the Chief Executive when national interests so require. Thus, they are not deemed contracts within the purview of the due process of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No.L-24548, October 27, 1983, 125 SCRA 302]." Since timber licenses are not contracts, the non-impairment clause, which reads: "SEC. 10. No law impairing the obligation of contracts shall be passed. cannot be invoked. The Presidential Warranty cannot, in any manner, be construed as a contractual undertaking assuring PICOP of exclusive possession and enjoyment of its concession areas. Such an interpretation would result in the complete abdication by the State in favor of PICOP of the sovereign power to control and supervise the exploration, development and utilization of the natural resources in the area.[28]

The Motion for Reconsideration was denied with finality on 14 February 2007. A Second Motion for Reconsideration filed by PICOP was denied on 23 May 2007. PICOP insists that the pronouncement in Base Metals is a mere obiter dictum, which would not bind this Court in resolving this Motion for Reconsideration. In the oral arguments, however, upon questioning from the ponente himself of Base Metals, it was agreed that the issue of whether the 1969 Document is a contract was necessary in the resolution of Base Metals:

JUSTICE TINGA: And do you confirm that one of the very issues raised by PICOP in that case [PICOP Resources Inc. v. Base Metal Mineral Resources Corporation] revolves around its claim that a Presidential Warranty is protected by the nonimpairment c[l]ause of the Constitution. ATTY. AGABIN: Yes, I believe that statement was made by the Court, your Honor. JUSTICE TINGA: Yes. And that claim on the part of PICOP necessarily implies that the Presidential Warranty according to PICOP is a contract protected by the nonimpairment clause. ATTY. AGABIN: Yes, Your Honor. JUSTICE TINGA: Essentially, the PICOP raised the issue of whether the Presidential Warranty is a contract or not. ATTY. AGABIN: Yes, Your Honor. JUSTICE TINGA: And therefore any ruling on the part of the Court on that issue could not be an obiter dictum. ATTY. AGABIN: Your Honor, actually we believe that the basic issue in that case was whether or not Base Metals could conduct mining activities underneath the forest reserve allotted to PICOP and the Honorable Court ruled that the Mining Act of 1995 as well as the Department Order of DENR does not disallow mining activity under a forest reserve. JUSTICE TINGA: But it was PICOP itself which raised the claim that a Presidential Warranty is a contract. And therefore be, should be protected on the under the non-impairment clause of the Constitution. ATTY. AGABIN: Yes, Your Honor. Except that JUSTICE TINGA:

So, how can you say now that the Court merely uttered, declared, laid down an obiter dictum in saying that the Presidential Warranty is not a contract, and it is not being a contract, it is not prohibited by the non-impairment clause. ATTY. AGABIN: This Honorable Court could have just ruled, held that the mining law allows mining activities under a forest reserve without deciding on that issue that was raised by PICOP, your Honor, and therefore we believe. JUSTICE TINGA: It could have been better if PICOP has not raised that issue and had not claimed that the Presidential Warranty is not a contract. ATTY. AGABIN: Well, that is correct, your Honor except that the Court could have just avoided that question. Because JUSTICE TINGA: Why[?] ATTY. AGABIN: It already settled the issue, the basic issue. JUSTICE TINGA: Yes, because the Court in saying that merely reiterated a number of rulings to the effect that the Presidential Warranty, a Timber License for that matter is not a contract protected by the non-impairment laws. ATTY. AGABIN: Well, it is our submission, your Honor, that it is obiter because, that issue even a phrase by PICOP was not really fully argued by the parties for the Honorable Court and it seems from my reading at least it was just an aside given by the Honorable Court to decide on that issue raised by PICOP but it was not necessary to the decision of the court. JUSTICE TINGA: It was not necessary[?] ATTY. AGABIN: To the decision of the Court. JUSTICE TINGA: It was. ATTY. AGABIN: It was not necessary.

JUSTICE TINGA: It was. ATTY. AGABIN: Yes. JUSTICE TINGA: And PICOP devoted quite a number of pages in [its] memorandum to that issue and so did the Court [in its Decision]. ATTY. AGABIN: Anyway, your Honor, we beg the Court to revisit, not to[29]

Interpretation of the 1969 Document That Would Be in Harmony with the Constitution

To remove any doubts as to the contents of the 1969 Document, the purported Presidential Warranty, below is a complete text thereof: Republic of the Philippines Department of Agriculture and Natural Resources OFFICE OF THE SECRETARY Diliman, Quezon City

D-53, Licenses (T.L.A. No. 43) Bislig Bay Lumber Co., Inc. (Bislig, Surigao) July 29, 1969 Bislig Bay Lumber Co., Inc. [unreadable word] Bldg. Makati, Rizal S i r s: This has reference to the request of the Board of Investments through its Chairman in a letter dated July 16, 1969 for a warranty on the boundaries of your concession area under Timber License Agreement No. 43, as amended. We are made to understand that your company is committed to support the first large scale integrated wood processing complex hereinafter called: The Project) and that such support will be provided not only in the form of the supply of pulpwood and other wood materials from your concession but also by making available funds generated out of your own operations, to supplement PICOPs operational sources of funds and other financial arrangements made by him. In order that your company may provide such support effectively, it is understood that you will call upon your stockholders to take such steps as may be necessary

to effect a unification of managerial, technical, economic and manpower resources between your company and PICOP. It is in the public interest to promote industries that will enhance the proper conservation of our forest resources as well as insure the maximum utilization thereof to the benefit of the national economy. The administration feels that the PICOP project is one such industry which should enjoy priority over the usual logging operations hitherto practiced by ordinary timber licensees: For this reason, we are pleased to consider favorably the request. We confirm that your Timber License Agreement No. 43, as amended (copy of which is attached as Annex A hereof which shall form part and parcel of this warranty) definitely establishes the boundary lines of your concession area which consists of permanent forest lands with an aggregate area of 121,587 hectares and alienable or disposable lands with an aggregate area of approximately 21,580 hectares. We further confirm that your tenure over the area and exclusive right to cut, collect and remove sawtimber and pulpwood shall be for the period ending on April 26, 1977; said period to be renewable for other 25 years subject to compliance with constitutional and statutory requirements as well as with existing policy on timber concessions. The peaceful and adequate enjoyment by you of your area as described and specified in your aforesaid amended Timber License Agreement No. 43 is hereby warranted provided that pertinent laws, regulations and the terms and conditions of your license agreement are observed. Very truly yours, (Sgd.) FERNANDO LOPEZ Secretary of Agriculture and Natural Resources Encl.: RECOMMENDED BY: (Sgd.) JOSE VIADO Acting Director of Forestry APPROVED: (Sgd.) FERDINAND E. MARCOS President of the Philippines

ACCEPTED: BISLIG BAY LBR. CO., INC. By: (Sgd.) JOSE E. SORIANO President

PICOP interprets this document in the following manner: 6.1 It is clear that the thrust of the government warranty is to establish a particular area defined by boundary lines of TLA No. 43 for the PICOP Project. In consideration for PICOPs commitment to pursue and establish the project requiring huge investment/funding from stockholders and lending institutions, the government provided a warranty that ensures the continued and exclusive right of PICOP to source its raw materials needs from the forest and renewable trees within the areas established. 6.2 As a long-term support, the warranty covers the initial twenty five (25) year period and is renewable for periods of twenty five (25) years provided the project continues to exist and operate. Very notably, the wording of the Presidential Warranty connotes that for as long as the holder complies with all the legal requirements, the term of the warranty is not limited to fifty (50) years but other twenty five (25) years. 6.3 Note must be made that the government warranted that PICOPs tenure over the area and exclusive right to cut, collect and remove saw timber and pulpwood shall be for the period ending on 26 April 1977 and said period to be renewable for other 25 years subject to compliance with constitutional and statutory requirements as well as existing policy on timber requirements. It is clear that the renewal for other 25 years, not necessarily for another 25 years is guaranteed. This explains why on 07 October 1977, TLA No. 43, as amended, was automatically renewed for another period of twenty five (25) years to expire on 26 April 2002.[30] PICOPs interpretation of the 1969 Document cannot be sustained. PICOPs claim that the term of the warranty is not limited to fifty years, but that it extends to other fifty years, perpetually, violates Section 2, Article XII of the Constitution which provides: Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant. Mr. Justice Dante O. Tingas interpretation of the 1969 Document is much more in accord with the laws and the Constitution. What one cannot do directly, he cannot do indirectly. Forest lands cannot be alienated in favor of private entities. Granting to private entities, via a contract, a permanent, irrevocable, and exclusive possession of and right over forest lands is tantamount to granting ownership thereof. PICOP, it should be noted, claims nothing less than having exclusive, continuous and uninterrupted possession of its concession areas,[31] where all other entrants are illegal,[32] and where so-called illegal settlers and squatters are apprehended.[33]

IFMAs are production-sharing agreements concerning the development and utilization of natural resources. As such, these agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. Any superior contract requiring the State to issue TLAs and IFMAs whenever they expire clearly circumvents Section 2, Article XII of the Constitution, which provides for the only permissible schemes wherein the full control and supervision of the State are not derogated: co-production, joint venture, or production-sharing agreements within the time limit of twenty-five years, renewable for another twenty-five years. On its face, the 1969 Document was meant to expire on 26 April 2002, upon the expiration of the expected extension of the original TLA period ending on 26 April 1977: We further confirm that your tenure over the area and exclusive right to cut, collect and remove sawtimber and pulpwood shall be for the period ending on April 26, 1977; said period to be renewable for other 25 years subject to compliance with constitutional and statutory requirements as well as with existing policy on timber concessions.

Any interpretation extending the application of the 1969 Document beyond 26 April 2002 and any concession that may be granted to PICOP beyond the said date would violate the Constitution, and no amount of legal hermeneutics can change that. Attempts of PICOP to explain its way out of this Constitutional provision only led to absurdities, as exemplified in the following excerpt from the oral arguments: JUSTICE CARPIO: The maximum trend of agreement to develop and utilize natural resources like forest products is 25 years plus another 25 years or a total of 50 years correct? ATTY. AGABIN Yes, Your Honor. JUSTICE CARPIO: That is true for the 1987, 1973, 1935 Constitution, correct? ATTY. AGABIN: Yes, Your Honor. JUSTICE CARPIO: The TLA here, TLA 43, expired, the first 25 years expired in 1977, correct? ATTY. AGABIN: Yes, Your Honor. JUSTICE CARPIO: And it was renewed for another 25 years until 2002, the 50th year? ATTY. AGABIN:

Yes, Your Honor. JUSTICE CARPIO: Now, could PICOP before the end of the 50th year lets say in 2001, one year before the expiration, could it have asked for an extension of another 25 years of its TLA agreement[?] ATTY. AGABIN: I believe so, Your Honor. JUSTICE CARPIO: But the Constitution says, maximum of fifty years. How could you ask for another 25 years of its TLA. ATTY. AGABIN: Well, your Honor, we believe on a question like this, this Honorable Court should balance the interest. JUSTICE CARPIO: The Constitution is very clear, you have only a maximum of 50 years, 25 plus another 25. PICOP could never have applied for an extension, for a third 25year term whether under the 1935 Constitution, the 1973 Constitution and the 1987 Constitution, correct? ATTY. AGABIN: Your Honor, except that we are invoking the warranty, the terms of the warranty. JUSTICE CARPIO: Can the warranty prevail over the Constitution? ATTY. AGABIN: Well, it is a vested right, your Honor. JUSTICE CARPIO: Yes, but whatever it is, can it prevail over the Constitution? ATTY. AGABIN: The Constitution itself provides that vested rights should be . JUSTICE CARPIO: If it is not in violation of specific provision of the Constitution. The Constitution says, 25 years plus another 25 years, thats the end of it. You mean to say that a President of the Philippines can give somebody 1,000 years license?

ATTY. AGABIN: Well, that is not our position, Your Honor. Because our position is that . JUSTICE CARPIO: My question is, what is the maximum term, you said 50 years. So, my next question is, can PICOP apply for an extension of another 25 years after 2002, the 50th year? ATTY. AGABIN: Yes, based on the contract of warranty, Your Honor, because the contract of warranty. JUSTICE CARPIO: But in the PICOP license it is very clear, it says here, provision 28, it says the license agreement is for a total of 50 years. I mean it is very simple, the President or even Congress cannot pass a law extending the license, whatever kind of license to utilize natural resources for more than fifty year[s]. I mean even the law cannot do that. It cannot prevail over the Constitution. Is that correct, Counsel? ATTY. AGABIN: It is correct, Your Honor, except that in this case, what is actually our application is that the law provides for the conversion of existing TLA into IFMA. JUSTICE CARPIO: So, they file the petition for conversion before the end of the 50th year for IFMA. ATTY. AGABIN: Yes, Your Honor. JUSTICE CARPIO: But IFMA is the same, it is based on Section 2, Article 12 of the Constitution, develop and utilize natural resources because as you said when the new constitution took effect we did away with the old licensing regime, we have now co-production, a production sharing, joint venture, direct undertaking but still the same developing and utilizing the natural resources, still comes from section 2, Art. 12 of the Constitution. It is still a license but different format now. ATTY. AGABIN: It is correct, Your Honor, except that the regimes of joint venture, coproduction and production sharing are what is referred to in the constitution, Your Honor, and still covered JUSTICE CARPIO:

Yes, but it is covered by same 25 year[s], you mean to say people now can circumvent the 50 year maximum term by calling their TLA as IFMA and after fifty years calling it ISMA, after another 50 years call it MAMA. ATTY. AGABIN: Yes, Your Honor. Because JUSTICE CARPIO: It can be done. ATTY. AGABIN: That is provided for by the department itself.[34]

PICOP is, in effect, arguing that the DENR issued DAO No. 99-53 in order to provide a way to circumvent the provisions of the Constitution limiting agreements for the utilization of natural resources to a maximum period of fifty years. Official duties are, however, disputably considered to be regularly performed,[35] and good faith is always presumed. DAO No. 99-53 was issued to change the means by which the government enters into an agreement with private entities for the utilization of forest products. DAO No. 99-53 is a late response to the change in the constitutional provisions on natural resources from the 1973 Constitution, which allowed the granting of licenses to private entities,[36] to the present Constitution, which provides for co-production, joint venture, or production-sharing agreements as the permissible schemes wherein private entities may participate in the utilization of forest products. Since the granting of timber licenses ceased to be a permissible scheme for the participation of private entities under the present Constitution, their operations should have ceased upon the issuance of DAO No. 99-53, the rule regulating the schemes under the present Constitution. This would be iniquitous to those with existing TLAs that would not have expired yet as of the issuance of DAO No. 99-53, especially those with new TLAs that were originally set to expire after 10 or even 20 or more years. The DENR thus inserted a provision in DAO No. 99-53 allowing these TLA holders to finish the period of their TLAs, but this time as IFMAs, without the rigors of going through a new application, which they have probably just gone through a few years ago. Such an interpretation would not only make DAO No. 99-53 consistent with the provisions of the Constitution, but would also prevent possible discrimination against new IFMA applicants:

ASSOCIATE JUSTICE DE CASTRO: I ask this question because of your interpretation that the period of the IFMA, if your TLA is converted into IFMA, would cover a new a fresh period of twenty-five years renewable by another period of twenty-five years. DEAN AGABIN: Yes, Your Honor. ASSOCIATE JUSTICE DE CASTRO:

Dont you think that will, in effect, be invidious discrimination with respect to other applicants if you are granted a fresh period of twenty-five years extendible to another twenty-five years? DEAN AGABIN: I dont think it would be, Your Honor, considering that the IFMA is different regime from the TLA. And not only that, there are considerations of public health and ecology which should come into play in this case, and which we had explained in our opening statement and, therefore the provision of the Constitution on the twenty-five limits for renewal of co-production, joint venture and production sharing agreements, should be balanced with other values stated in the Constitution, like the value of balanced ecology, which should be in harmony with the rhythm of nature, or the policy of forest preservation in Article XII, Section 14 of the Constitution. These are all important policy considerations which should be balanced against the term limits in Article II of the Constitution. ASSOCIATE JUSTICE DE CASTRO: The provision of this Administrative Order regarding automatic conversion may be reasonable, if, I want to know if you agree with me, if we limit this automatic conversion to the remaining period of the TLA, because in that case there will be a valid ground to make a distinction between those with existing TLA and those who are applying for the first time for IFMA? DEAN AGABIN: Well, Your Honor, we beg to disagree, because as I said TLAs are completely different from IFMA. The TLA has no production sharing or coproduction agreement or condition. All that the licensee has to do is, to pay forest charges, taxes and other impositions from the local and national government. On the other hand, the IFMAs contained terms and conditions which are completely different, and that they either impose co-production, production sharing or joint venture terms. So its a completely different regime, Your Honor. ASSOCIATE JUSTICE DE CASTRO: Precisely, that is the reason why there should be an evaluation of what you mentioned earlier of the development plan. DEAN AGABIN: Yes, Your Honor. ASSOCIATE JUSTICE DE CASTRO: So it will be reasonable to convert a TLA into an IFMA without considering the development plan submitted by other applicants or the development plan itself of one seeking conversion into IFMA if it will only be limited to the period, the original period of the TLA. But once you go beyond the period of the TLA, then you will be, the DENR is I think should evaluate the different proposals of the applicants if we are thinking of a fresh period of twentyfive years, and which is renewable under the Constitution by another twenty-five years. So the development plan will be important in this case, the submission of the development plan of the different applicants must be considered. So I dont understand why you mentioned earlier that the development plan will later on be a subject matter of negotiation between the IFMA grantee and the government. So

it seems that it will be too late in the day to discuss that if you have already converted the TLA into IFMA or if the government has already granted the IFMA, and then it will later on study the development plan, whether it is viable or not, or it is sustainable or not, and whether the development plan of the different applicants are, are, which of the development plan of the different applicants is better or more advantageous to the government.[37]

PICOP insists that the alleged Presidential Warranty, having been signed on 29 July 1969, could not have possibly considered the limitations yet to be imposed by future issuances, such as the 1987 Constitution. However, Section 3, Article XVIII of said Constitution, provides: Section 3. All existing laws, decrees, executive orders, proclamations, letters of instructions, and other executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed, or revoked. In the recent case Sabio v. Gordon,[38] we ruled that (t)he clear import of this provision is that all existing laws, executive orders, proclamations, letters of instructions and other executive issuances inconsistent or repugnant to the Constitution are repealed. When a provision is susceptible of two interpretations, the one that will render them operative and effective and harmonious with other provisions of law[39] should be adopted. As the interpretations in the assailed Decision and in Mr. Justice Tingas ponencia are the ones that would not make the subject Presidential Warranty unconstitutional, these are what we shall adopt. Purpose of the 1969 Document: Assurance That the Boundaries of Its Concession Area Would Not Be Altered Despite the Provision in the TLA that the DENR Secretary Can Amend Said Boundaries

In the assailed Decision, we ruled that the 1969 Document cannot be considered a contract that would bind the government regardless of changes in policy and the demands of public interest and social welfare. PICOP claims this conclusion did not take into consideration that PICOP already had a valid and current TLA before the contract with warranty was signed in 1969.[40] PICOP goes on: The TLA is a license that equips any TLA holder in the country for harvesting of timber. A TLA is signed by the Secretary of the DANR now DENR. The Court ignored the significance of the need for another contract with the Secretary of the DANR but this time with the approval of the President of the Republic.[41] PICOP then asks us: If PICOP/BBLCI was only an ordinary TLA holder, why will it go through the extra step of securing another contract just to harvest timber when the same can be served by the TLA signed only by the Secretary and not requiring the approval of the President of the Republic(?)[42] The answer to this query is found in TLA No. 43 itself wherein, immediately after the boundary lines of TLA No. 43 were established, the following conditions were given: This license is granted to the said party of the second part upon the following express conditions: I. That authority is granted hereunder to the party of the second part[43] to cut, collect or remove firewood or other minor forest products from the area embraced in this license agreement except as hereinafter provided. II. That the party of the first part[44] may amend or alter the description of the boundaries of the area covered by this license agreement to

conform with official surveys and thatthe decision of the party of the first part as to the exact location of the said boundaries shall be final. III. That if the party of the first part deems it necessary to establish on the ground the boundary lines of the area granted under this license agreement, the party of the second part shall furnish to the party of the first part or its representatives as many laborers as it needs and all the expenses to be incurred on the work including the wages of such laborers shall be paid by the party of the second part.[45]

Thus, BBLCI needed an assurance that the boundaries of its concession area, as established in TLA No. 43, as amended, would not be altered despite this provision. Hence, BBLCI endeavored to obtain the 1969 Document, which provides: We confirm that your Timber License Agreement No. 43, as amended (copy of which is attached as Annex A hereof which shall form part and parcel of this warranty) definitely establishes the boundary lines of your concession area which consists of permanent forest lands with an aggregate area of 121,587 hectares and alienable or disposable lands with an aggregate area of approximately 21,580 hectares. We further confirm that your tenure over the area and exclusive right to cut, collect and remove sawtimber and pulpwood shall be for the period ending on April 26, 1977; said period to be renewable for other 25 years subject to compliance with constitutional and statutory requirements as well as with existing policy on timber concessions. The peaceful and adequate enjoyment by you of your area as described and specified in your aforesaid amended Timber License Agreement No. 43 is hereby warranted provided that pertinent laws, regulations and the terms and conditions of your license agreement are observed.[46] In Koa v. Court of Appeals,[47] we ruled that a warranty is a collateral undertaking and is merely part of a contract. As a collateral undertaking, it follows the principal wherever it goes. When this was pointed out by the Solicitor General, PICOP changed its designation of the 1969 Document from Presidential Warranty or government warranty in all its pleadings prior to our Decision, to contract with warranty in its Motion for Reconsideration. This, however, is belied by the statements in the 29 July 1969Document, which refers to itself as this warranty. Re: Allegation That There Were Mutual Contract Considerations

Had the 29 July 1969 Document been intended as a contract, it could have easily said so. More importantly, it could have clearly defined the mutual considerations of the parties thereto. It could have also easily provided for the sanctions for the breach of the mutual considerations specified therein. PICOP had vigorously argued that the 1969 Document was a contract because of these mutual considerations, apparently referring to the following paragraph of the 1969 Document: We are made to understand that your company is committed to support the first large scale integrated wood processing complex hereinafter called: The Project) and that such support will be provided not only in the form of the supply of pulpwood and other wood materials from your concession but also by making available funds generated out of your own operations, to supplement PICOPs

operational surces (sic) of funds and other financial arrangements made by him. In order that your company may provide such support effectively, it is understood that you will call upon your stockholders to take such steps as may be necessary to effect a unification of managerial, technical, economic and manpower resources between your company and PICOP. This provision hardly evinces a contract consideration (which, in PICOPs interpretation, is in exchange for the exclusive and perpetual tenure over 121,587 hectares of forest land and 21,580 hectares of alienable and disposable lands). As elucidated by PICOP itself in bringing up the Investment Incentives Act which we shall discuss later, and as shown by the tenor of the 1969 Document, the latter document was more of a conferment of an incentive for BBLCIs investment rather than a contract creating mutual obligations on the part of the government, on one hand, and BBLCI, on the other. There was no stipulation providing for sanctions for breach if BBLCIs being committed to support the first large scale integrated wood processing complex remains a commitment. Neither did the 1969 Document give BBLCI a period within which to pursue this commitment. According to Article 1350 of the Civil Code, "(i)n onerous contracts the cause is understood to be, for each contracting party, the prestation or promise of a thing or service by the other.[48] Private investments for ones businesses, while indeed eventually beneficial to the country and deserving to be given incentives, are still principally and predominantly for the benefit of the investors. Thus, the mutual contract considerations by both parties to this alleged contract would be both for the benefit of one of the parties thereto, BBLCI, which is not obligated by the 1969 Document to surrender a share in its proceeds any more than it is already required by its TLA and by the tax laws. PICOPs argument that its investments can be considered as contract consideration derogates the rule that a license or a permit is not a contract between the sovereignty and the licensee or permittee, and is not a property in the constitutional sense, as to which the constitutional proscription against the impairment of contracts may extend. All licensees obviously put up investments, whether they are as small as a tricycle unit or as big as those put up by multi-billion-peso corporations. To construe these investments as contract considerations would be to abandon the foregoing rule, which would mean that the State would be bound to all licensees, and lose its power to revoke or amend these licenses when public interest so dictates. The power to issue licenses springs from the States police power, known as the most essential, insistent and least limitable of powers, extending as it does to all the great public needs.[49] Businesses affecting the public interest, such as the operation of public utilities and those involving the exploitation of natural resources, are mandated by law to acquire licenses. This is so in order that the State can regulate their operations and thereby protect the public interest. Thus, while these licenses come in the form of agreements, e.g., Timber License Agreements, they cannot be considered contracts under the non-impairment clause.[50] PICOP found this argument lame, arguing, thus: 43. It is respectfully submitted that the aforesaid pronouncement in the Decision is an egregious and monumental error. 44. The Decision could not dismiss as preposterous the mutual covenants in the Presidential Warranty which calls for a huge investment of Php500 million at that time in 1969 out of which Php268,440,000 raised from domestic foreign lending institution to establish the first large scale integrated wood processing complex in the Philippines. 45. The Decision puts up a lame explanation that all licensees put up investments in pursuing their business

46. Now there are about a hundred timber licenses issued by the Government thru the DENR, but these are ordinary timber licenses which involve the mere cutting of timber in the concession area, and nothing else. Records in the DENR shows that no timber licensee has put up an integrated large wood processing complex in the Philippines except PICOP.[51]

PICOP thus argues on the basis of quantity, and wants us to distinguish between the investment of the tricycle driver and that of the multi-billion corporation. However, not even billions of pesos in investment can change the fact that natural resources and, therefore, public interest are involved in PICOPs venture, consequently necessitating the full control and supervision by the State as mandated by the Constitution. Not even billions of pesos in investment can buy forest lands, which is practically what PICOP is asking for by interpreting the 1969 Document as a contract giving it perpetual and exclusive possession over such lands. Among all TLA holders in the Philippines, PICOP has, by far, the largest concession area at 143,167 hectares, a land area more than the size of two Metro Manilas.[52] How can it not expect to also have the largest investment?

Investment Incentives Act PICOP then claims that the contractual nature of the 1969 Document was brought about by its issuance in accordance with and pursuant to the Investment Incentives Act. According to PICOP: The conclusion in the Decision that to construe PICOPs investments as a consideration in a contract would be to stealthily render ineffective the principle that a license is not a contract between the sovereignty and the licensee is so flawed since the contract with the warranty dated 29 July 1969 was issued by the Government in accordance with and pursuant to Republic Act No. 5186, otherwise known as The Investment Incentives Act.[53]

PICOP then proceeds to cite Sections 2 and 4(d) and (e) of said act: Section 2. Declaration of Policy To accelerate the sound development of the national economy in consonance with the principles and objectives of economic nationalism, and in pursuance of a planned, economically feasible and practicable dispersal of industries, under conditions which will encourage competition and discharge monopolies, it is hereby declared to be the policy of the state to encourage Filipino and foreign investments, as hereinafter set out, in projects to develop agricultural, mining and manufacturing industries which increase national income most at the least cost, increase exports, bring about greater economic stability, provide more opportunities for employment, raise the standards of living of the people, and provide for an equitable distribution of wealth. It is further declared to be the policy of the state to welcome and encourage foreign capital to establish pioneer enterprises that are capital intensive and would utilize a substantial amount of domestic raw materials, in joint venture with substantial Filipino capital, whenever available. Section 4. Basic Rights and Guarantees. All investors and enterprises are entitled to the basic rights and guarantees provided in the constitution. Among other rights recognized by the Government of the Philippines are the following:

xxxx d) Freedom from Expropriation. There shall be no expropriation by the government of the property represented by investments or of the property of enterprises except for public use or in the interest of national welfare and defense and upon payment of just compensation. x x x. e) Requisition of Investment. There shall be no requisition of the property represented by the investment or of the property of enterprises, except in the event of war or national emergency and only for the duration thereof. Just compensation shall be determined and paid either at the time of requisition or immediately after cessation of the state of war or national emergency. Payments received as compensation for the requisitioned property may be remitted in the currency in which the investment was originally made and at the exchange rate prevailing at the time of remittance, subject to the provisions of Section seventyfour of republic Act Numbered Two hundred sixty-five.

Section 2 speaks of the policy of the State to encourage Filipino and foreign investments. It does not speak of how this policy can be implemented. Implementation of this policy is tackled in Sections 5 to 12 of the same law,[54] which PICOP failed to mention, and for a good reason. None of the 24 incentives enumerated therein relates to, or even remotely suggests that, PICOPs proposition that the 1969 Document is a contract. PICOP could indeed argue that the enumeration is not exclusive. Certainly, granting incentives to investors, whether included in the enumeration or not, would be an implementation of this policy. However, it is presumed that whatever incentives may be given to investors should be within the bounds of the laws and the Constitution. The declaration of policy in Section 2 cannot, by any stretch of the imagination, be read to provide an exception to either the laws or, heaven forbid, the Constitution. Exceptions are never presumed and should be convincingly proven. Section 2 of the Investment Incentives Act cannot be read as exempting investors from the Constitutional provisions (1) prohibiting private ownership of forest lands; (2) providing for the complete control and supervision by the State of exploitation activities; or (3) limiting exploitation agreements to twenty-five years, renewable for another twenty-five years. Section 4(d) and (e), on the other hand, is a recognition of rights already guaranteed under the Constitution. Freedom from expropriation is granted under Section 9 of Article III[55] of the Constitution, while the provision on requisition is a negative restatement of Section 6, Article XII.[56] Refusal to grant perpetual and exclusive possession to PICOP of its concession area would not result in the expropriation or requisition of PICOPs property, as these forest lands belong to the State, and not to PICOP. This is not changed by PICOPs allegation that: Since it takes 35 years before the company can go back and harvest their residuals in a logged-over area, it must be assured of tenure in order to provide an inducement for the company to manage and preserve the residuals during their growth period. This is a commitment of resources over a span of 35 years for each plot for each cycle. No company will undertake the responsibility and cost involved in policing, preserving and managing residual forest areas until it were sure that it had firm title to the timber.[57]

The requirement for logging companies to preserve and maintain forest areas, including the reforestation thereof, is one of the prices a logging company must pay for the exploitation thereof. Forest lands are meant to be enjoyed by countless future generations of Filipinos, and

not just by one logging company. The requirements of reforestation and preservation of the concession areas are meant to protect them, the future generations, and not PICOP. Reforestation and preservation of the concession areas are not required of logging companies so that they would have something to cut again, but so that the forest would remain intact after their operations. That PICOP would not accept the responsibility to preserve its concession area if it is not assured of tenure thereto does not speak well of its corporate policies. Conclusion

In sum, PICOP was not able to prove either of the two things it needed to prove to be entitled to a Writ of Mandamus against the DENR Secretary. The 1969 Document is not a contract recognized under the non-impairment clause and, even if we assume for the sake of argument that it is, it did not enjoin the government to issue an IFMA in 2002 either. These are the essential elements in PICOPs cause of action, and the failure to prove the same warrants a dismissal of PICOPs Petition for Mandamus, as not even PICOPs compliance with all the administrative and statutory requirements can save its Petition now. Whether PICOP Has Complied with the Statutory and Administrative Requirements for the Conversion of the TLA to an IFMA

In the assailed Decision, our ruling was based on two distinct grounds, each one being sufficient in itself for us to rule that PICOP was not entitled to a Writ of Mandamus: (1) the 1969 Document, on which PICOP hinges its right to compel the issuance of an IFMA, is not a contract; and (2) PICOP has not complied with all administrative and statutory requirements for the issuance of an IFMA. When a court bases its decision on two or more grounds, each is as authoritative as the other and neither is obiter dictum.[58] Thus, both grounds on which we based our ruling in the assailed Decision would become judicial dictum, and would affect the rights and interests of the parties to this case unless corrected in this Resolution on PICOPs Motion for Reconsideration. Therefore, although PICOP would not be entitled to a Writ of Mandamus even if the second issue is resolved in its favor, we should nonetheless resolve the same and determine whether PICOP has indeed complied with all administrative and statutory requirements for the issuance of an IFMA. While the first issue (on the nature of the 1969 Document) is entirely legal, this second issue (on PICOPs compliance with administrative and statutory requirements for the issuance of an IFMA) has both legal and factual sub-issues. Legal sub-issues include whether PICOP is legally required to (1) consult with and acquire an approval from the Sanggunian concerned under Sections 26 and 27 of the Local Government Code; and (2) acquire a Certification from the National Commission on Indigenous Peoples (NCIP) that the concession area does not overlap with any ancestral domain. Factual sub-issues include whether, at the time it filed its Petition for Mandamus, PICOP had submitted the required Five-Year Forest Protection Plan and Seven-Year Reforestation Plan and whether PICOP had paid all forest charges. For the factual sub-issues, PICOP invokes the doctrine that factual findings of the trial court, especially when upheld by the Court of Appeals, deserve great weight. However, deserving of even greater weight are the factual findings of administrative agencies that have the expertise in the area of concern. The contentious facts in this case relate to the licensing, regulation and management of forest resources, the determination of which belongs exclusively to the DENR:

SECTION 4.Mandate. The Department shall be the primary government agency responsible for the conservation, management, development and proper use of the countrys environment and natural resources, specifically forest and grazing lands, mineral resources, including those in reservation and watershed areas, and lands of the public domain, as well as the licensing and regulation of all natural resources as may be provided for by law in order to ensure equitable sharing of the benefits derived therefrom for the welfare of the present and future generations of Filipinos.[59]

When parties file a Petition for Certiorari against judgments of administrative agencies tasked with overseeing the implementation of laws, the findings of such administrative agencies are entitled to great weight. In the case at bar, PICOP could not have filed a Petition for Certiorari, as the DENR Secretary had not yet even determined whether PICOP should be issued an IFMA. As previously mentioned, when PICOPs application was brought to a standstill upon the evaluation that PICOP had yet to comply with the requirements for the issuance of an IFMA, PICOP refused to attend further meetings with the DENR and instead filed a Petition for Mandamus against the latter. By jumping the gun, PICOP did not diminish the weight of the DENR Secretarys initial determination.

Forest Protection and Reforestation Plans The Performance Evaluation Team tasked to appraise PICOPs performance on its TLA No. 43 found that PICOP had not submitted its Five-Year Forest Protection Plan and its SevenYear Reforestation Plan.[60] In its Motion for Reconsideration, PICOP asserts that, in its Letter of Intent dated 28 August 2000 and marked as Exhibit L in the trial court, there was a reference to a Ten-Year Sustainable Forest Management Plan (SFMP), in which a Five-Year Forest Protection Plan and a Seven-Year Reforestation Plan were allegedly incorporated. PICOP submitted a machine copy of a certified photocopy of pages 50-67 and 104-110 of this SFMP in its Motion for Reconsideration. PICOP claims that the existence of this SFMP was repeatedly asserted during the IFMA application process.[61] Upon examination of the portions of the SFMP submitted to us, we cannot help but notice that PICOPs concept of forest protection is the security of the area against illegal entrants and settlers. There is no mention of the protection of the wildlife therein, as the focus of the discussion of the silvicultural treatments and the SFMP itself is on the protection and generation of future timber harvests. We are particularly disturbed by the portions stating that trees of undesirable quality shall be removed. However, when we required the DENR Secretary to comment on PICOPs Motion for Reconsideration, the DENR Secretary did not dispute the existence of this SFMP, or question PICOPs assertion that a Ten-Year Forest Protection Plan and a Ten-Year Reforestation Plan are already incorporated therein. Hence, since the agency tasked to determine compliance with IFMA administrative requirements chose to remain silent in the face of allegations of compliance, we are constrained to withdraw our pronouncement in the assailed Decision that PICOP had not submitted a Five-Year Forest Protection Plan and a Seven-Year Reforestation Plan for its TLA No. 43. As previously mentioned, the licensing, regulation and management of forest resources are the primary responsibilities of the DENR.[62] The compliance discussed above is, of course, only for the purpose of determining PICOPs satisfactory performance as a TLA holder, and covers a period within the subsistence of PICOPs TLA No. 43. This determination, therefore, cannot prohibit the DENR from requiring

PICOP, in the future, to submit proper forest protection and reforestation plans covering the period of the proposed IFMA. Forest Charges In determining that PICOP did not have unpaid forest charges, the Court of Appeals relied on the assumption that if it were true that PICOP had unpaid forest charges, it should not have been issued an approved Integrated Annual Operation Plan (IAOP) for the year 2001-2002 by Secretary Alvarez himself.[63] In the assailed Decision, we held that the Court of Appeals had been selective in its evaluation of the IAOP, as it disregarded the part thereof that shows that the IAOP was approved subject to several conditions, not the least of which was the submission of proof of the updated payment of forest charges from April 2001 to June 2001.[64] We also held that even if we considered for the sake of argument that the IAOP should not have been issued if PICOP had existing forestry accounts, the issuance of the IAOP could not be considered proof that PICOP had paid the same. Firstly, the best evidence of payment is the receipt thereof. PICOP has not presented any evidence that such receipts were lost or destroyed or could not be produced in court.[65] Secondly, the government cannot be estopped by the acts of its officers. If PICOP has been issued an IAOP in violation of the law, allegedly because it may not be issued if PICOP had existing forestry accounts, the government cannot be estopped from collecting such amounts and providing the necessary sanctions therefor, including the withholding of the IFMA until such amounts are paid. We therefore found that, as opposed to the Court of Appeals findings, which were based merely on estoppel of government officers, the positive and categorical evidence presented by the DENR Secretary was more convincing with respect to the issue of payment of forestry charges: 1. Forest Management Bureau (FMB) Senior Forest Management Specialist (SFMS) Ignacio M. Evangelista testified that PICOP had failed to pay its regular forest charges covering the period from 22 September 2001 to 26 April 2002 in the total amount of P15,056,054.05[66] PICOP also allegedly paid late most of its forest charges from 1996 onwards, by reason of which, PICOP is liable for a surcharge of 25% per annum on the tax due and interest of 20% per annum which now amounts to P150,169,485.02.[67] Likewise, PICOP allegedly had overdue and unpaid silvicultural fees in the amount of P2,366,901.00 as of 30 August 2002.[68] Summing up the testimony, therefore, it was alleged that PICOP had unpaid and overdue forest charges in the sum of P167,592,440.90 as of 10 August 2002.[69] Collection letters were sent to PICOP, but no official receipts are extant in the DENR record in Bislig City evidencing payment of the overdue amount stated in the said collection letters.[70] There were no official receipts for the period covering 22 September 2001 to 26 April 2002.

2.

We also considered these pieces of evidence more convincing than the other ones presented by PICOP: 1. PICOP presented the certification of Community Environment and Natural Resources Office (CENRO) Officer Philip A. Calunsag, which refers only to PICOPs alleged payment of regular forest charges covering the period from 14 September 2001 to 15 May 2002.[71] We noted that it does not mention similar payment of the penalties, surcharges and interests that PICOP incurred in paying late several forest charges, which fact was not rebutted by PICOP.

2.

The 27 May 2002 Certification by CENRO Calunsag specified only the period covering 14 September 2001 to 15 May 2002 and the amount of P53,603,719.85 paid by PICOP without indicating the corresponding volume and date of production of the logs. This is in contrast to the findings of SFMS Evangelista, which cover the period from CY 1996 to 30 August 2002 and includes penalties, interests, and surcharges for late payment pursuant to DAO 80, series of 1987. The 21 August 2002 PICOP-requested certification issued by Bill Collector Amelia D. Arayan, and attested to by CENRO Calunsag himself, shows that PICOP paid only regular forest charges for its log production covering 1 July 2001 to 21 September 2001. However, there were log productions after 21 September 2001, the regular forest charges for which have not been paid, amounting to P15,056,054.05.[72] The same certification shows delayed payment of forest charges, thereby corroborating the testimony of SFMS Evangelista and substantiating the imposition of penalties and surcharges.

3.

In its Motion for Reconsideration, PICOP claims that SFMS Evangelista is assigned to an office that has nothing to do with the collection of forest charges, and that he based his testimony on the Memoranda of Forest Management Specialist II (FMS II) Teofila Orlanes and DENR, Bislig City Bill Collector Amelia D. Arayan, neither of whom was presented to testify on his or her Memorandum. PICOP also submitted an Addendum to Motion for Reconsideration, wherein it appended certified true copies of CENRO Summaries with attached Official Receipts tending to show that PICOP had paid a total of P81,184,747.70 in forest charges for 10 January 2001 to 20 December 2002, including the period during which SFMS Evangelista claims PICOP did not pay forest charges (22 September 2001 to 26 April 2002). Before proceeding any further, it is necessary for us to point out that, as with our ruling on the forest protection and reforestation plans, this determination of compliance with the payment of forest charges is exclusively for the purpose of determining PICOPs satisfactory performance on its TLA No. 43. This cannot bind either party in a possible collection case that may ensue. An evaluation of the DENR Secretarys position on this matter shows a heavy reliance on the testimony of SFMS Evangelista, making it imperative for us to strictly scrutinize the same with respect to its contents and admissibility. PICOP claims that SFMS Evangelistas office has nothing to do with the collection of forest charges. According to PICOP, the entity having administrative jurisdiction over it is CENRO, Bislig City by virtue of DENR Administrative Order No. 96-36, dated 20 November 1996, which states: 1. In order for the DENR to be able to exercise closer and more effective supervision, management and control over the forest resources within the areas covered by TLA No. 43, PTLA No. 47 and IFMA No. 35 of the PICOP Resources, Inc., (PRI) and, at the same time, provide greater facility in the delivery of DENR services to various publics, the aforesaid forest holdings of PRI are hereby placed under the exclusive jurisdiction of DENR Region No. XIII with the CENR Office at Bislig, Surigao del Sur, as directly responsible thereto. x x x.

We disagree. Evangelista is an SFMS assigned at the Natural Forest Management Division of the FMB, DENR. In Evangelistas aforementioned affidavit submitted as part of his direct examination, Evangelista enumerated his duties and functions as SFMS: 1. As SFMS, I have the following duties and functions:

a) b)

c) d) e)

To evaluate and act on cases pertaining to forest management referred to in the Natural forest Management Division; To monitor, verify and validate forest management and related activities by timber licences as to their compliance to approved plans and programs; To conduct investigation and verification of compliance by timber licenses/permittees to existing DENR rules and regulations; To gather field data and information to be used in the formulation of forest policies and regulations; and To perform other duties and responsibilities as may be directed by superiors.[73]

PICOP also alleges that the testimony of SFMS Evangelista was based on the aforementioned Memoranda of Orlanes and Arayan and that, since neither Orlanes nor Arayan was presented as a witness, SFMS Evangelistas testimony should be deemed hearsay. SFMS Evangelistas 1 October 2002 Affidavit,[74] which was offered as part of his testimony, provides: 2. Sometime in September, 2001 the DENR Secretary was furnished a copy of forest Management Specialist II (FMS II) Teofila L. Orlanes Memorandum dated September 24, 2001 concerning unopaid forest charges of PICOP. Attached to the said Memorandum was a Memorandum dated September 19, 2001 of Amelia D. Arayan, Bill collector of the DENR R1314, Bislig City. Copies of the said Memoranda are attached as Annexes 1 and 2, respectively. 3. The said Memoranda were referred to the FMB Director for appropriate action. 4. Thus, on August 5, 2002, I was directed by the FMB Director to proceed to Region 13 to gather forestry-related data and validate the report contained in the Memoranda of Ms. Orlanes and Arayan. 5. On August 6, 2002, I proceeded to DENR Region 13 in Bislig City. A copy of my Travel Order is attached as Annex 3. 6. Upon my arrival at CENRO, Bislig, surigao del Sur, I coordinated with CENRO Officer Philip A. Calunsag and requested him to make available to me the records regarding the forest products assessments of PICOP. 7. After I was provided with the requested records, I evaluated and collected the data. 8. After the evaluation, I found that the unpaid forest charges adverted to in the Memoranda of Mr. Orlanes and Arayan covering the period from May 8, 2001 to July 7, 2001 had already been paid but late. I further found out that PICOP had not paid its forest charges covering the period from September 22, 2001 to April 26, 2002 in the total amount of P15,056,054.05. 9. I also discovered that from 1996 up to august 30, 2002, PICOP paid late some of its forest charges in 1996 and consistently failed to pay late its forest charges from 1997 up to the present time. 10. Under Section 7.4 of DAO No. 80 Series of 197\87 and Paragraph (4a), Section 10 of BIR revenue Regulations No. 2-81 dated November 18, 1980, PICOP is mandated to pay a surcharge of 25% per annum of the tax due and interest of 20% per annum for late payment of forest charges.

11. The overdue unpaid forest charges of PICOP as shown in the attached tabulation marked as Annex 4 hereof is P150,169,485.02. Likewise, PICOP has overdue and unpaid silvicultural fees in the amount of P2,366,901.00 from 1996 to the present. 12. In all, PICOP has an outstanding and overdue total obligation of P167,592,440.90 as of August 30, 2002 based on the attached tabulation which is marked as Annex 5 hereof.[75]

Clearly, SFMS Evangelista had not relied on the Memoranda of Orlanes and Arayan. On the contrary, he traveled to Surigao del Sur in order to verify the contents of these Memoranda. SFMS Evangelista, in fact, revised the findings therein, as he discovered that certain forest charges adverted to as unpaid had already been paid. This does not mean, however, that SFMS Evangelistas testimony was not hearsay. A witness may testify only on facts of which he has personal knowledge; that is, those derived from his perception, except in certain circumstances allowed by the Rules.[76] Otherwise, such testimony is considered hearsay and, hence, inadmissible in evidence.[77] SFMS Evangelista, while not relying on the Memoranda of Orlanes and Arayan, nevertheless relied on records, the preparation of which he did not participate in.[78] These records and the persons who prepared them were not presented in court, either. As such, SFMS Evangelistas testimony, insofar as he relied on these records, was on matters not derived from his own perception, and was, therefore, hearsay. Section 44, Rule 130 of the Rules of Court, which speaks of entries in official records as an exception to the hearsay rule, cannot excuse the testimony of SFMS Evangelista. Section 44 provides: SEC. 44. Entries in official records. Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. In Africa v. Caltex,[79] we enumerated the following requisites for the admission of entries in official records as an exception to the hearsay rule: (1) the entries were made by a public officer or a private person in the performance of a duty; (2) the performance of the duty is especially enjoined by law; (3) the public officer or the private person had sufficient knowledge of the facts stated by him, which must have been acquired by him personally or through official information. The presentation of the records themselves would, therefore, have been admissible as an exception to the hearsay rule even if the public officer/s who prepared them was/were not presented in court, provided the above requisites could be adequately proven. In the case at bar, however, neither the records nor the persons who prepared them were presented in court. Thus, the above requisites cannot be sufficiently proven. Also, since SFMS Evangelista merely testified based on what those records contained, his testimony was hearsay evidence twice removed, which was one step too many to be covered by the official-records exception to the hearsay rule. SFMS Evangelistas testimony of nonpayment of forest charges was, furthermore, based on his failure to find official receipts corresponding to billings sent to PICOP. As stated above, PICOP attached official receipts in its Addendum to Motion for Reconsideration to this Court. While this course of action is normally irregular in judicial proceedings, we merely stated

in the assailed Decision that the DENR Secretary has adequately proven that PICOP has, at this time, failed to comply with administrative and statutory requirements for the conversion of TLA No. 43 into an IFMA,[80] and that this disposition confers another chance to comply with the foregoing requirements.[81] In view of the foregoing, we withdraw our pronouncement that PICOP has unpaid forestry charges, at least for the purpose of determining compliance with the IFMA requirements. NCIP Certification The Court of Appeals held that PICOP need not comply with Section 59 of Republic Act No. 8371, which requires prior certification from the NCIP that the areas affected do not overlap with any ancestral domain before any IFMA can be entered into by the government. According to the Court of Appeals, Section 59 should be interpreted to refer to ancestral domains that have been duly established as such by the continuous possession and occupation of the area concerned by indigenous peoples since time immemorial up to the present. The Court of Appeals held that PICOP had acquired property rights over TLA No. 43 areas, being in exclusive, continuous and uninterrupted possession and occupation of these areas since 1952 up to the present. In the assailed Decision, we reversed the findings of the Court of Appeals. Firstly, the Court of Appeals ruling defies the settled jurisprudence we have mentioned earlier, that a TLA is neither a property nor a property right, and that it does not create a vested right.[82] Secondly, the Court of Appeals resort to statutory construction is misplaced, as Section 59 of Republic Act No. 8379 is clear and unambiguous: SEC. 59. Certification Precondition. All departments and other governmental agencies shall henceforth be strictly enjoined from issuing, renewing or granting any concession, license or lease, or entering into any production-sharing agreement, without prior certification from the NCIP that the area affected does not overlap with any ancestral domain. Such certification shall only be issued after a field-based investigation is conducted by the Ancestral Domains Office of the area concerned: Provided, That no certification shall be issued by the NCIP without the free and prior informed and written consent of the ICCs/IPs concerned: Provided, further, That no department, government agency or government-owned or controlled corporation may issue new concession, license, lease, or production sharing agreement while there is a pending application for a CADT: Provided, finally, That the ICCs/IPs shall have the right to stop or suspend, in accordance with this Act, any project that has not satisfied the requirement of this consultation process.

PICOP had tried to put a cloud of ambiguity over Section 59 of Republic Act No. 8371 by invoking the definition of Ancestral Domains in Section 3(a) thereof, wherein the possesssion by Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) must have been continuous to the present. However, we noted the exception found in the very same sentence invoked by PICOP: a) Ancestral domains Subject to Section 56 hereof, refers to all areas generally belonging to ICCs/IPs comprising lands, inland waters, coastal areas, and natural resources therein, held under a claim of ownership, occupied or possessed by ICCs/IPs, by themselves or through their ancestors, communally or individually since time immemorial, continuously to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings entered into by government and private individuals/corporations, and which are

necessary to ensure their economic, social and cultural welfare. It shall include ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned whether alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources, and lands which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to for their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators;

Ancestral domains, therefore, remain as such even when possession or occupation of these areas has been interrupted by causes provided under the law, such as voluntary dealings entered into by the government and private individuals/corporations. Consequently, the issuance of TLA No. 43 in 1952 did not cause the ICCs/IPs to lose their possession or occupation over the area covered by TLA No. 43. Thirdly, we held that it was manifestly absurd to claim that the subject lands must first be proven to be part of ancestral domains before a certification that the lands are not part of ancestral domains can be required, and invoked the separate opinion of now Chief Justice Reynato Puno in Cruz v. Secretary of DENR[83]: As its subtitle suggests, [Section 59 of R.A. No. 8371] requires as a precondition for the issuance of any concession, license or agreement over natural resources, that a certification be issued by the NCIP that the area subject of the agreement does not lie within any ancestral domain. The provision does not vest the NCIP with power over the other agencies of the State as to determine whether to grant or deny any concession or license or agreement. It merely gives the NCIP the authority to ensure that the ICCs/IPs have been informed of the agreement and that their consent thereto has been obtained. Note that the certification applies to agreements over natural resources that do not necessarily lie within the ancestral domains. For those that are found within the said domains, Sections 7(b) and 57 of the IPRA apply.

PICOP rejects the entire disposition of this Court on the matter, relying on the following theory: 84. It is quite clear that Section 59 of R.A. 8371 does not apply to the automatic conversion of TLA 43 to IFMA. First, the automatic conversion of TLA 43 to an IFMA is not a new project. It is a mere continuation of the harvesting process in an area that PICOP had been managing, conserving and reforesting for the last 50 years since 1952. Hence any pending application for a CADT within the area, cannot affect much less hold back the automatic conversion. That the government now wishes to change the tenurial system to an IFMA could not change the PICOP project, in existence and operating for the last 30 (sic) years, into a new one.[84] PICOPs position is anything but clear. What is clearly provided for in Section 59 is that it covers issuing, renewing or granting (of) any concession, license or lease, or entering into any production sharing agreement. PICOP is implying that, when the government changed the tenurial system to an IFMA, PICOPs existing TLA would just be upgraded or modified, but would be the very same agreement, hence, dodging the inclusion in the word renewing. However, PICOP is conveniently leaving out the fact that its TLA expired in 2002. If PICOP really intends to pursue the argument that the conversion of the TLA into an IFMA would not create a new agreement, but would only be a modification of the old one, then

it should be willing to concede that the IFMA expired as well in 2002. An automatic modification would not alter the terms and conditions of the TLA except when they are inconsistent with the terms and conditions of an IFMA. Consequently, PICOPs concession period under the renewed TLA No. 43, which is from the year 1977 to 2002, would remain the same. PICOP cannot rely on a theory of the case whenever such theory is beneficial to it, but refute the same whenever the theory is damaging to it. In the same way, PICOP cannot claim that the alleged Presidential Warranty is renewable for other 25 years and later on claim that what it is asking for is not a renewal. Extensions of agreements must necessarily be included in the term renewal. Otherwise, the inclusion of renewing in Section 59 would be rendered inoperative. PICOP further claims: 85. Verily, in interpreting the term held under claim of ownership, the Supreme Court could not have meant to include claims that had just been filed and not yet recognized under the provisions of DENR Administrative Order No. 2 Series of 1993, nor to any other community / ancestral domain program prior to R.A. 8371. xxxx 87. One can not imagine the terrible damage and chaos to the country, its economy, its people and its future if a mere claim filed for the issuance of a CADC or CADT will already provide those who filed the application, the authority or right to stop the renewal or issuance of any concession, license or lease or any production-sharing agreement. The same interpretation will give such applicants through a mere application the right to stop or suspend any project that they can cite for not satisfying the requirements of the consultation process of R.A. 8371. If such interpretation gets enshrined in the statures of the land, the unscrupulous and the extortionists can put any ongoing or future project or activity to a stop in any part of the country citing their right from having filed an application for issuance of a CADC or CADT claim and the legal doctrine established by the Supreme Court in this PICOP case.[85] We are not sure whether PICOPs counsels are deliberately trying to mislead us, or are just plainly ignorant of basic precepts of law. The term claim in the phrase claim of ownership is not a document of any sort. It is an attitude towards something. The phrase claim of ownership means the possession of a piece of property with the intention of claiming it in hostility to the true owner.[86] It is also defined as a partys manifest intention to take over land, regardless of title or right.[87] Other than in Republic Act No. 8371, the phrase claim of ownership is thoroughly discussed in issues relating to acquisitive prescription in Civil Law. Before PICOPs counsels could attribute to us an assertion that a mere attitude or intention would stop the renewal or issuance of any concession, license or lease or any production-sharing agreement, we should stress beforehand that this attitude or intention must be clearly shown by overt acts and, as required by Section 3(a), should have been in existence since time immemorial, continuously to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings entered into by government and private individuals/corporations. Another argument of PICOP involves the claim itself that there was no overlapping:

Second, there could be no overlapping with any Ancestral Domain as proven by the evidence presented and testimonies rendered during the hearings in the Regional Trial Court. x x x. x x x x. 88. The DENR issued a total of 73 CADCs as of December 11, 1996. The DENR Undersecretary for Field Operations had recommended another 11 applications for issuance of CADCs. None of the CADCs overlap the TLA 43 area. 89. However former DENR Secretary Alvarez, in a memorandum dated 13 September, 2002 addressed to PGMA, insisted that PICOP had to comply with the requirement to secure a Free and Prior Informed Concent because CADC 095 was issued covering 17,112 hectares of TLA 43. 90. This CADC 095 is a fake CADC and was not validly released by the DENR. While the Legal Department of the DENR was still in the process of receiving the filings for applicants and the oppositors to the CADC application, PICOP came across filed copies of a CADC 095 with the PENRO of Davao Oriental as part of their application for a Community Based Forest Management Agreement (CBFMA). Further research came across the same group filing copies of the alleged CADC 095 with the Mines and Geosciences Bureau in Davao City for a mining agreement application. The two applications had two different versions of the CADCs second page. One had Mr. Romeo T. Acosta signing as the Social reform Agenda Technical Action Officer, while the other had him signing as the Head, Community-Based Forest Management Office. One had the word Eight crossed out and Seven written to make it appear that the CADC was issued on September 25, 1997, the other made it appear that there were no alterations and the date was supposed to be originally 25 September 1997.

What is required in Section 59 of Republic Act No. 8379 is a Certification from the NCIP that there was no overlapping with any Ancestral Domain. PICOP cannot claim that the DENR gravely abused its discretion for requiring this Certification, on the ground that there was no overlapping. We reiterate that it is manifestly absurd to claim that the subject lands must first be proven to be part of ancestral domains before a certification that they are not can be required. As discussed in the assailed Decision, PICOP did not even seek any certification from the NCIP that the area covered by TLA No. 43, subject of its IFMA conversion, did not overlap with any ancestral domain.[88] Sanggunian Consultation and Approval While PICOP did not seek any certification from the NCIP that the formers concession area did not overlap with any ancestral domain, PICOP initially sought to comply with the requirement under Sections 26 and 27 of the Local Government Code to procure prior approval of the Sanggunians concerned. However, only one of the many provinces affected approved the issuance of an IFMA to PICOP. Undaunted, PICOP nevertheless submitted to the DENR the purported resolution[89] of the Province of Surigao del Sur indorsing the approval of PICOPs application for IFMA conversion, apparently hoping either that the disapproval of the other provinces would go unnoticed, or that the Surigao del Sur approval would be treated as sufficient compliance. Surprisingly, the disapproval by the other provinces did go unnoticed before the RTC and the Court of Appeals, despite the repeated assertions thereof by the Solicitor General. When we pointed out in the assailed Decision that the approval must be by all the Sanggunians concerned

and not by only one of them, PICOP changed its theory of the case in its Motion for Reconsideration, this time claiming that they are not required at all to procure Sanggunian approval. Sections 2(c), 26 and 27 of the Local Government Code provide: SEC. 2.x x x. xxxx (c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic consultations with appropriate local government units, nongovernmental and peoples organizations, and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions.

SEC. 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. It shall be the duty of every national agency or government-owned or controlled corporation authorizing or involved in the planning and implementation of any project or program that may cause pollution, climatic change, depletion of non-renewable resources, loss of crop land, rangeland, or forest cover, and extinction of animal or plant species, to consult with the local government units, nongovernmental organizations, and other sectors concerned and explain the goals and objectives of the project or program, its impact upon the people and the community in terms of environmental or ecological balance, and the measures that will be undertaken to prevent or minimize the adverse effects thereof. SEC. 27. Prior Consultations Required. No project or program shall be implemented by government authorities unless the consultations mentioned in Sections 2(c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained: Provided, That occupants in areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites have been provided, in accordance with the provisions of the Constitution.

As stated in the assailed Decision, the common evidence of the DENR Secretary and PICOP, namely, the 31 July 2001 Memorandum of Regional Executive Director (RED) Elias D. Seraspi, Jr., enumerated the local government units and other groups which had expressed their opposition to PICOPs application for IFMA conversion: 7. During the conduct of the performance evaluation of TLA No. 43 issues complaints against PRI were submitted thru Resolutions and letters. It is important that these are included in this report for assessment of what are their worth, viz: xxxx 7.2 Joint Resolution (unnumbered), dated March 19, 2001 of the Barangay Council and Barangay Tribal Council of Simulao, Boston, Davao Oriental (ANNEX F) opposing the conversion of TLA No. 43 into IFMA over the 17,112 hectares allegedly covered with CADC No. 095. Resolution Nos. 10, s-2001 and 05, s-2001 (ANNEXES G & H) of the Bunawan Tribal Council of Elders (BBMTCE) strongly

7.3

demanding none renewal of PICOP TLA. They claim to be the rightful owner of the area it being their alleged ancestral land. 7.4 Resolution No. 4, S-2001 of Sitio Linao, San Jose, Bislig City (ANNEX I) requesting not to renew TLA 43 over the 900 hectares occupied by them. Resolution No. 22, S-2001 (ANNEX J) of the Sanguniang Bayan, Lingig, Surigao del Sur not to grant the conversion of TLA 43 citing the plight of former employees of PRI who were forced to enter and farm portion of TLA No. 43, after they were laid off. SP Resolution No. 2001-113 and CDC Resolution Nos. 09-2001 of the Sanguniang Panglungsod of Bislig City (ANNEXES K & L) requesting to exclude the area of TLA No. 43 for watershed purposes. Resolution No. 2001-164, dated June 01, 2001 (ANNEX M) Sanguniang Panglungsod of Bislig City opposing the conversion of TLA 43 to IFMA for the reason that IFMA do not give revenue benefits to the City.[90]

7.5

7.6

7.7

PICOP had claimed that it complied with the Local Government Code requirement of obtaining prior approval of the Sanggunian concerned by submitting a purported resolution [91] of the Province of Surigao del Sur indorsing the approval of PICOPs application for IFMA conversion. We ruled that this cannot be deemed sufficient compliance with the foregoing provision. Surigao del Sur is not the only province affected by the area covered by the proposed IFMA. As even the Court of Appeals found, PICOPs TLA No. 43 traverses the length and breadth not only of Surigao del Sur but also of Agusan del Sur, Compostela Valley and Davao Oriental.[92] On Motion for Reconsideration, PICOP now argues that the requirement under Sections 26 and 27 does not apply to it: 97. PICOP is not a national agency. Neither is PICOP government owned or controlled. Thus Section 26 does not apply to PICOP. 98. It is very clear that Section 27 refers to projects or programs to be implemented by government authorities or government-owned and controlled corporations. PICOPs project or the automatic conversion is a purely private endevour. First the PICOP project has been implemented since 1969. Second, the project was being implemented by private investors and financial institutions. 99. The primary government participation is to warrant and ensure that the PICOP project shall have peaceful tenure in the permanent forest allocated to provide raw materials for the project. To rule now that a project whose foundations were commenced as early as 1969 shall now be subjected to a 1991 law is to apply the law retrospectively in violation of Article 4 of the Civil Code that laws shall not be applied retroactively. 100. In addition, under DAO 30, Series of 1992, TLA and IFMA operations were not among those devolved function from the National Government / DENR to the local government unit. Under its Section 03, the devolved function cover only: a) Community Based forestry projects.

b) c)

Communal forests of less than 5000 hectares Small watershed areas which are sources of local water supply.[93]

We have to remind PICOP again of the contents of Section 2, Article XII of the Constitution: Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into coproduction, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.

All projects relating to the exploration, development and utilization of natural resources are projects of the State. While the State may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by these citizens, such as PICOP, the projects nevertheless remain as State projects and can never be purely private endeavors. Also, despite entering into co-production, joint venture, or production-sharing agreements, the State remains in full control and supervision over such projects. PICOP, thus, cannot limit government participation in the project to being merely its bouncer, whose primary participation is only to warrant and ensure that the PICOP project shall have peaceful tenure in the permanent forest allocated to provide raw materials for the project. PICOP is indeed neither a national agency nor a government-owned or controlled corporation. The DENR, however, is a national agency and is the national agency prohibited by Section 27 from issuing an IFMA without the prior approval of the Sanggunian concerned. As previously discussed, PICOPs Petition for Mandamus can only be granted if the DENR Secretary is required by law to issue an IFMA. We, however, see here the exact opposite: the DENR Secretary was actually prohibited by law from issuing an IFMA, as there had been no prior approval by all the other Sanggunians concerned. As regards PICOPs assertion that the application to them of a 1991 law is in violation of the prohibition against the non-retroactivity provision in Article 4 of the Civil Code, we have to remind PICOP that it is applying for an IFMA with a term of 2002 to 2027. Section 2, Article XII of the Constitution allows exploitation agreements to last only for a period not exceeding twenty-five years, renewable for not more than twenty-five years. PICOP, thus, cannot legally claim that the projects term started in 1952 and extends all the way to the present. Finally, the devolution of the project to local government units is not required before Sections 26 and 27 would be applicable. Neither Section 26 nor 27 mentions such a requirement. Moreover, it is not only the letter, but more importantly the spirit of Sections 26 and 27, that shows that the devolution of the project is not required. The approval of the Sanggunian concerned is required by law, not because the local government has control over such project, but because the local government has the duty to protect its constituents and their

stake in the implementation of the project. Again, Section 26 states that it applies to projects that may cause pollution, climatic change, depletion of non-renewable resources, loss of crop land, rangeland, or forest cover, and extinction of animal or plant species. The local government should thus represent the communities in such area, the very people who will be affected by flooding, landslides or even climatic change if the project is not properly regulated, and who likewise have a stake in the resources in the area, and deserve to be adequately compensated when these resources are exploited. Indeed, it would be absurd to claim that the project must first be devolved to the local government before the requirement of the national government seeking approval from the local government can be applied. If a project has been devolved to the local government, the local government itself would be implementing the project. That the local government would need its own approval before implementing its own project is patently silly. EPILOGUE AND DISPOSITION PICOPc cause of action consists in the allegation that the DENR Secretary, in not issuing an IFMA, violated its constitutional right against non-impairment of contracts. We have ruled, however, that the 1969 Document is not a contract recognized under the non-impairment clause, much less a contract specifically enjoining the DENR Secretary to issue the IFMA. The conclusion that the 1969 Document is not a contract recognized under the non-impairment clause has even been disposed of in another case decided by another division of this Court, PICOP Resources, Inc. v. Base Metals Mineral Resources Corporation,[94] the Decision in which case has become final and executory. PICOPs Petition for Mandamus should, therefore, fail. Furthermore, even if we assume for the sake of argument that the 1969 Document is a contract recognized under the non-impairment clause, and even if we assume for the sake of argument that the same is a contract specifically enjoining the DENR Secretary to issue an IFMA, PICOPs Petition for Mandamus must still fail. The 1969 Document expressly states that the warranty as to the tenure of PICOP is subject to compliance with constitutional and statutory requirements as well as with existing policy on timber concessions. Thus, if PICOP proves the two above-mentioned matters, it still has to prove compliance with statutory and administrative requirements for the conversion of its TLA into an IFMA. While we have withdrawn our pronouncements in the assailed Decision that (1) PICOP had not submitted the required forest protection and reforestation plans, and that (2) PICOP had unpaid forestry charges, thus effectively ruling in favor of PICOP on all factual issues in this case, PICOP still insists that the requirements of an NCIP certification and Sanggunian consultation and approval do not apply to it. To affirm PICOPs position on these matters would entail nothing less than rewriting the Indigenous Peoples Rights Act and the Local Government Code, an act simply beyond our jurisdiction. WHEREFORE, the Motion for Reconsideration of PICOP Resources, Inc. is DENIED. SO ORDERED.

Republic of the Philippines Supreme Court Manila

EN BANC

CONRADO QUE, Complainant,

A.C. No. 7054 PUNO, C J., CARPIO, CORONA, CARPIO MORALES, CHICO-NAZARIO, VELASCO, JR., NACHURA,

versus

LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, and VILLARAMA, JR., JJ.

ATTY. ANASTACIO REVILLA, JR. Respondent.

Promulgated:

December 4, 2009 x ------------------------------------------------------------------------------------------------------- x

DECISION PER CURIAM:

In a complaint for disbarment,[1] Conrado Que (complainant) accused Atty. Anastacio Revilla, Jr. (respondent) before the Integrated Bar of the

Philippines Committee on Bar Discipline (IBP Committee on Bar Discipline or CBD) of committing the following violations of the provisions of the Code of Professional Responsibility and Rule 138 of the Rules of Court:

(1) The respondents abuse of court remedies and processes by filing a petition for certiorari before the Court of Appeals (CA), two petitions for annulment of title before the Regional Trial Court (RTC), a petition for annulment of judgment before the RTC and lastly, a petition for declaratory relief before the RTC (collectively, subject cases) to assail and overturn the final judgments of the Metropolitan Trial Court[2] (MeTC) and RTC[3] in the unlawful detainer case rendered against the respondents clients. The respondent in this regard, repeatedly raised the issue of lack of jurisdiction by the MeTC and RTC knowing fully-well that these courts have jurisdiction over the unlawful detainer case. The respondent also repeatedly attacked the complainants and his siblings titles over the property subject of the unlawful detainer case;

(2) The respondents commission of forum-shopping by filing the subject cases in order to impede, obstruct, and frustrate the efficient administration of justice for his own personal gain and to defeat the right of the complainant and his siblings to execute the MeTC and RTC judgments in the unlawful detainer case;

(3) The respondents lack of candor and respect towards his adversary and the courts by resorting to falsehood and deception to misguide, obstruct and impede the due administration of justice. The respondent asserted falsehood in the motion for reconsideration of the dismissal of the petition for annulment of judgment by fabricating an imaginary order issued by the presiding judge in open court which allegedly denied the motion to dismiss filed by the respondents in the said case. The complainant alleged that the respondent did this to cover up his lack of preparation; the respondent also deceived his clients (who were all squatters) in supporting the above falsehood.[4]

(4) The respondents willful and revolting falsehood that unjustly maligned and defamed the good name and reputation of the late Atty. Alfredo Catolico (Atty. Catolico), the previous counsel of the respondents clients.

(5) The respondents deliberate, fraudulent and unauthorized appearances in court in the petition for annulment of judgment for 15 litigants, three of whom are already deceased; (6) The respondents willful and fraudulent appearance in the second petition for annulment of title as counsel for the Republic of the Philippines without being authorized to do so.

Additionally, the complaint accused the respondent of representing fifty-two (52) litigants in Civil Case No. Q-03-48762 when no such authority was ever given to him.

The CBD required the respondent to answer the complaint.

In his Answer,[5] the respondent declared that he is a member of the Kalayaan Development Cooperative (KDC) that handles pro bono cases for the underprivileged, the less fortunate, the homeless and those in the marginalized sector in Metro Manila. He agreed to take over the cases formerly handled by other KDC members. One of these cases was the unlawful detainer case handled by the late Atty. Catolico where the complainant and his siblings were the plaintiffs and the respondents present clients were the defendants.

With respect to paragraph 1 of the disbarment complaint, the respondent professed his sincerity, honesty and good faith in filing the petitions complained of; he filed these petitions to protect the interests of his clients in their property. The respondent asserted that these petitions were all based on valid grounds the lack of jurisdiction of the MeTC and the RTC over the underlying unlawful detainer case, the extrinsic fraud committed by the late Atty. Catolico, and the extrinsic fraud committed by the complainant and his family against his clients; he discovered that the allegedly detained property did not really belong to the complainant and his family but is a forest land. The respondent also asserted that his resort to a petition for annulment of judgment and a petition for declaratory relief to contest the final judgments of the MeTC and RTC were all parts of his legal strategy to protect the interests of his clients.

On the allegations of falsehood in the motion for reconsideration of the order of dismissal of the petition for annulment of judgment (covered by paragraph 3 of the disbarment complaint), the respondent maintained that his allegations were based on his observations and the notes he had taken during the proceedings on what the presiding judge dictated in open court.

The respondent denied that he had made any unauthorized appearance in court (with respect to paragraphs 5 and 6 of the disbarment complaint). He claimed that the 52 litigants in Civil Case No. Q-03-48762 were impleaded by inadvertence; he immediately rectified his error by dropping them from the case. On the petition for annulment of judgment, the respondent claimed that a majority (31 out of 49) of the litigants who signed the certification constituted sufficient compliance with the rules on forum-shopping. The respondent likewise denied having represented the Republic of the Philippines in the second petition for annulment of title. The respondent pointed out that there was no allegation whatsoever that he was the sole representative of both the complainants (his clients) and the Republic of the Philippines. The respondent pointed out that the petition embodied a request to the Office of the Solicitor General to represent his clients in the case.[6]

The respondent submitted that he did not commit any illegal, unlawful, unjust, wrongful or immoral acts towards the complainant and his siblings. He stressed that he acted in good faith in his dealings with them and his conduct was consistent with his sworn duty as a lawyer to uphold justice and the law and to defend the interests of his clients. The respondent additionally claimed that the disbarment case was filed because the complainants counsel, Atty. Cesar P. Uy (Atty. Uy), had an axe to grind against him.

Lastly, the respondent posited in his pleadings[7] before the IBP that the present complaint violated the rule on forum shopping considering that the subject cases were also the ones on

which a complaint was filed against him in CBD Case No. 03-1099 filed by Atty. Uy before the IBP Committee on Bar Discipline. The respondent also posited that the present complaint was filed to harass, ridicule and defame his good name and reputation and, indirectly, to harass his clients who are marginalized members of the KDC.

The Findings of the Investigating Commissioner

Except for the last charge of unauthorized appearance on behalf of 52 litigants in Civil Case No. Q-03-48762, Investigating Commissioner Renato G. Cunanan[8](Investigating Commissioner Cunanan) found all the charges against the respondent meritorious. In his Report and Recommendation, he stated:

While an attorney admittedly has the solemn duty to defend and protect the cause and rights of his client with all the fervor and energy within his command, yet, it is equally true that it is the primary duty of the lawyer to defend the dignity, authority and majesty of the law and the courts which enforce it. A lawyer is not at liberty to maintain and defend the cause of his clients thru means, inconsistent with truth and honor. He may not and must not encourage multiplicity of suits or brazenly engage in forum-shopping.[9]

On the first charge on abuse of court processes, Investigating Commissioner Cunanan noted the unnecessary use by the respondent of legal remedies to forestall the execution of the final decisions of the MTC and the RTC in the unlawful detainer case against his clients.[10]

On the second charge, the Investigating Commissioner ruled that the act of the respondent in filing two petitions for annulment of title, a petition for annulment of judgment and later on a petition for declaratory relief were all done to prevent the execution of the final judgment in the unlawful detainer case and constituted prohibited forum-shopping.[11]

On the third and fourth charges, Investigating Commissioner Cunanan found ample evidence showing that the respondent was dishonest in dealing with the court as shown in his petition for annulment of judgment; he resorted to falsities and attributed acts to Atty. Catolico and to the presiding judge, all of which were untrue. [12]

On the fifth and sixth charges, the Investigating Commissioner disregarded the respondents explanation that he had no intention to represent without authority 15 of the litigants (three of whom were already deceased) in the petition for annulment of judgment (Civil Case No. Q-01-45556). To the Investigating Commissioner, the respondent merely glossed over the representation issue by claiming that the authority given by a majority of the litigants complied with the certification of non-forum shopping requirement. The Investigating Commissioner likewise brushed aside the respondents argument regarding his misrepresentation in the second complaint for annulment of title since he knew very well that only the Solicitor General can institute an action for reversion on behalf of the Republic of the Philippines. Despite this knowledge, the respondent solely signed the amended complaint for and on behalf of his clients and of the Republic.

The Board of Governors of the IBP Committee on Bar Discipline, through its Resolution No. XVII-2005-164 on CBD Case No. 03-1100, adopted and approved the Report and Recommendation of Investigating Commissioner Cunanan and recommended that the respondent be suspended from the practice of law for two (2) years.[13] On reconsideration, the Board of Governors reduced the respondents suspension from the practice of law to one (1) year.[14]

The Issue

The case poses to us the core issues of whether the respondent can be held liable for the imputed unethical infractions and professional misconduct, and the penalty these transgressions should carry.

The Courts Ruling

Except for the penalty, we agree with the Report and Recommendation of Investigating Commissioner Cunanan and the Board of Governors of the IBP Committee on Bar Discipline.

We take judicial notice that this disbarment complaint is not the only one so far filed involving the respondent; another complaint invoking similar grounds has previously been filed. In Plus Builders, Inc. and Edgardo C. Garcia v. Atty. Anastacio E. Revilla, Jr.,[15] we suspended the respondent from the practice of law for his willful and intentional falsehood before the court; for misuse of court procedures and processes to delay the execution of a judgment; and for collaborating with non-lawyers in the illegal practice of law. We initially imposed a suspension of two (2) years, but in an act of leniency subsequently reduced the suspension to six (6) months.[16] Abuse of court procedures and processes

The following undisputed facts fully support the conclusion that the respondent is guilty of serious misconduct for abusing court procedures and processes to shield his clients from the execution of the final judgments of the MeTC and RTC in the unlawful detainer case against these clients:

First, the respondent filed a petition for certiorari (docketed as CA-G.R. SP No. 53892) with prayer for the issuance of preliminary injunction and temporary restraining order to question the final judgments of the MeTC and RTC for lack of jurisdiction. In dismissing the respondents petition, the CA held:

Even for the sake of argument considering that the petition case be the proper remedy, still it must be rejected for failure of petitioners to satisfactorily demonstrate lack of jurisdiction on the part of the Metropolitan Trial Court of Quezon City over the ejectment case.[17]

Second, notwithstanding the CAs dismissal of the petition for certiorari, the respondent again questioned the MeTCs and the RTCs lack of jurisdiction over the unlawful detainer case in a petition for annulment of judgment (docketed as Civil Case No. Q-01-45556) before the RTC with an ancillary prayer for the grant of a temporary restraining order and preliminary injunction. The RTC dismissed this petition on the basis of the motion to dismiss filed.[18]

Third, the respondent successively filed two petitions (docketed as Civil Case No. Q-9938780 and Civil Case No. Q-02-46885) for annulment of the complainants title to the property involved in the unlawful detainer case. The records show that these petitions were both dismissed for lack of legal personality on the part of the plaintiffs to file the petition.[19]

Fourth, after the dismissals of the petition for annulment of judgment and the petitions for annulment of title, the respondent this time filed a petition for declaratory relief with prayer for a writ of preliminary injunction to enjoin the complainant and his siblings from exercising their rights over the same property subject of the unlawful detainer case. The respondent based the petition on the alleged nullity of the complainants title because the property is a part of forest land.

Fifth, the persistent applications by the respondent for injunctive relief in the four petitions he had filed in several courts the petition for certiorari, the petition for annulment of judgment, the second petition for annulment of complainants title and the petition for declaratory relief reveal the respondents persistence in preventing and avoiding the execution of the final decisions of the MeTC and RTC against his clients in the unlawful detainer case.

Under the circumstances, the respondents repeated attempts go beyond the legitimate means allowed by professional ethical rules in defending the interests of his client. These are already uncalled for measures to avoid the enforcement of final judgments of the MeTC and RTC. In these attempts, the respondent violated Rule 10.03, Canon 10 of the Code of Professional Responsibility which makes it obligatory for a lawyer to observe the rules of procedure and. . . not [to] misuse them to defeat the ends of justice. By his actions, the respondent used procedural rules to thwart and obstruct the speedy and efficient administration of justice, resulting in prejudice to the winning parties in that case.[20]

Filing of multiple actions and forum shopping

The respondent likewise violated Rule 12.02 and Rule 12.04, Canon 12 of the Code of Professional Responsibility,[21] as well as the rule against forum shopping, both of which are directed against the filing of multiple actions to attain the same objective. Both violations constitute abuse of court processes; they tend to degrade the administration of justice; wreak havoc on orderly judicial procedure;[22] and add to the congestion of the heavily burdened dockets of the courts.[23]

While the filing of a petition for certiorari to question the lower courts jurisdiction may be a procedurally legitimate (but substantively erroneous) move, the respondents subsequent petitions involving the same property and the same parties not only demonstrate his attempts to secure favorable ruling using different fora, but his obvious objective as well of preventing the execution of the MeTC and RTC decisions in the unlawful detainer case against his clients. This intent is most obvious with respect to the petitions for annulment of judgment and declaratory relief, both geared towards preventing the execution of the unlawful detainer decision, long after this decision had become final.

Willful, intentional and deliberate falsehood before the courts

The

records

also

reveal

that

the

respondent

committed

willful,

intentional and deliberate falsehood in the pleadings he filed with the lower courts.

First, in the petition for annulment of judgment filed before the RTC, Branch 101, Quezon City, the respondent cited extrinsic fraud as one of the grounds for the annulment sought. The extrinsic fraud was alleged in the last paragraph of the petition, as follows:

In here, counsel for the petitioners (defendants therein), deliberately neglected to file the proper remedy then available after receipt of the denial of their Motion for Reconsideration thus corruptly sold out the interest of the petitioners (defendants therein) by keeping them away to the Court and in complete ignorance of the suit by a false pretense of compromise and fraudulent acts of alleging representing them when in truth and in fact, have connived with the attorney of the prevailing party at his defeat to the prejudice of the petitioner (defendants therein) [24]

Yet, in paragraph 35 of the same petition, the respondent alleged that no second motion for reconsideration or for new trial, or no other petition with the CA had been filed, as he believed that the decisions rendered both by the MeTC and the RTC are null and void.[25] These conflicting claims, no doubt, involve a fabrication made for the purpose of supporting the petition for annulment. Worse, it involved a direct and unsubstantiated attack on the reputation of a law office colleague, another violation we shall separately discuss below.

Second, the respondent employed another obvious subterfuge when he filed his second petition for annulment of title, which was an unsuccessful attempt to circumvent the rule that only the Solicitor General may commence reversion proceedings of public lands [26] on behalf of the Republic of the Philippines. This second petition, filed by a private party and not by the Republic, showed that: (a) the respondent and his clients requested that they be represented by the Solicitor General in the proceedings; (b) the Republic of the Philippines was simply impleaded in the amended petition without its consent as a plaintiff; and (c) the respondent signed the amended petition where he alone stood as counsel for the plaintiffs. In this underhanded manner, the respondent sought to compel the Republic to litigate and waste its resources on an unauthorized and unwanted suit.

Third, the respondent also committed falsehood in his motion for reconsideration of the order dismissing his petition for annulment of judgment where he misrepresented to the court and his clients what actually transpired in the hearing of June 28, 2002 in this wise:

Likewise, the proceedings on said date of hearing (June 28, 2002) show, that after both counsel have argued on the aforesaid pending incident, the Honorable Presiding Judge, in open court, and in the presence and within the hearing distance of all the plaintiffs and their counsel as well as the counsel of the defendants resolved: TO DENY THE MOTION TO DISMISS FILED AND DIRECTED DEFENDANTS COUNSEL TO FILE AN ANSWER TO THE COMPLAINT WITHIN THE REMAINING PERIOD.[27][Underscoring and emphasis theirs]

The records, however, disclose that the scheduled hearing for June 28, 2002 was actually for the respondents application for temporary restraining order and was not a hearing on the adverse partys motion to dismiss.[28] The records also show that RTC-Branch 101 held in abeyance the respondents application for injunctive relief pending the resolution of the motion to dismiss filed by the adverse party.[29] As stated in the order of the Presiding Judge of RTCBranch 101:

Browsing over the records of this case specifically the transcripts of stenographic notes as transcribed by the Stenographer, the same will indicate that the allegations in the Motion for Reconsideration are not true.

how can this Court make a ruling on the matter even without stating the factual and legal bases as required/mandated by the Rules. Moreover, there are no indications or iota of irregularity in the preparation by Stenographer of the transcripts, and by the Court interpreter of the Minutes of the open Court session.[Underscoring theirs] The records further disclose that despite knowledge of the falsity of his allegations, the respondent took advantage of his position and the trust reposed in him by his clients (who are all squatters) to convince them to support, through their affidavits, his false claims on what allegedly transpired in the June 28, 2002 hearing. [30]

For these acts, we find the respondent liable under Rule 10.01 of Canon 10 the Code of Professional Responsibility for violating the lawyers duty to observe candor and fairness in his dealings with the court. This provision states:

CANON 10 A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO THE COURT

Rule 10.01 A lawyer shall not do any falsehood, nor consent to the doing of any in Court, nor shall he mislead or allow the Court to be mislead by an artifice.

Likewise, the respondent violated his duty as an attorney and his oath as a lawyer never to mislead the judge or any judicial officer by an artifice or false statement of fact or law.[31] The respondent failed to remember that his duty as an officer of the court makes him an indispensable participant in the administration of justice,[32] and that he is expected to act candidly, fairly and truthfully in his work.[33] His duty as a lawyer obligates him not to conceal the truth from the court, or to mislead the court in any manner, no matter how demanding his duties to his clients may be.[34] In case of conflict, his duties to his client yield to his duty to deal candidly with the court.[35]

In defending his clients interest, the respondent also failed to observe Rule 19.01, Canon 19 of the Code of Professional Responsibility, which reads:

CANON 19 A LAWYER SHALL REPRESENT HIS CLIENT WITH ZEAL WITHIN THE BOUNDS OF LAW

Rule 19.01 A lawyer shall employ only fair and honest means to attain the lawful objectives of his clients x x x

This Canon obligates a lawyer, in defending his client, to employ only such means as are consistent with truth and honor.[36] He should not prosecute patently frivolous and meritless appeals or institute clearly groundless actions.[37] The recital of what the respondent did to prevent the execution of the judgment against his clients shows that he actually committed what the above rule expressly prohibits.

Maligning the name of his fellow lawyers

To support the charge of extrinsic fraud in his petition for annulment of judgment, the respondent attacked (as quoted above) the name and reputation of the late Atty. Catolico and accused him of deliberate neglect, corrupt motives and connivance with the counsel for the adverse party.

We find it significant that the respondent failed to demonstrate how he came upon his accusation against Atty. Catolico. The respondent, by his own admission, only participated in the cases previously assigned to Atty. Catolico after the latter died. At the same time, the respondents petition for annulment of judgment also represented that no second motion for reconsideration or appeal was filed to contest the MeTC and RTC decisions in the unlawful detainer case for the reason that the respondent believed the said decisions were null and void ab initio.

Under these circumstances, we believe that the respondent has been less than fair in his professional relationship with Atty. Catolico and is thus liable for violating Canon 8 of the Code of Professional Responsibility, which obligates a lawyer to conduct himself with courtesy, fairness, and candor toward his professional colleagues. He was unfair because he imputed wrongdoing to Atty. Catolico without showing any factual basis therefor; he effectively maligned Atty. Catolico, who is now dead and unable to defend himself.

Unauthorized appearances

We support Investigating Commissioner Cunanans finding that the respondent twice represented parties without proper authorization: first, in the petition for annulment of judgment; and second, in the second petition for annulment of title.[38]

In the first instance, the records show that the respondent filed the petition for annulment of judgment on behalf of 49 individuals, 31 of whom gave their consent while the other 15 individuals did not. We cannot agree with the respondents off-hand explanation that he truly believed that a majority of the litigants who signed the certification of non-forum shopping in the petition already gave him the necessary authority to sign for the others. We find it highly improbable that this kind of lapse could have been committed by a seasoned lawyer like the respondent, who has been engaged in the practice of law for more than 30 years and who received rigid and strict training as he so proudly declares, from the University of the Philippines College of Law and in the two law firms with which he was previously associated.[39] As Investigating Commissioner Cunanan found, the respondents explanation of compliance with the rule on the certification of non-forum shopping glossed over the real charge of appearing in court without the proper authorization of the parties he allegedly represented.

In the second instance, which occurred in the second complaint for annulment of title, the respondent knew that only the Solicitor General can legally represent the Republic of the Philippines in actions for reversion of land. Nevertheless, he filed an amended petition where he impleaded the Republic of the Philippines as plaintiff without its authority and consent, as a surreptitious way of forcing the Republic to litigate. Notably, he signed the amended complaint on behalf of all the plaintiffs his clients and the Republic.

In both instances, the respondent violated Sections 21 and 27, Rule 138 of the Rules of Court when he undertook the unauthorized appearances. The settled rule is that a lawyer may not represent a litigant without authority from the latter or from the latters representative or, in the absence thereof, without leave of court.[40] The willful unauthorized appearance by a lawyer for a party in a given case constitutes contumacious conduct and also warrants disciplinary measures against the erring lawyer for professional misconduct.[41]

The Respondents Defenses

We find no merit in the respondents defenses.

Good faith connotes an honest intention to abstain from taking unconscientious advantage of another. Accordingly, in University of the East v. Jader we said that "[g]ood faith connotes an honest intention to abstain from taking undue advantage of another, even though the forms and technicalities of law, together with the absence of all information or belief of facts, would render the transaction unconscientious."[42] Bad faith, on the other hand, is a state of mind affirmatively operating with furtive design or with some motive of self-interest, ill will or for an ulterior purpose.[43] As both concepts are states of mind, they may be deduced from the attendant circumstances and, more particularly, from the acts and statements of the person whose state of mind is the subject of inquiry.

In this case, we find that the respondent acted in bad faith in defending the interests of his clients. We draw this conclusion from the misrepresentations and the dubious recourses he made, all obviously geared towards forestalling the execution of the final judgments of the MeTC and RTC. That he took advantage of his legal knowledge and experience and misread the Rules immeasurably strengthen the presence of bad faith.

We find neither sincerity nor honest belief on the part of the respondent in pleading the soundness and merit of the cases that he filed in court to prevent the execution of the MeTC and RTC decisions, considering his own conduct of presenting conflicting theories in his petitions. The succession of cases he filed shows a desperation that negates the sincere and honest belief he claims; these are simply scattershot means to achieve his objective of avoiding the execution of the unlawful detainer judgment against his clients.

On the respondents allegations regarding his discretion to determine legal strategy, it is not amiss to note that this was the same defense he raised in the first disbarment case.[44] As we explained in Plus Builders, the exercise of a lawyers discretion in acting for his client can never be at the expense of truth and justice. In the words of this cited case:

While a lawyer owes absolute fidelity to the cause of his client, full devotion to his genuine interest, and warm zeal in the maintenance and defense of his rights, as well as the exertion of his utmost learning and ability, he must do so only within the bounds of the law. He must give a candid and honest opinion on the merits and probable results of his clients case with the end in view of promoting respect for the law and legal processes, and counsel or maintain such actions or proceedings only as appear to him to be just, and such defenses only as he believes to be honestly debatable under the law. He must always remind himself of the oath he took upon admission to the Bar that he will not wittingly or willingly promote or sue any groundless, false or unlawful suit nor give aid nor consent to the same; and that he will conduct [himself] as a lawyer accord ing to the best of [his] knowledge and discretion with all good fidelity as well to the courts as to [his] clients. Needless to state, the lawyers fidelity to his client must not be pursued at the expense of truth and the administration of justice, and it must be done within the bounds of reason and common sense. A lawyers responsibility to protect and advance the interests of his client does not warrant a course of action propelled by ill motives and malicious intentions against the other party.[45]

We cannot give credence to the respondents claim that the disbarment case was filed because the counsel of the complainant, Atty. Uy, had an axe to grind against him. We reject this argument, considering that it was not Atty. Uy who filed the present disbarment case against him; Atty. Uy is only the counsel in this case. In fact, Atty. Uy has filed his own separate disbarment case against the respondent.

The sui generis nature of a disbarment case renders the underlying motives of the complainants unimportant and with very little relevance. The purpose of a disbarment proceeding is mainly to determine the fitness of a lawyer to continue acting as an officer of the court and a participant in the dispensation of justice an issue where the complainants personal motives have little relevance. For this reason, disbarment proceedings may be initiated by the Court motu proprio upon information of an alleged wrongdoing. As we also explained in the case In re: Almacen:

. . .disciplinary proceedings like the present are sui generis. Neither purely civil nor purely criminal, this proceeding is not - and does not involve - a trial of an action or a suit, but is rather an investigation by the Court into the conduct of one of its officers. Not being intended to inflict punishment, it is in no sense a criminal prosecution.

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 proper 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.[46]

Hence, we give little or no weight to the alleged personal motivation that drove the complainant Que and his counsel to file the present disbarment case.

Conclusion

Based on the foregoing, we conclude that the respondent committed various acts of professional misconduct and thereby failed to live up to the exacting ethical standards imposed on members of the Bar. We cannot agree, however, that only a penalty of one-year suspension from the practice of law should be imposed. Neither should we limit ourselves to the originally recommended penalty of suspension for two (2) years.

Given the respondents multiple violations, his past record as previously discussed, and the nature of these violations which shows the readiness to disregard court rules and to gloss over concerns for the orderly administration of justice, we believe and so hold that the appropriate action of this Court is to disbar the respondent to keep him away from the law profession and from any significant role in the administration of justice which he has disgraced. He is a continuing risk, too, to the public that the legal profession serves. Not even his ardor and overzealousness in defending the interests of his client can save him. Such traits at the expense of everything else, particularly the integrity of the profession and the orderly administration of justice, this Court cannot accept nor tolerate.

Additionally, disbarment is merited because this is not the respondents first ethical infraction of the same nature. We penalized him in Plus Builders, Inc. and Edgardo Garcia versus Atty. Anastacio E. Revilla for his willful and intentional falsehood before the court; for misuse of court procedures and processes to delay the execution of a judgment; and for collaborating with non-lawyers in the illegal practice of law. We showed leniency then by reducing his penalty to suspension for six (6) months. We cannot similarly treat the respondent this time; it is clear that he did not learn any lesson from his past experience and since then has exhibited traits of incorrigibility. It is time to put a finisto the respondents professional legal career for the sake of the public, the profession and the interest of justice.

WHEREFORE, premises considered, we hereby AFFIRM Resolution No. XVII-2005164 dated December 17, 2005 and Resolution No. XVII-2008-657 dated December 11, 2008 of the Board of Governors of the IBP Committee on Bar Discipline insofar as respondent Atty. Anastacio Revilla, Jr. is found liable for professional misconduct for violations of the Lawyers Oath; Canon 8; Rules 10.01 and 10.03, Canon 10; Rules 12.02 and 12.04, Canon 12; Rule 19.01, Canon 19 of the Code of Professional Responsibility; and Sections 20(d), 21 and 27 of Rule 138 of the Rules of Court. However, we modify the penalty the IBP imposed, and hold that the respondent should beDISBARRED from the practice of law.

SO ORDERED.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 171669 December 14, 2009

HEIRS OF RODRIGO YACAPIN, namely: SOL BELNAS, NANCY VALLEJOS, SUSAN YACAPIN, ESTACIO YACAPIN, JULIA YACAPIN, LINDA YACAPIN, JUAN YACAPIN, VICENTE YACAPIN, ADELFA PRENIO, CELSO YACAPIN, JULIE PUNZALAN, RUBEN YACAPIN, EDWIN YACAPIN, NOEL YACAPIN, GONZALO YACAPIN, SALVACION CABABAN, TERESITS DINAGUIT, VICENTA YACAPIN and VICENTE YACAPIN; HEIRS OF ESTEBAN YACAPIN, namely: LUZVIMINDA YACAPIN KEE, ALFONZITA MACALE, EMMANUEL YACAPIN, MARIA BELLA YACAPIN, ESTEBAN YACAPIN II, CONCHITA YACAPIN TAGOCON, FILIPINA EBLACAS, ROSTECO CANADA, EMELY SUYAT, ROLDAN TAGOCON, LEVY CARDONA, LEA GACAYAN, LOTA DAGUITA, LEYRA CARDONA, LAREDO CARDONA, EDNA YACAPIN ABADAY, HELDA DALAGUIT, SALOME Y. GUZMAN, RESSIE Y. DOTDOT, JOSEPINA Y. QUIA, RODOLFO YACAPIN, LEO SAARENAS, RONALDO SAARENAS, ELSA GABUTAN and BELLA YACAPIN-AGUSTIN; HEIRS OF DONATO YACAPIN, namely, PROFETISA DAPANAS, ERMA SALARDA, NARCESO YACAPIN, LUZ Y. CHAVEZ, ANNABELLA YACAPIN, ADELA YACAPIN, THERESA YACAPIN, EDUARDO YACAPIN, DANILO YACAPIN, EVA LISTAN, MERLYN YACAPIN, AMIR YACAPIN, WENCESLAO BUBA, all represented by NANCY YACAPIN VALLEJOS as attorney-in-fact, Petitioners, vs. FELIMON BALIDA (deceased), represented by MERLYN B. PALOS, JOSEPH BALIDA, SELVERIO BALIDA, EXEQUIEL BALIDA, JOSE MARCOS BALIDA, AGATONA PASTOR, ANTONIO BALIDA, GREGORIA BALIDA, represented by LIGAYA BALIDA; ATTY. BONAFEBE LEYSON in his capacity as Register of Deeds of Cagayan de Oro City; Cagayan de Oro City; CHARLIE GO, RUBEN GO and RAC COMMERCIAL CORPORATION, Respondents. DECISION CORONA, J.: This petition1 seeks to set aside the resolutions dated June 4, 20042 and March 6, 20053 of the Court of Appeals (CA) in CA-G.R. SP No. 82968 dismissing the petition to annul the December 5, 1993 decision4 of the Regional Trial Court (RTC) of Cagayan de Oro, Branch 24 in Civil Case Nos. 91-080 and 91-261. At the center of this controversy are three parcels of land in Gusa, Cagayan de Oro City, namely, the 96,919 sq. m. lot no. 2384, the 25,202 sq. m. lot no. 2478 and the 824 sq. m. lot no. 2338. Records of the Registry of Deeds of Cagayan de Oro City reveal that lot no. 2384 was covered by OCT No. RO-363 and registered in the names of Donato Yacapin, Martina Yacapin and Valentina Yacapin. In 1973, petitioners, the respective heirs of Donato and Martina, entered into an extrajudicial settlement partitioning lot no. 2384 among themselves. Pursuant to this agreement, OCT No. RO-363 was cancelled and individual titles were issued to them. The records likewise reveal that lot no. 2478 was covered by OCT No. 7227 issued to Rodrigo Yacapin, Donato Yacapin, Valentina Yacapin, Martina Yacapin, Anastacia Yacapin, Esteban Yacapin and Felino San Jose.

Lastly, lot no. 2338 used to be covered by OCT No. 7318 issued to Valentina Yacapin and Anastacia Yacapin. Pursuant to an extrajudicial settlement executed by respondents, heirs of Valentina, OCT No. 7318 was cancelled and TCT No. T-54890 was issued in lieu thereof. In 1991, respondents filed an action for partition, annulment of titles and damages against petitioners in the RTC.5They asserted that their mother, Valentina, was one of the registered owners of lot no. 2384. Upon her death, they (as compulsory heirs of Valentina) inherited her pro-indiviso share in the said property by operation of law. Since they were excluded in the execution of the extrajudicial settlement, the said agreement was void. Concomitantly, those titles issued in lieu of OCT No. RO-363 were likewise void. Subsequently, petitioners filed a similar action in the same RTC against respondents.6 They claimed that Valentina and Anastacia died single and childless in 1943. Thus, being the nearest collateral relatives of the said registered owners, they inherited the shares of Valentina and Anastacia as their intestate heirs. Petitioners likewise sought to annul TCT No. T-54890 which was issued to respondents. They asserted that respondents could not have been the children of their aunt but of another "Valentina Yacapin" who died in Kiliog, Libona, Bukidnon. Due to the seeming confusion regarding the identity of the parties and issues, the RTC consolidated the complaints and tried them jointly. After trial, the RTC found that the 1973 extrajudicial settlement only involved 53,612 sq. m. out of the 96, 919 sq. m. of lot no. 2384 and, at that time, the remaining portion (or 43,307 sq. m.) was unoccupied. If Valentina indeed died childless in 1943, petitioners, as her only intestate heirs, should have partitioned the entire property unto themselves in 1973 and occupied their respective portions thereafter. But they did not. Thus, it concluded that petitioners must have known that Valentina had children of her own. In a decision dated December 5, 1993, the RTC recognized respondents as Valentina's children and compulsory heirs. It therefore nullified the parties respective titles to lot nos. 2384 and 2338. Furthermore, it ordered the division of the said properties and lot no. 2478 among petitioners, respondents and the heirs of the other registered owners who were not parties to the complaints.1avvphi1 Unsatisfied with the said decision, petitioners filed a notice of appeal on February 14, 1994.7 However, on July 25, 1994, they filed a motion to withdraw appeal stating: [Petitioners] move to withdraw the entire appeal of [the December 5, 1993 decision of the RTC], on the ground that the findings of fact of the trial court are now final and conclusive before the Honorable Court of Appeals, and appellants have no sufficient and convincing evidence.8 (emphasis supplied) In a resolution dated October 12, 1994, the Court of Appeals (CA) granted petitioners' motion and dismissed the appeal.9 The said resolution later became final and entry of judgment was made in due course.10 Subsequently, petitioners moved for new trial on the ground of newly discovered evidence in the RTC but it was denied. Respondents moved for the execution of the December 5, 1993 RTC decision. Accordingly, a partial writ of execution was issued to respondents on April 22, 1995. Undaunted, petitioners moved to quash the said writ but their motion was denied. They therefore filed a petition for certiorari11 in the CA but it was dismissed for lack of merit.12 A decade later, petitioners filed a petition for annulment of judgment13 in the CA, asserting that the December 5, 1993 decision of the RTC was procured through extrinsic fraud. They claimed that the presiding judge of the courta quo colluded with respondents when he admitted as

evidence a falsified death certificate of Valentina. Petitioners asserted that because the said document was not signed by the local civil registrar of Baguyan, Agusan, it was spurious. In a resolution dated June 4, 2004,14 the CA dismissed the petition on the ground that petitioners failed to establish when they discovered the alleged extrinsic fraud. Furthermore, if petitioners had sufficient evidence to prove that the presiding judge colluded with respondents, they should have filed an administrative case against the said judge early on. Petitioners moved for reconsideration but their motion was denied.15 Hence, this recourse, with petitioners insisting that the December 5, 1993 decision of the RTC was procured through extrinsic fraud. They likewise implead as respondents RAC Commercial Corporation, owner of three hectares of land formerly part of lot no. 2384, and its majority shareholders, Charlie Go and Ruben Go. RAC purchased its properties from respondents. We deny the petition. Section 1, Rule 47 of the Rules of Court16 provides that a petition for annulment of judgment is available only when a party is precluded from filing a motion for new trial, an appeal or a petition for relief without fault on his part. Moreover, such petition will only be allowed in the presence of either extrinsic fraud or lack of jurisdiction.17 In view of these provisions, recourse to a petition for annulment of judgment is improper if petitioner lost the ordinary remedies of new trial, appeal or petition for relief due to a cause or causes attributable to petitioner himself. Nor can it be resorted to if petitioner has previously availed of any of the aforementioned remedies. In this case, petitioners filed an appeal and a motion for new trial. They also failed to establish any of the grounds for a petition for annulment of judgment. Obviously, petitioners simply intended to unduly delay the enforcement of the December 5, 1993 RTC decision and defeat its execution. Thus, petitioners should be held solidarily liable with their counsel (who abetted petitioners frivolous appeal, motion for new trial and this petition for annulment of judgment) for treble the costs of suit. WHEREFORE, the petition is hereby DENIED. Treble costs, to be imposed solidarily, against petitioners and their counsel, Atty. Emelie P. Bangot, Jr. SO ORDERED.

FIRST DIVISION CESAR TALENTO and MODESTA HERRERA TALENTO, Petitioners, A.C. No. 7433 [Formerly CBD Case No. 05-1554]

Present:

PUNO, C.J., Chairperson, - versus CARPIO MORALES, LEONARDO-DE CASTRO, BERSAMIN, and VILLARAMA, JR., JJ. ATTY. AGUSTIN F. PANEDA, Respondent. Promulgated: December 23, 2009 x----------------------- -------------------------x DECISION

LEONARDO-DE CASTRO, J.: Before us is the administrative complaint filed by mother and son Modesta Herrera Talento and Cesar Talento charging Atty. Agustin F. Paneda of violation of his oath as a lawyer and neglect of duty.

This case was initiated by petitioners with the filing of a Complaint [1] before the Integrated Bar of the Philippines (IBP) on August 29, 2005. In the said Complaint, petitioners alleged the following:

a. Sometime in October 17, 2000, a civil complaint was filed by Leticia Herrera. The same complaint was raffled to Regional Trial Court Branch 31, Agoo, La Union presided by Hon. Clifton U. Ganay;

b. This case was entitled: LETICIA HERERRA, Plaintiff vs. MODESTA H. TALENTO and CESAR TALENTO as Defendants for Quieting of Title, docketed as Civil Case No. A-2043;

c. [Petitioners] secured the services of Atty. Agustin Paneda to help and defend [them] in the aforementioned case. [Petitioners] paid the attorneys fees he required from [them] in order that [they] could avail of his services as counsel;

d. Atty. Paneda filed [petitioners] answer to the complaint on November 14, 2000 and the case was set for pre-trial. The Honorable Court in an order required both parties counsels to submit their respective pre-trial briefs and appear during the scheduled pre-trial hearing on December 18, 2000;

e. Despite the order and notice to [their] counsel, he did not file or submit a pre-trial brief for [petitioners] behalf. Much more to [their] surprise and predicament, although [petitioners] attended the pre-trial hearing, he did not appear;

f. As a result of his non-appearance, the counsel for the other party spoke of things beyond our knowledge which the Honorable Court granted being expressly stated and provided in the Rules of Court. [Petitioners] were declared in default because of the failure of [their] counsel to file and submit [petitioners] pre-trial brief. The Honorable Court allowed the case to be heard ex parte much to our damage and prejudice;

g. The Honorable Court issued a decision against [petitioners] simply for failure of [their] counsel Atty. Paneda to submit [petitioners] pre-trial brief and for his failure to attend the pre-trial of the case. It was simply because of technicality and not based on the merits of the allegations of both parties that [petitioners] lost the case;

h. Atty. Paneda filed a Motion for Reconsideration dated December 27, 2000, but the same was dismissed by the Honorable Court;

i. Atty. Paneda told [petitioners] that he will appeal the case to the Court of Appeals and [they] agreed because [they were] confident of [petitioners] claim over the parcel of land subject of this case. He filed a notice of appeal on February 8, 2001. [Petitioners] paid the required fees and he even required [petitioners] to shell out more money for the preparation of the Appeal brief;

j. [Petitioners] waited for so long for the decision of the Honorable Court of Appeals and [petitioners] found out later that [petitioners] appeal was dismissed due to lack of an appeal brief only when [petitioners] went to Atty. Paneda.[2]

In the Order[3] dated August 30, 2005 issued by the IBP Commission on Bar Discipline (Commission), respondent was required to submit his Answer to the Complaint within fifteen (15) days from receipt of the notice. Respondent filed his Answer[4] on October 24, 2005.

In his Answer, respondent states that he honestly believed that he had not violated his oath as a lawyer nor did he commit negligence in handling the case of the petitioners. He likewise avers that there were other considerations and incidents which had intervened in the case that produced adverse reactions. He cites as reason for the non-filing of the Pre-trial Brief the fact that, before the date set for pre-trial hearing, respondent was informed by petitioners that they had already entered into an Amicable Settlement with the plaintiff. Respondent advised petitioners to submit the said agreement to the Regional Trial Court (RTC) in lieu of the Pre-trial Brief. Respondent did not appear during the pre-trial conference scheduled in the morning of December 19, 2000 because he chose instead to attend the pre-trial conference of the replevin case involving his personal vehicle inDagupan City which was also set on that same morning.[5] With regard to his failure to file the required Appellants Brief before the Court of Appeals (CA), he points to his secretarys oversight in promptly informing him of the latters receipt of the Notice of Submission of Appellants Brief.[6] Respondent insists that he was not negligent in his practice but there were circumstances beyond his control and were unavoidable. He contends that petitioners should not altogether blame him but they should also accept that the debacle was due to their inaction.[7]

Petitioners refute the foregoing assertions of the respondent.[8] They vehemently deny respondents claim that they allegedly informed him of the Amicable Settlement prior to the date of pre-trial hearing. In fact, they intended to show the document to him for the very first time at the pre-trial conference in which he did not appear. They likewise belie respondents claim that he gave instructions to petitioners on what to do during the pre-trial conference in his absence. They further deny respondents claim that he had informed them beforehand of his inability to attend due to a conflict of schedule. Granting that there was indeed a conflict of schedule, petitioners maintain that respondent is required by Rule 18, Sec. 6 of the Rules of Court[9] to file the Pre-trial Brief at least three (3) days before the date of pre-trial conference. Finally, petitioners insist that, contrary to respondents assertion in his Answer, respondent did not exert his best efforts for his clients because, after negligently abandoning them at the RTC, respondent likewise failed to fulfill his duty of safeguarding their interests in the CA when respondent failed to perform a basic legal requirement of filing an Appeal Brief in order for the said court to take cognizance of their Appeal.

The parties were then required by the Commission to appear at a mandatory conference held on November 30, 2005. Petitioner Cesar Talento appeared together with his counsel, Atty. Matthew L. Dati. Co-petitioner Modesta Herrera Talento executed a Special Power of Attorney in favor of Cesar Talento and Atty. Dati. Respondent appeared on his behalf.

After the termination of the hearing, the parties were directed to file their respective verified position papers within ten (10) days from receipt of the Order[10] and were informed that with or without said position papers, the case shall be deemed submitted for report and recommendation. Only petitioners submitted a Position Paper[11] which was received by the Commission on January 4, 2009.

On April 28, 2006, Commissioner Rebecca Villanueva-Maala submitted her Report and Recommendation finding respondent guilty of gross violation of his duties as a lawyer and of inexcusable negligence with the recommendation that respondent be suspended from the practice of law for a period of one (1) year. The salient portion of the Report reads:

Respondents failure to file complainants Pre-trial Brief, his failure to appear during the Pre-trial Conference because he has to attend to another case, his failure to file complainants Appeal Brief and his failure to inform complainants of the dismissal of the case at the Court of Appeals are in gross violation of his duties as a lawyer and show inexcusable negligence on his part.

His contention that he told complainants to present the Amicable Settlement agreed upon by the parties for the courts appreciation does not excuse him of his obligation to his clients, much more his allegation that he advised complainants of the futility of the case. It should be noted that the Amicable Settlement was forged by the parties after the case was already filed in court, therefore the same has no legal effect.

The lawyer owes a duty to his client to be competent to perform the legal services which the lawyer undertakes on his behalf. The lawyer should serve his client in a conscientious, diligent and efficient manner and he should provide a quality of service at least equal to that which lawyers generally would expect of a competent lawyer in a like situation (citation omitted).

WHEREFORE, premises considered, we hereby recommend that respondent ATTY. AGUSTIN F. PANEDA be SUSPENDED for a period of ONE YEAR from receipt hereof from the practice of his profession as a lawyer and as a member of the Bar.[12]

On November 18, 2006, the IBP Board of Governors passed Resolution No. XVII-2006495 adopting the aforequoted Investigating Commissioners Report and Recommendation, thus:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex A; and finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering Respondents inexcusable negligence, Atty. Agustin F. Paneda is hereby SUSPENDED from the practice of law for one (1) year.[13]

The only issue to be resolved in this case is whether or not respondent committed gross negligence or misconduct in handling petitioners case both on trial in the RTC and on appeal in the CA which led to its dismissal without affording petitioners the opportunity to present their evidence.

After a careful consideration of the records of the instant case, this Court agrees with the IBP in its findings and conclusion that respondents documented acts fall extremely short of the standard of professional duty that all lawyers are required to faithfully adhere to.

The pertinent Canons of the Code of Professional Responsibility provide:

CANON 17 A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM.

CANON 18 A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE.

xxxxx

Rule 18.02 A lawyer shall not handle any legal matter without adequate preparation.

Rule 18.03 A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable.

There is no doubt that respondent was woefully remiss in his duty to display utmost diligence and competence in protecting the interests of his clients. The records of this case clearly detailed dire instances of professional neglect which undoubtedly showed respondents failure to live up to his duties and responsibilities as a member of the legal profession. Petitioners lost Civil Case No. A-2043 in the RTC mainly because they were barred from presenting their evidence in court. This was a result of their being declared in default in the said case as a consequence of respondents failure to appear at the pre-trial conference. Respondent defended his non-appearance by stating that he had informed petitioners beforehand of a conflict of schedule and that he had instructed them on what to do in his absence, but petitioners vehemently denied this claim.

Even if we are to give credence to respondents justification, this does not excuse him from the fact that he was unable to file a Pre-trial Brief at least three (3) days prior to the scheduled pre-trial conference, as required by the Rules. Respondent alleges that he already prepared the Pre-trial Brief but did not push through with filing it because he was allegedly furnished by petitioner Modesta Herrera Talento with an Amicable Settlement that was forged between the parties before the Barangay Lupon of San Pedro, Agoo, La Union. He claims that he instructed his clients to present said document during the pre-trial conference as he had another hearing to attend.[14] However, respondents excuse is untenable as any lawyer worth his salt would readily know that once a case has been filed in court, any amicable settlement between the parties must be approved by the court in order for it to be legally binding in accordance with Section 416[15] of the Local Government Code of 1991 in relation to the last paragraph of Section 408[16] of the same Code. Thus, he cannot assume that the case will be deemed closed by virtue of the supposed amicable settlement so as to excuse him from filing the Pre-trial Brief and from appearing at the pre-trial set by the court.

With regard to his subsequent error of failing to file the required Appeal Brief which led to the dismissal of his clients appeal before the CA, respondent did not give any plausible explanation other than merely placing the blame on the incompetence of his secretary in not promptly informing him about her receipt of the Notice of Submission of Appellants

Brief.[17] This mistake by respondent is exacerbated by the fact that he did not care to inform his clients of the dismissal of their appeal in 2002 and it was only in 2005 that his clients learned about this unfortunate turn of events.

It is beyond dispute that respondent is duty-bound by his oath as a lawyer to diligently prosecute the case of his clients to the best of his ability within the bounds of law. Regrettably, the facts of this case illustrate respondents dismal performance of that responsibility, which in its totality could amount to a reprehensible abandonment of his clients cause.

A lawyer, when he undertakes his clients cause, makes a covenant that he will exert all efforts for its prosecution until its final conclusion. He should undertake the task with dedication and care, and he should do no less, otherwise, he is not true to his lawyers oath.[18]

As held in the case of Vda. De Enriquez v. San Jose:[19]

The Code of Professional Responsibility in Rule 18.03 enjoins a lawyer not to neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable. A lawyer engaged to represent a client in a case bears the responsibility of protecting the latters interest with utmost diligence. It is the duty of a lawyer to serve his client with competence and diligence and he should exert his best efforts to protect, within the bounds of the law, the interest of his client. It is not enough that a practitioner is qualified to handle a legal matter; he is also required to prepare adequately and give the appropriate attention to his legal work.

In Balatbat v. Arias,[20] the Court also held that:

It must be stressed that public interest requires that an attorney exert his best efforts in the prosecution or defense of a clients cause. A lawyer who performs that duty with diligence and candor not only protects the interests of his client, he also serves the ends of justice, does honor to the bar and helps maintain the respect of the community to the legal profession. Lawyers are indispensable part of the whole system of administering justice in this jurisdiction. At a time when strong and disturbing criticisms are being hurled at the legal profession, strict compliance with ones oath of office and the canons of professional ethics is an imperative.

Accordingly, for seriously prejudicing his clients interests due to inexcusable neglect of his professional duties as a lawyer, the IBP Investigating Commissioner recommended the suspension of respondent for one (1) year from the practice of law. The IBP Board of Governors acceded to this recommendation.

WHEREFORE, we find respondent Atty. Agustin F. Paneda GUILTY of violating Canons 17 and 18 as well as Rules 18.02 and 18.03 of the Code of Professional

Responsibility. Accordingly, we SUSPEND respondent from the practice of law for ONE (1) YEAR effective upon finality of this Decision.

Let copies of this Decision be furnished the Office of the Bar Confidant, to be appended to respondents personal record as attorney. Likewise, copies shall be furnished to the Integrated Bar of the Philippines and all courts in the country for their information and guidance.

SO ORDERED.

EN BANC

[A.C. No. 5151. October 19, 2004]

PEDRO G. TOLENTINO, ROMEO M. LAYGO, SOLOMON M. LUMALANG, SR., MELITON D. EVANGELISTA, SR., and NELSON B. MELGAR,complainants, vs. ATTY. NORBERTO M. MENDOZA, respondent. RESOLUTION AUSTRIA-MARTINEZ, J.: Before us is a complaint filed by Pedro G. Tolentino, Romeo M. Laygo, Solomon M. Lumalang, Sr., Meliton D. Evangelista, Sr., and Nelson B. Melgar against Atty. Norberto M. Mendoza for Grossly Immoral Conduct and Gross Misconduct. Complainants allege in their Affidavit-Complaint that respondent, a former Municipal Trial Court Judge, abandoned his legal wife, Felicitas V. Valderia in favor of his paramour, Marilyn dela Fuente, who is, in turn, married to one Ramon G. Marcos; respondent and Marilyn dela Fuente have been cohabiting openly and publicly as husband and wife in Brgy. Estrella, Naujan, Oriental Mindoro; respondent had fathered two children by his paramour Marilyn dela Fuente; respondent and Marilyn dela Fuente declared in the birth certificates of their two daughters that they were married on May 12, 1986, making it appear that their two children are legitimate, while in respondents Certificate of Candidacy filed with the COMELEC during the 1995 elections, respondent declared that his wife is Felicitas V. Valderia; in respondents certificate of candidacy for the 1998 elections, he declared his civil status as separated; such declarations in the birth certificates of his children and in his certificate of candidacy are acts constituting falsification of public documents; and respondents acts betray his lack of good moral character and constitute grounds for his removal as a member of the bar. Respondent filed his Comment wherein he states that complainants, who are his political opponents in Naujan, Oriental Mindoro, are merely filing this case to exact revenge on him for his filing of criminal charges against them; complainants illegally procured copies of the birth certificates of Mara Khrisna Charmina dela Fuente Mendoza and Myrra Khrisna Normina dela Fuente Mendoza, in violation of Rule 24, Administrative Order No. 1, series of 1993, thus, such documents are inadmissible in evidence; respondent did not participate in the preparation and submission with the local civil registry of subject birth certificates; respondent never declared that he had two wives, as he has always declared that he is separated in fact from his wife, Felicitas V. Valderia; and complainants have used this issue against him during elections and yet, the people of Naujan, Oriental Mindoro still elected him as Mayor, hence, respondent has not offended the publics sense of morality. The administrative case was referred to the Integrated Bar of the Philippines (hereinafter IBP) for investigation, report and recommendation. Thereafter, the Commission on Bar Discipline of the IBP conducted hearings. Witnesses for complainants, Nelson B. Melgar and Romeo M. Laygo, submitted their affidavits as their direct testimony and were subjected to cross-examination by respondents counsel. Witness Nelson B. Melgar declares in his affidavit as follows: He knows respondent for they both reside in Naujan, Oriental Mindoro. Respondent is known as a practicing lawyer and a former Municipal Trial Court Judge. Respondent has been cohabiting openly and publicly with Marilyn dela Fuente, representing themselves to be husband and wife, and from their cohabitation, they produced two children, namely, Mara Khrisna Charmina dela Fuente Mendoza and Myrra Khrisna Normina dela Fuente Mendoza. Sometime in 1995, he (witness Melgar)

received a letter from a concerned citizen, informing him that respondent was married to Felicitas Valderia of San Rafael, Bulacan, on January 16, 1980, but respondent abandoned his wife to cohabit with Marilyn dela Fuente. Attached to the letter was a photocopy of a Certification issued by the Civil Register attesting to the marriage between respondent and Felicitas Valderia. He also received information from concerned citizens that Marilyn dela Fuente is also legally married to one Ramon G. Marcos, as evidenced by a Certification from the Office of the Civil Register. Respondent stated in his Certificate of Candidacy filed with the COMELEC in 1995 that he is still legally married to Felicitas Valderia. In respondents Certificate of Candidacy filed with the COMELEC in 1998, he declared his civil status as separated. Respondent has represented to all that he is married to Marilyn dela Fuente. In the Naujanews, a local newspaper where respondent holds the position of Chairman of the Board of the Editorial Staff, respondent was reported by said newspaper as husband to Marilyn dela Fuente and the father of Mara Khrisna Charmina and Myrra Khrisna Normina. On cross-examination, witness Melgar testified as follows: He was the former mayor of Naujan and he and respondent belong to warring political parties. It was not respondent who told him about the alleged immoral conduct subject of the present case. Although he received the letter of a concerned citizen regarding the immoral conduct of respondent as far back as 1995, he did not immediately file a case for disbarment against respondent. It was only after respondent filed a criminal case for falsification against him that he decided to file an administrative case against respondent.[1] On re-direct examination, witness Melgar testified that there were people who were against the open relationship between respondent and Marilyn dela Fuente as respondent had been publicly introducing the latter as his wife despite the fact that they are both still legally married to other persons, and so someone unknown to him just handed to their maid copies of the birth certificates of Mara Khrisna Charmina and Myrra Khrisna Normina.[2] The affidavit of Mr. Romeo M. Laygo, which was adopted as his direct testimony, is practically identical to that of witness Melgar. On cross-examination, witness Laygo testified that he was not the one who procured the certified true copies of the birth certificates of Mara Khrisna Charmina dela Fuente Mendoza and Myrra Khrisna Normina dela Fuente Mendoza, as somebody just gave said documents to Nelson Melgar. He was a municipal councilor in 1995 when the letter of a concerned citizen regarding respondents immorality was sent to Melgar, but he did not take any action against respondent at that time.[3] Complainants then formally offered documentary evidence consisting of photocopies which were admitted by respondents counsel to be faithful reproductions of the originals or certified true copies thereof, to wit: a letter of one Luis Bermudez informing Nelson Melgar of respondents immoral acts,[4] the Certification of the Local Civil Registrar of San Rafael, Bulacan, attesting to the celebration of the marriage between respondent and one Felicitas Valderia,[5] the Birth Certificate of Mara Khrisna Charmina dela Fuente Mendoza,[6] the Birth Certificate of Myrra Khrisna Normina dela Fuente Mendoza,[7] the Certificate of Candidacy of respondent dated March 9, 1995,[8] the Certificate of Candidacy of respondent dated March 25, 1998,[9] Certification issued by the Civil Registrar of Naujan, Oriental Mindoro dated October 27, 1998, attesting to the marriage celebrated between Marilyn dela Fuente and Ramon Marcos,[10] and the editorial page of theNaujanews (February-March 1999 issue),[11] wherein it was stated that respondent has two daughters with his wife, Marilyn dela Fuente. Respondent, on the other hand, opted not to present any evidence and merely submitted a memorandum expounding on his arguments that the testimonies of complainants witnesses are mere hearsay, thus, said testimonies and their documentary evidence have no probative weight. On February 27, 2004, the Board of Governors of the IBP passed Resolution No. XVI-2004123, reading as follows: RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex A; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering

respondents violation of Rule 1.01 of the Code of Professional Responsibility, Atty. Norberto M. Mendoza is hereby SUSPENDED INDEFINITELY from the practice of law until he submits satisfactory proof that he is no longer cohabiting with a woman who is not his wife and has abandoned such immoral course of conduct. Portions of the report and recommendation of the IBP Commission on Bar Discipline, upon which the above-quoted Resolution was based, read as follows: FINDINGS: The evidence of complainants to support their charge of immorality consists in a) the testimonies of Nelson Melgar and Romeo Laygo given by way of affidavits executed under oath and affirmed before the Commission and b) their documentary evidence consisting of their Exhibits A to H. Respondent filed his comment through counsel and did not formally present or offer any evidence. Respondent opted not to present his evidence anymore because according to him there is none to rebut vis--vis the evidence presented by the private complainants. Respondent instead submitted a memorandum through counsel to argue his position. As can be seen from the comment and memorandum submitted, respondents counsel argues that the complaint is politically motivated since complainants are political rivals of respondent and that the birth certificates Exhibits D and D-1 which were offered to show that respondent sired the children namely Mara Khrisna Charmina dela Fuente Mendoza and Myrra Khrisna Normina dela Fuente Mendoza out of his cohabitation with Marilyn dela Fuente are inadmissible because they were allegedly secured in violation of Administrative Order No. 1, Series of 1993. The rest of the exhibits are either hearsay or self-serving according to respondent. The witnesses who are also two of the complainants herein, on the other hand, categorically state in their affidavits [Exhibits A and B] particularly in paragraph 2 that Respondent has been cohabiting openly and publicly with Marilyn de la Fuente, representing themselves to be husband and wife. In paragraph 10 of said affidavits the witnesses also categorically state that respondent has even represented to all and sundry that Marilyn de la Fuente is his wife. These categorical statements made under oath by complainants are not hearsay and remain un-rebutted. Respondent chose not to rebut them. Exhibit E, the Certificate of Candidacy executed by respondent shows that respondent is married to one, Felicitas V. Valderia. As shown by Exhibit H, a marriage certificate, Marilyn de la Fuente is married to one, Ramon G. Marcos. Duly certified true copies of said exhibits have been presented by complainants. With respect to Exhibits D and D-1, we believe that they are competent and relevant evidence and admissible in this proceedings. The exclusionary rule which bars admission of illegally obtained evidence applies more appropriately to evidence obtained as a result of illegal searches and seizures. The instant case cannot be analogous to an illegal search or seizure. A person who violates Rule 24 of Administrative Order No. 1 Series of 1993 as cited by respondent risks the penalty of imprisonment or payment of a fine but it does not make the document so issued inadmissible as evidence specially in proceedings like the present case. Exhibits D and D-1 which are duly certified birth certificates are therefore competent evidence to show paternity of said children by respondent in the absence of any evidence to the contrary. By and large the evidence of complainants consisting of the testimonies of witnesses Nelson Melgar and Romeo Laygo, and corroborated by the documentary exhibits will show that indeed respondent has been cohabiting publicly with a certain Marilyn de la Fuente who is not his wife and that out of said cohabitation respondent sired two children. These facts we repeat have not been denied by respondent under oath since he chose to just argue on the basis of the improper motivations and the inadmissibility, hearsay and self-serving nature of the documents presented. Complainants have presented evidence sufficient enough to convince us that indeed respondent

has been cohabiting publicly with a person who is not his wife. The evidence taken together will support the fact that respondent is not of good moral character. That respondent chose not to deny under oath the grave and serious allegations made against him is to our mind his undoing and his silence has not helped his position before the Commission. As between the documents and positive statements of complainants, made under oath and the arguments and comments of respondent submitted through his lawyers, which were not verified under oath by respondent himself, we are inclined and so give weight to the evidence of complainants. The direct and forthright testimonies and statements of Nelson Melgar and Romeo Laygo that respondent was openly cohabiting with Marilyn de la Fuente is not hearsay. The witnesses may have admitted that respondent Mendoza did not tell them that a certain Marilyn de la Fuente was his paramour (for why would respondent admit that to complainants) but the witnesses did state clearly in their affidavits under oath that respondent was cohabiting with Marilyn de la Fuente who is not respondents wife. Again their categorical statements taken together with the other documents, are enough to convince us and conclude that respondent is not of good moral character. Members of the Bar have been repeatedly reminded that possession of good moral character is a continuing condition for membership in the Bar in good standing. The continued possession of good moral character is a requisite condition for remaining in the practice of law [Mortel vs. Aspiras 100 Phil. 586 (1956); Cordova vs. Cordova 179 SCRA 680 (1989); People vs. Tuanda 181 SCRA 682 (1990)]. The moral delinquency that affects the fitness of a member of the bar to continue as such includes conduct that outrages the generally accepted moral standards of the community, conduct for instance, which makes mockery of the inviolable social institution of marriage [Mijares vs. Villaluz 274 SCRA 1 (1997)]. In the instant case respondent has disregarded and made a mockery of the fundamental institution of marriage. Respondent in fact even so stated in Exhibit F that he is separated from his wife. This fact and statement without any further explanation from respondent only contributes to the blot in his moral character which good moral character we repeat is a continuing condition for a member to remain in good standing. Under Rule 1.01 of the Code of Professional Responsibility, a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. Respondent has violated this rule against engaging in immoral conduct. We agree, as cited by the respondent, with the pronouncement made in Santos vs. Dischoso, 84 SCRA 622 (1978) that courts should not be used by private persons particularly disgruntled opponents to vent their rancor on members of the Bar through unjust and unfounded accusations. However, in the instant case the charges can hardly be considered as unfounded or unjust based on the evidence presented. The evidence presented shows that respondent no longer possess (sic) that good moral character necessary as a condition for him to remain a member of the Bar in good standing. He is therefore not entitled to continue to engage in the practice of law. We find such report and recommendation of the IBP to be fully supported by the pleadings and evidence on record, and, hence, approve and adopt the same. The evidence presented by complainants reach that quantum of evidence required in administrative proceedings which is only substantial evidence, or that amount of relevant evidence that a reasonable mind might accept as adequate to support a conviction.[12] Witness Melgars testimony that respondent had been publicly introducing Marilyn dela Fuente as his wife is corroborated by the contents of an article in the Naujanews, introducing respondent as one of Naujans public servants, and stating therein that respondent has been blessed with two beautiful children with his wife, Marilyn dela Fuente.[13] It should be noted that said publication is under the control of respondent, he being the Chairman of the Board thereof. Thus, it could be reasonably concluded that if he contested the truth of the contents of subject article in the Naujanews, or if he did not wish to publicly present Marilyn dela Fuente as his wife, he could have easily ordered that the damning portions of said article to be edited out.

With regard to respondents argument that the credibility of witnesses for the complainants is tainted by the fact that they are motivated by revenge for respondents filing of criminal cases against them, we opine that even if witnesses Melgar and Laygo are so motivated, the credibility of their testimonies cannot be discounted as they are fully supported and corroborated by documentary evidence which speak for themselves. The birth certificates of Mara Khrisna Charmina dela Fuente Mendoza and Myrra Khrisna Normina dela Fuente Mendoza born on June 16, 1988 and May 22, 1990, respectively, to Norberto M. Mendoza and Marilyn Dela Fuente; and the Certification from the Office of the Local Civil Registrar of Bulacan attesting to the existence in its records of an entry of a marriage between respondent and one Felicitas Valderia celebrated on January 16, 1980, are public documents and are prima facie evidence of the facts contained therein, as provided for under Article 410[14] of the Civil Code of the Philippines. Respondent mistakenly argues that the birth certificates of Mara Khrisna Charmina dela Fuente Mendoza and Myrra Khrisna Normina dela Fuente Mendoza born on June 16, 1988 and May 22, 1990, respectively, to Norberto M. Mendoza and Marilyn Dela Fuente, are inadmissible in evidence for having been obtained in violation of Rule 24, Administrative Order No. 1, series of 1993, which provides as follows: Rule 24. Non-Disclosure of Birth Records. (1) The records of a persons birth shall be kept strictly confidential and no information relating thereto shall be issued except on the request of any of the following: a. the concerned person himself, or any person authorized by him; b. the court or proper public official whenever absolutely necessary in administrative, judicial or other official proceedings to determine the identity of the childs parents or other circumstances surrounding his birth; and c. in case of the persons death, the nearest of kin. (2) Any person violating the prohibition shall suffer the penalty of imprisonment of at least two months or a fine in an amount not exceeding five hundred pesos, or both in the discretion of the court. (Article 7, P.D. 603) Section 3, Rule 128 of the Revised Rules on Evidence provides that evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. There could be no dispute that the subject birth certificates are relevant to the issue. The only question, therefore, is whether the law or the rules provide for the inadmissibility of said birth certificates allegedly for having been obtained in violation of Rule 24, Administrative Order No. 1, series of 1993. Note that Rule 24, Administrative Order No. 1, series of 1993 only provides for sanctions against persons violating the rule on confidentiality of birth records, but nowhere does it state that procurement of birth records in violation of said rule would render said records inadmissible in evidence. On the other hand, the Revised Rules of Evidence only provides for the exclusion of evidence if it is obtained as a result of illegal searches and seizures. It should be emphasized, however, that said rule against unreasonable searches and seizures is meant only to protect a person from interference by the government or the state.[15] In People vs. Hipol,[16] we explained that: The Constitutional proscription enshrined in the Bill of Rights does not concern itself with the relation between a private individual and another individual. It governs the relationship between the individual and the State and its agents. The Bill of Rights only tempers governmental power and protects the individual against any aggression and unwarranted interference by any department of government and its agencies. Accordingly, it cannot be extended to the acts complained of in this case. The alleged warrantless search made by Roque, a co-employee of appellant at the treasurers office, can hardly fall within the ambit of the constitutional proscription on unwarranted searches and seizures.

Consequently, in this case where complainants, as private individuals, obtained the subject birth records as evidence against respondent, the protection against unreasonable searches and seizures does not apply. Since both Rule 24, Administrative Order No. 1, series of 1993 and the Revised Rules on Evidence do not provide for the exclusion from evidence of the birth certificates in question, said public documents are, therefore, admissible and should be properly taken into consideration in the resolution of this administrative case against respondent. Verily, the facts stated in the birth certificates of Mara Khrisna Charmina dela Fuente Mendoza and Myrra Khrisna Normina dela Fuente Mendoza and respondents Certificate of Candidacy dated March 9, 1995 wherein respondent himself declared he was married to Felicitas Valderia, were never denied nor rebutted by respondent. Hence, said public documents sufficiently prove that he fathered two children by Marilyn dela Fuente despite the fact that he was still legally married to Felicitas Valderia at that time. In Bar Matter No. 1154,[17] good moral character was defined thus: . . . good moral character is what a person really is, as distinguished from good reputation or from the opinion generally entertained of him, the estimate in which he is held by the public in the place where he is known. Moral character is not a subjective term but one which corresponds to objective reality. The standard of personal and professional integrity is not satisfied by such conduct as it merely enables a person to escape the penalty of criminal law. In Zaguirre vs. Castillo,[18] we reiterated the definition of immoral conduct, to wit: . . . that conduct which is so willful, flagrant, or shameless as to show indifference to the opinion of good and respectable members of the community. Furthermore, such conduct must not only be immoral, but grossly immoral. That is, it must be so corrupt as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree or committed under such scandalous or revolting circumstances as to shock the common sense of decency. In the above-quoted case, we pointed out that a member of the Bar and officer of the court is not only required to refrain from adulterous relationships or the keeping of mistresses but must also behave himself as to avoid scandalizing the public by creating the belief that he is flouting those moral standards and, thus, ruled that siring a child with a woman other than his wife is a conduct way below the standards of morality required of every lawyer.[19] We must rule in the same wise in this case before us. The fact that respondent continues to publicly and openly cohabit with a woman who is not his legal wife, thus, siring children by her, shows his lack of good moral character. Respondent should keep in mind that the requirement of good moral character is not only a condition precedent to admission to the Philippine Bar but is also a continuing requirement to maintain ones good standing in the legal profession.[20] In Aldovino vs. Pujalte, Jr.,[21] we emphasized that: This Court has been exacting in its demand for integrity and good moral character of members of the Bar. They are expected at all times to uphold the integrity and dignity of the legal profession and refrain from any act or omission which might lessen the trust and confidence reposed by the public in the fidelity, honesty, and integrity of the legal profession. Membership in the legal profession is a privilege. And whenever it is made to appear that an attorney is no longer worthy of the trust and confidence of the public, it becomes not only the right but also the duty of this Court, which made him one of its officers and gave him the privilege of ministering within its Bar, to withdraw the privilege. WHEREFORE, respondent Atty. Norberto M. Mendoza is hereby found GUILTY of immorality, in violation of Rule 1.01 of the Code of Professional Responsibility. He is SUSPENDED INDEFINITELY from the practice of law until he submits satisfactory proof that he has abandoned his immoral course of conduct.

Let a copy of this resolution be served personally on respondent at his last known address and entered in his record as attorney. Let the IBP, the Bar Confidant, and the Court Administrator be furnished also a copy of this resolution for their information and guidance as well as for circularization to all courts in the country. SO ORDERED.

EN BANC

RE: 2003 BAR EXAMINATIONS x ---------------------------------------- x

B.M. No. 1222

ATTY. DANILO DE GUZMAN, Petitioner, Present:

Puno, C.J., Quisumbing,* Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio Morales, Tinga, Chico-Nazario, Velasco, Jr., Nachura, Leonardo-De Castro, Brion, Peralta, and Bersamin, JJ.

Promulgated:

April 24, 2009 x ---------------------------------------------------------------------------------------- x RESOLUTION YNARES-SANTIAGO, J.:

This treats the Petition for Judicial Clemency and Compassion dated November 10, 2008 filed by petitioner Danilo de Guzman. He prays that this Honorable Court in the exercise of equity and compassion, grant petitioners plea for judicial clemency, and thereupon, order his reinstatement as a member in good standing of the Philippine Bar.[1]

To recall, on February 4, 2004, the Court promulgated a Resolution, in B.M. No. 1222, the dispositive portion of which reads in part:

WHEREFORE, the Court, acting on the recommendations of the Investigating Committee, hereby resolves to

(1) DISBAR Atty. DANILO DE GUZMAN from the practice of law effective upon his receipt of this RESOLUTION;

xxxx

The subject of the Resolution is the leakage of questions in Mercantile Law during the 2003 Bar Examinations. Petitioner at that time was employed as an assistant lawyer in the law firm of Balgos & Perez, one of whose partners, Marcial Balgos, was the examiner for Mercantile Law during the said bar examinations. The Court had adopted the findings of the Investigating Committee, which identified petitioner as the person who had downloaded the test questions from the computer of Balgos and faxed them to other persons.

The Office of the Bar Confidant (OBC) has favorably recommended the reinstatement of petitioner in the Philippine Bar. In a Report dated January 6, 2009, the OBC rendered its assessment of the petition, the relevant portions of which we quote hereunder:

Petitioner narrated that he had labored to become a lawyer to fulfill his fathers childhood dream to become one. This task was not particularly easy for him and his family but he willed to endure the same in order to pay tribute to his parents.

Petitioner added that even at a very young age, he already imposed upon himself the duty of rendering service to his fellowmen. At 19 years, he started his exposure to public service when he was elected Chairman of the Sangguniang Kabataan (SK) of Barangay Tuktukan, Taguig City. During this time, he initiated several projects benefiting the youth in their barangay.

Thereafter, petitioner focused on his studies, taking up Bachelor of Arts in Political Science and eventually pursuing Bachelor of Laws. In his second year in law school, he was elected as the President of the Student Council of the Institute of Law of the Far Eastern University (FEU). Here, he spearheaded various activities including the conduct of seminars for law students as well as the holding of bar operations for bar examinees.

Despite his many extra-curricular activities as a youth and student leader, petitioner still managed to excel in his studies. Thus, he was conferred an Academic Excellence Award upon his graduation in Bachelor of Laws.

Upon admission to the bar in April 1999, petitioner immediately entered government service as a Legal Officer assigned at the Sangguniang Bayan of Taguig. Simultaneously, he also rendered free legal services to less fortunate residents of Taguig City who were then in need of legal assistance.

In March 2000, petitioner was hired as one of the Associate Lawyers at the Balgos and Perez Law Offices. It was during his stay with this firm when his craft as a lawyer was polished and developed. Despite having entered private practice, he continued to render free legal services to his fellow Taguigeos.

Then in February 2004, by a sudden twist of fate, petitioners flourishing career was cut short as he was stripped of his license to practice law for his alleged involvement in the leakage in the 2003 Bar Examinations.

Devastated, petitioner then practically locked himself inside his house to avoid the rather unavoidable consequences of his disbarment.

On March 2004, however, petitioner was given a new lease in life when he was taken as a consultant by the City Government of Taguig. Later, he was designated as a member of the Secretariat of the Peoples Law Enforcement Board (PLEB). For the next five (5) years, petitioner concentrated mainly on rendering public service.

Petitioner humbly acknowledged the damaging impact of his act which unfortunately, compromised the integrity of the bar examinations. As could be borne from the records of the investigation, he cooperated fully in the investigation conducted and took personal responsibility for his actions. Also, he has offered his sincerest apologies to Atty. Balgos, to the Court as well as to all the 2003 bar examinees for the unforeseen and unintended effects of his actions.

Petitioner averred that he has since learned from his mistakes and has taken the said humbling experience to make him a better person.

Meanwhile, as part of his Petition, petitioner submitted the following testimonials and endorsements of various individuals and entities all attesting to his good moral character:

1)

Resolution No. 101, Series of 2007, Resolution Expressing Full Support to Danilo G. De Guzman in his Application for Judicial Clemency, Endorsing his Competence and Fitness to be Reinstated as a Member of the Philippine Bar and for Other Purposes dated 4 June 2007 of the Sangguniang Panlungsod, City of Taguig;

2)

Isang Bukas na Liham na Naglalayong Iparating sa Kataas Taasang Hukuman ang Buong Suporta ng Pamunuan at mga Kasapi ng Southeast Peoples Village Homeowners Association, Inc. (SEPHVOA) kay Danilo G. De Guzman sa Kanyang Petisyong Magawaran ng Kapatawaran at ang Boluntaryong Pagsusulong sa Kanyang Kakayahan Upang Maibalik sa Kanya ang mga Pribilehiyo ng Isang Abogado dated 1 June 2007 of the Southeast Peoples Village Homeowners Association, Inc. (SEPHVOA), Ibayo-Tipas, City of Taguig;

3)

Isang Bukas na Liham na Naglalayong Iparating sa Kataas Taasang Hukuman ang Buong Suporta ng Pamunuan at mga Kasapi ng Samahang Residente ng Mauling Creek, Inc. (SAREMAC) kay G. Danilo G. De Guzman sa Kanyang Petisyong Magawaran ng Kapatawaran at ang Boluntaryong Pagsusulong sa Kanyang Kakayahan Upang Maibalik sa Kanya ang mga Pribilehiyo ng Isang Abogado dated 1 June 2007 of the Samahang Residente ng Mauling Creek, Inc. (SAREMAC), Lower Bicutan, City of Taguig;

4)

Isang Bukas na Liham na Naglalayong Iparating sa Kataas Taasang Hukuman ang Buong Suporta ng Pamunuan at mga Kasapi ng Samahan ng mga Maralita (PULONG KENDI) Neighborhood Association, Inc. (SAMANA) kay G. Danilo G. De Guzman sa Kanyang Petisyong Magawaran ng Kapatawaran at ang Boluntaryong Pag-susulong sa Kanyang Kakayahan Upang Maibalik sa Kanya ang mga Pribilehiyo ng Isang Abogado dated 1 June 2007 of the Samahan ng mga Maralita (PULONG KENDI) Neighborhood Association, Inc. (SAMANA), Sta. Ana, City of Taguig;

5)

An Open Letter Attesting Personally to the Competence and Fitness of Danilo G. De Guzman as to Warrant the Grant of Judicial Clemency and his Reinstatement as Member of the Philippine Bar dated 8 June 2007 of Miguelito Nazareno V. Llantino, Laogan, Trespeses and Llantino Law Offices;

6)

Testimonial to the Moral and Spiritual Competence of Danilo G. De Guzman to be Truly Deserving of Judicial Clemency and Compassion dated 5 July 2007 of Rev. Fr. Paul G. Balagtas, Parish Priest, Archdiocesan Shrine of St. Anne;

7)

Testimonial Letter dated 18 February 2008 of Atty. Loreto C. Ata, President, Far Eastern University Law Alumni Association (FEULAA), Far Eastern University (FEU);

8)

Isang Bukas na Liham na Naglalayong Iparating sa Kataas Taasang Hukuman ang Buong Suporta ng Pamunuan at mga Kasapi ng Samahang Bisig Kamay sa Kaunlaran, Inc. (SABISKA) kay G. Danilo G. De Guzman sa Kanyang Petisyong Magawaran ng Kapatawaran at ang Boluntaryong Pag-susulong sa Kanyang Kakayahan Upang Maibalik sa Kanya ang mga Pribilehiyo ng Isang Abogado dated 8 July 2008 of the Samahang Bisig Kamay sa Kaunlaran, Inc. (SABISKA);

9)

Board Resolution No. 02, Series of 2008, A Resolution Recognizing the Contributions of Danilo G. De Guzman to the Peoples Law Enforcement Board (PLEB) Taguig City, Attesting to his Utmost Dedication and Commitment to the Call of Civic and Social Duty and for Other Purposes dated 11 July 2008 of the Peoples Law Enforcement Board (PLEB);

10)

A Personal Appeal for the Grant of Judicial Forgiveness and Compassion in Favor of Danilo G. De Guzman dated 14 July 2008 of Atty. Edwin R. Sandoval, Professor, College of Law,San Sebastian College Recoletos;

11)

An Open Letter Personally Attesting to the Moral competence and Fitness of Danilo G. De Guzman dated 5 September 2008 of Mr. Nixon F. Faderog, Deputy Grand [Kn]ight, Knights of Columbus and President, General Parent-Teacher Association, Taguig National High School, Lower Bicutan, Taguig City;

12)

Testimonial Letter dated 5 September 2008 of Atty. Primitivo C. Cruz, President, Taguig Lawyers League, Inc., Tuktukan, Taguig City;

13)

Testimonial Letter dated 21 October 2008 of Judge Hilario L. Laqui, Presiding Judge, Regional Trail Court (RTC), Branch 218, Quezon City; and

14)

Testimonial Letter dated 28 October 2008 of Justice Oscar M. Herrera, former Justice, Court of Appeals and former Dean, Institute of Law, Far Eastern University (FEU).

Citing the case of In Re: Carlos S. Basa, petitioner pleaded that he be afforded the same kindness and compassion in order that, like Atty. Basa, his promising future may not be perpetually foreclosed. In the said case, the Court had the occasion to say:

Carlos S. Basa is a young man about 29 years of age, admitted to the bars of California and the Philippine Islands. Recently, he was charged in the Court of First Instance of the City of Manila with the crime of abduction with consent, was found guilty in a decision rendered by the Honorable M.V. De Rosario, Judge of First Instance, and was sentenced to be imprisoned for a period of two years, eleven months and eleven days of prision correccional. On appeal, this decision was affirmed in a judgment handed down by the second division of the Supreme Court.

xxxx

When come next, as we must, to determine the exact action which should be taken by the court, we do so regretfully and reluctantly. On the one hand, the violation of the criminal law by the respondent attorney cannot be lightly passed over. On the other hand, we are willing to strain the limits of our compassion to the uttermost in order that so promising a career may not be utterly ruined.

Petitioner promised to commit himself to be more circumspect in his actions and solemnly pledged to exert all efforts to atone for his misdeeds.

There may be a reasonable ground to consider the herein Petition.

In the case of Re: Petition of Al Argosino to Take the Lawyers Oath (Bar Matter 712), which may be applied in the instant case, the Court said:

After a very careful evaluation of this case, we resolve to allow petitioner Al Caparros Argosino to take the lawyer's oath, sign the Roll of Attorneys and practice the legal profession with the following admonition:

In allowing Mr. Argosino to take the lawyers oath, the Court recognizes that Mr. Argosino is not inherently of bad moral fiber. On the contrary, the various certifications show that he is a devout Catholic with a genuine concern for civic duties and public service.

The Court is persuaded that Mr. Argosino has exerted all efforts, to atone for the death of Raul Camaligan. We are prepared to give him the benefit of the doubt, taking judicial notice of the general tendency of youth to be rash, temerarious and uncalculating.

xxxx

Meanwhile, in the case of Rodolfo M. Bernardo vs. Atty. Ismael F. Mejia (Administrative Case No. 2984), the Court [in] deciding whether or not to reinstate Atty. Mejia to the practice of law stated:

The Court will take into consideration the applicants character and standing prior to the disbarment, the nature and character of the charge/s for which he was disbarred, his conduct subsequent to the disbarment and the time that has elapsed in between the disbarment and the application for reinstatement.

Petitioner was barely thirty (30) years old and had only been in the practice of law for five (5) years when he was disbarred from the practice of law. It is of no doubt that petitioner had a promising future ahead of him where it not for the decision of the Court stripping off his license.

Petitioner is also of good moral repute, not only before but likewise, after his disbarment, as attested to overwhelmingly by his constituents, colleagues as well as people of known probity in the community and society.

Way before the petitioner was even admitted to the bar, he had already manifested his intense desire to render public service as evidenced by his active involvement and participation in several social and civic projects and activities. Likewise, even during and after his disbarment, which could be perceived by some as a debilitating circumstance, petitioner still managed to continue extending his assistance to others in whatever means possible. This only proves petitioners strength of character and positive moral fiber.

However, still, it is of no question that petitioners act in copying the examination questions from Atty. Balgos computer without the latters knowledge and consent, and which questions later turned out to be the bar examinations questions in Mercantile Law in the 2003 Bar Examinations, is not at all commendable. While we do believe that petitioner sincerely did not intend to cause the damage that his action ensued, still, he must be sanctioned for unduly compromising the integrity of the bar examinations as well as of this Court.

We are convinced, however, that petitioner has since reformed and has sincerely reflected on his transgressions. Thus, in view of the circumstances and likewise for humanitarian considerations, the penalty of disbarment may now be commuted to suspension. Considering the fact, however, that petitioner had already been disbarred for more than five (5) years, the same may be considered as proper service of said commuted penalty and thus, may now be allowed to resume practice of law.

WHEREFORE, PREMISES CONSIDERED, it is respectfully recommended that the instant Petition for Judicial Clemency and Compassion dated 10 November 2008 of petitioner DANILO G. DE GUZMAN be GRANTED. Petitioners disbarment is now commuted to suspension, which suspension is considered as served in view of the petitioners five (5) year disbarment. Hence, petitioner may now be allowed to resume practice of law.

The recommendation of the Office of the Bar Confidant is well-taken in part. We deem petitioner worthy of clemency to the extent of commuting his penalty to seven (7) years suspension from the practice of law, inclusive of the five (5) years he has already served his disbarment.

Penalties, such as disbarment, are imposed not to punish but to correct offenders.[2] While the Court is ever mindful of its duty to discipline its erring officers, it also knows how to show compassion when the penalty imposed has already served its purpose.[3]

In cases where we have deigned to lift or commute the supreme penalty of disbarment imposed on the lawyer, we have taken into account the remorse of the disbarred lawyer[4] and the conduct of his public life during his years outside of the bar.[5] For example, in Valencia v. Antiniw, we held:

However, the record shows that the long period of respondent's disbarment gave him the chance to purge himself of his misconduct, to show his remorse and repentance, and to demonstrate his willingness and capacity to live up once again to the exacting standards of conduct demanded of every member of the bar and officer of the court. During respondent's disbarment for more than fifteen (15) years to date for his professional infraction, he has been persistent in reiterating his apologies and pleas for reinstatement to the practice of law and unrelenting in his efforts to show that he has regained his worthiness to practice law, by his civic and humanitarian activities and unblemished record as an elected public servant, as attested to by numerous civic and professional organizations, government institutions, public officials and members of the judiciary.[6]

And in Bernardo v. Atty. Mejia,[7] we noted:

Although the Court does not lightly take the bases for Mejias disbarment, it also cannot close its eyes to the fact that Mejia is already of advanced years. While the age of the petitioner and the length of time during which he has endured the ignominy of disbarment are not the sole measure in allowing a petition for reinstatement, the Court takes cognizance of the rehabilitation of Mejia. Since his disbarment in 1992, no other transgression has been attributed to him, and he has shown remorse. Obviously, he has learned his lesson from this experience, and his punishment has lasted long enough. x x x

Petitioner has sufficiently demonstrated the remorse expected of him considering the gravity of his transgressions. Even more to his favor, petitioner has redirected focus since his disbarment towards public service, particularly with the Peoples Law Enforcement Board. The attestations submitted by his peers in the community and other esteemed members of the legal profession, such as retired Court of Appeals Associate Justice Oscar Herrera, Judge Hilario Laqui, Professor Edwin Sandoval and Atty. Lorenzo Ata, and the ecclesiastical community such as Rev. Fr. Paul Balagtas testify to his positive impact on society at large since the unfortunate events of 2003.

Petitioners subsequent track record in public service affords the Court some hope that if he were to reacquire membership in the Philippine bar, his achievements as a lawyer would redound to the general good and more than mitigate the stain on his record. Compassion to the petitioner is warranted. Nonetheless, we wish to impart to him the following stern warning:

Of all classes and professions, the lawyer is most sacredly bound to uphold the laws. He is their sworn servant; and for him, of all men in the world, to repudiate and override the laws, to trample them underfoot and to ignore the very bands of society, argues recreancy to his position and office and sets a pernicious example to the insubordinate and dangerous elements of the body politic.[8]

WHEREFORE, in view of the foregoing, the Petition for Judicial Clemency and Compassion is hereby GRANTED IN PART. The disbarment of DANILO G. DE GUZMAN from the practice of law is hereby COMMUTED to SEVEN (7) YEARS SUSPENSION FROM THE PRACTICE OF LAW, reckoned from February 4, 2004.

SO ORDERED.

SECOND DIVISION IRENE SANTOS-TAN, Represented by her Attorney-in-fact MIRIAM S. ELGINCOLIN, Complainant, ADM. CASE. No. 6383 Present: QUISUMBING, J., Chairperson, CARPIO MORALES, TINGA, VELASCO, JR., and PERALTA, JJ.* Promulgated: March 31, 2009 x -----------------------------------------------------------------------------------x DECISION TINGA, J.:

- versus -

ATTY. ROMEO R. ROBISO, Respondent.

This is an administrative complaint filed by complainant Irene Santos-Tan against respondent Atty. Romeo Robiso.[1] Complainant charged respondent with malpractice for grossly neglecting his duties and responsibilities as counsel for complainant and for issuing a bouncing check. Complainant seeks that respondent be disbarred and ordered to return the sum of P85,000.00, plus interest. Complainant asserts the following: Sometime in December 2000, complainant engaged the professional services of respondent as her counsel to represent her in Special Proceeding No. 01-101339, entitled In the Matter of the Intestate Estate of Eusebio G. Tan, a.k.a. Tan Chin Bio G., pending before the Regional Trial Court of Manila, Branch 45. She paid respondent P100,000.00 as acceptance fee. Subsequently, respondent entered his appearance as new counsel on 12 December 2002. After several months had passed, complainant asked respondent about the status of her case. She found out that her case had not progressed and that the only pleading that respondent had filed was his notice of appearance.[2] Not satisfied with the way respondent was handling her case, complainant and her sister, Miriam Elgincolin (Miriam), went to his office on 3 November 2003. She demanded that he return the professional fees earlier paid as there was allegedly no professional service rendered by him. And for the purpose of returning a portion of the professional fee, respondent issued to complainant Asia United Bank Check No. 0048229 dated 29 November 2003 in the amount of P85,000.00.[3] However, respondents check was dishonored by the drawee bank for insufficiency of funds.[4] Despite several demands, respondent failed to make good or replace the check. In reply to complainants final demand, made through her counsel, respondent wrote a letter dated 25 January 2004 asserting that the check was without consideration and it was issued to stop complainants acerbic verbal abuse.[5]

In compliance with the Courts 21 June 2004 Resolution,[6] respondent filed his Comment dated 16 August 2004[7] and a Supplement Comment dated 17 September 2004.[8] Below are his allegations: Before respondent entered his appearance as counsel, a motion for reconsideration of the order appointing Jude Chua Tan as administrator of complainants husband and a motion for early resolution of said motion for reconsideration had already been filed by complainants former counsel. Still, respondent went back and forth to the court to personally follow-up the resolution of the motion for reconsideration.[9] However, the branch clerk of court would only advise him to wait for the replacement of the presiding judge who retired.[10] Further still, he would, once or twice a month, still drop by the office of the branch clerk of court to inquire about the status of the case. But without fail, the answer he would get was no new judge yet.[11] It was only later that he learned that the regular judge did not actually retire but was suspended by the Court. Respondent recorded the dates of his court visits in his notes and these were part of the case file which was turned over to complainant when she terminated his services. Whatever delay in the resolution of the motions before the RTC was due to the suspension of the regular presiding judge of the court and the reluctance of the acting judge to resolve said motions during such period. In effect, he even contacted the opposing counsel to explore the possibility of an amicable settlement. Thus, he was never remiss in his duties as counsel for complainant.[12] Complainant was proud and nasty. His secretary would receive her calls berating him on the slow progress of the case. Complainant also badmouthed her former lawyers while expressing her disappointment over their failure to have the RTC appoint her as an administrator of her husbands estate. As to the acceptance fee, it was understood to be non-refundable. But on 3 November 2003, so respondent asserts, complainant bullied respondent with harsh words right inside his office.[13] Complainant shouted invectives at him. So, to make her leave his office, he wrote the P85,000.00 check and gave it to her.[14] In her Reply to respondents Comment and Supplemental Comment dated 6 October 2004,[15] complainant avers: if respondent had really made numerous follow-ups regarding her case, he would have known that the regular presiding judge did not retire but was merely suspended.[16] Respondent learned of such fact only when he reviewed the case record. Instead of apologizing to her for issuing the rubber check, respondent concocted an incredible tale to make it appear that she was the one bullying him inside his office and forcing him to issue her a check. It is unthinkable for an ordinary person like herself to raise her voice against a lawyer especially inside the latters office. It is unbelievable for any person to issue a check for P85,000.00 just to appease another person. Respondent could have called security to stop her if indeed she was bullying him in his office. Moreover, respondent himself deducted P15,000.00 from the acceptance fee as payment for the alleged professional service he had rendered.[17] Attached to complainants reply is the affidavit[18] of her sister Miriam who was with her when she went to respondents office and witnessed everything that had transpired therein. According to Miriam, respondent explained to complainant that he had been following-up the case and that he could not return the full amount of the acceptance fee. Complainant was told by respondent that he had no money so instead he wrote her a check before her departure to the U.S. They then left the office of respondent. Miriam stated that she saw the case folder was given by respondent and there were no notes which would allegedly indicate the dates when he made follow-ups in the intestate case.[19]

In a Resolution dated 26 January 2005,[20] the Court referred the case to the Integrated Bar of the Philippines (IBP) for evaluation, report and recommendation. The issues are: (1) whether respondent was negligent in handling complainants case; and (2) whether respondent should be disciplined for issuing a bouncing check. To thresh out the issues, the IBP conducted the mandatory conference/hearing and thereafter required both parties to submit their respective verified position papers. Both parties submitted their respective verified position papers both substantially reiterating their arguments in previous submission. Complainant notes that respondent had admitted in effect his negligent handling of her case when he returned P85,000.00 of the acceptance fee she paid him. The commission of a criminal act, such as the issuance of a bouncing check, a violation of Batas Pambansa (B.P.) 22, clearly constitute gross misconduct. Respondents claim that there was no consideration for the check is not true since it was issued to return the complainants P100,000.00 attorneys fees for services that were not rendered. There was in effect a rescission and cancellation of the retainer agreement.[21] For respondents part, he alleges that his secretary, Amarie Malana, saw the notes in which he recorded the dates when he went to court to follow up the status of complainants case. Respondents secretary also witnessed how he was berated in his office on November 2003. Since he was also in a hurry to catch up with his law class, he quickly issued the check to complainant.[22] As for complainants case, neglect should not be attributed to him then since the motions filed by her previous lawyer were already submitted for resolution and there was nothing further he could do. That at the beginning of his engagement as lawyer, he made it clear to complainant that the P100,000.00 was an acceptance fee and was non-refundable. The hearing officer, Caesar Dulay, in his Report and Recommendation dated 20 November 2007,[23] recommended that respondent be suspended for one month with strong warning that a commission of a similar offense would be dealt with more severity in the future. He also recommended that respondent be ordered to reimburse complainant the amount of P70,000.00, P30,000.00 of which corresponds to the services rendered by him on a quantum meruit. He did not find respondent to be grossly negligent in the performance of his duties as there was nothing more respondent could do in accelerating the resolution of the motions which were already submitted for resolution. The filing of additional pleadings or papers with the court would not be necessary. During the time the motion for reconsideration was pending the regular presiding judge of the court was under suspension and the acting presiding judge who issued the resolution considering the motion as submitted for resolution was not disposed to act on said motion but instead opted to wait for the regular presiding judge to act on it. However, the hearing officer recommended that respondent be made liable for issuing the bouncing check. Whatever was respondents reason for issuing the check, the fact remains that the same was dishonored by the bank for having been drawn against insufficient funds. If respondents purpose was just to appease complainant to make her leave his office and he firmly believed that he had no obligation to return the P100,000.00, then he could have issued a stop-payment order to the bank before the encashment of the check, the hearing officer added. The Board of Governors of the IBP, in a Resolution on 14 December 2007, adopted and approved the Report and Recommendation with modification that the recommended penalty of suspension from the practice of law be increased to one year.[24] Pursuant to Rule 139-B of the Rules of Court, the administrative case is now before the Court for resolution.

The Court affirms the findings of the IBP. On the issue of negligence on the part of respondent in handling complainants case, the Court agrees that based on the facts presented there was nothing that he could have done to expedite the resolution of the motion for reconsideration then pending before the RTC. The RTC had already ordered that the motion for reconsideration be submitted for resolution. Respondent could not be faulted if the acting presiding judge did not want to act on the motion until the regular presiding judge return. Regarding the other issues, as a lawyer, respondent is deemed to know the law, especially Batas Pambansa Blg. 22 (B.P. Blg. 22). By issuing a check in violation of the provisions of this law, respondent is guilty of serious misconduct.

In People v. Tuanda,[25] we explained the nature of violation of B.P. Blg. 22 as follows: The gravamen of the offense punished by B.P. Blg. 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentation for payment x x x. The thrust of the law is to prohibit under pain of penal sanctions, the making of worthless checks and putting them in circulation. Because of its deleterious effects on the public interest, the practice is proscribed by the law. The law punishes the act not as an offense against property but an offense against public order. x x x x The effects of the issuance of a worthless check transcends the private interests of the parties directly involved in the transaction and touches the interests of the community at large. The mischief it creates is not only a wrong to the payee or holder, but also an injury to the public. The harmful practice of putting valueless commercial papers in circulation, multiplied a thousandfold, can very well pollute the channels of trade and commerce, injure the banking system and eventually hurt the welfare of society and the public interest.[26]

In issuing a worthless check, respondent showed that he was unmindful of the deleterious effects of his act to the public interest and public order. Respondent violated the Attorneys Oath that he will, among others, obey the laws. The Code of Professional Responsibility specifically provides: CANON 1 A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR THE LAW AND LEGAL PROCESSES.

Rule 1.01 A Lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

CANON 7 A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR. Rule 7.03 A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession. [emphasis supplied]

The issuance of bouncing check cannot be countenanced nor condoned under any circumstances. The act of a lawyer in issuing a check which is drawn against insufficient funds constitutes deceitful conduct or conduct unbecoming an officer of the court. The Court has held that the issuance of checks which were later dishonored for having been drawn against a closed account indicates a lawyers unfitness for the trust and confidence reposed on him. It shows a lack of personal honesty and good moral character as to render him unworthy of public confidence.[27] As such, we have held that deliberate failure to pay just debts and the issuance of worthless checks constitute gross misconduct, for which a lawyer may be sanctioned with suspension from the practice of law.[28] The IBP Board of Governors recommended that respondent be suspended from the practice of law for one year. However, the Court notes that, in practice, acceptance fees of lawyers are generally non-refundable and the fact that, in the present case, respondent is willing to make good the amount of the bouncing check. Thus, we deem that one month suspension from the practice of law and the restitution of P85,000.00 to complainant would be sufficient in this case. The Court reiterates that membership in the legal profession is a privilege and demands a high degree of good moral character, not only as a condition precedent to admission, but also as a continuing requirement for the practice of law.[29] As servant of the law, a lawyer should moreover make himself an exemplar for others to emulate. The responsibilities of a lawyer are greater than those of a private citizen. He is looked up to in the community. IN VIEW WHEREOF, respondent Atty. Romeo R. Robiso is ORDERED SUSPENDED from the practice of law for a period of ONE (1) month effective upon receipt of this Decision. He is further ORDERED to pay complainant the full amount of P85,000.00, as reflected in the check. He is STERNLY WARNED that a commission of a similar offense will be acted upon with more severity. Let a copy of this Decision be furnished the Office of the Bar Confidant and the Integrated Bar of the Philippines to be entered into the personal record of Atty. Robiso. The Court Administrator is directed to circulate this order of suspension to all courts in the country. SO ORDERED.