Montecillo and del Mar vs Francisco Gica

et al

justices. Eventually, the CA suspended Atty.

Del Mar from practice.

60 SCRA 234 Legal Ethics Lawyers

Duty to the Courts Contemptuous
Language

The issue reached the Supreme Court. Del

Mar asked the SC to reverse his suspension
as well as the CA decision as to the
Montecillo case. The SC denied both and
this earned the ire of del Mar as he
demanded from the Clerk of the Supreme
Court as to who were the judges who voted
against him.

Jorge Montecillo was accused by Francisco

Gica of slander. Atty. Quirico del Mar
represented Montecillo and he successfully
defended Monteceillo in the lower court.
Del Mar was even able to win their
counterclaim thus the lower court ordered
Gica to pay Montecillo the adjudged moral
damages.
Gica appealed the award of damages to the
Court of Appeals where the latter court
reversed the same. Atty. Del Mar then filed a
motion for reconsideration where he made a
veiled threat against the Court of Appeals
judges intimating that he thinks the CA
justices knowingly rendered an unjust
decision and judgment has been rendered
through negligence and that the CA
allowed itself to be deceived.
The CA denied the MFR and it admonished
Atty. Del Mar from using such tone with the
court. Del Mar then filed a second MFR
where he again made threats. The CA then
ordered del Mar to show cause as to why he
should not be punished for contempt.
Thereafter, del Mar sent the three CA
justices a copy of a letter which he sent to
the President of the Philippines asking the
said justices to consider the CA judgment.
But the CA did not reverse its judgment. Del
Mar then filed a civil case against the three
justices of the CA before a Cebu lower court
but the civil case was eventually dismissed
by reason of a compromise agreement where
del Mar agreed to pay damages to the

The Supreme Court then directed del Mar to

submit an explanation as to why he should
not be disciplined. Del Mar in his
explanation instead tried to justify his
actions even stating that had he not been
convinced that human efforts in [pursuing
the case] will be fruitless he would have
continued with the civil case against the CA
justices. In his explanation, del Mar also
intimated that even the Supreme Court is
part among the corrupt, the grafters and
those allegedly committing injustice.
Del Mar even filed a civil case against some
Supreme Court justices but the judge who
handled the case dismissed the same.
ISSUE: Whether or not Atty. Del Mar
should be suspended.
HELD: Yes. Atty. Del Mar, by his
contemptuous acts is in violation of his
duties to the courts. As an officer of the
court, it is his sworn and moral duty to help
build and not destroy unnecessarily the high
esteem and regard towards the court so
essential to the proper administration of
justice.
It is manifest that del Mar has scant respect
for the two highest Courts of the land when
on the flimsy ground of alleged error in
deciding a case, he proceeded to challenge
1

the integrity of both Courts by claiming that

they knowingly rendered unjust judgment.
In short, his allegation is that they acted with
intent and malice, if not with gross
ignorance of the law, in disposing of the
case of his client.
Del Mar was then suspended indefinitely.
People vs Rosqueta, Jr.
Fernando, J.:
Facts
This is a case in re the disciplinary action
against respondent Gregorio B. Estacio for
failure to file the brief for appellants within
the period which expired on March 30,
1973.He failed to show cause as thus
required, and on September 7, 1973, the
Court issued a resolution suspending him
from the practice of law except for the
purpose of filing the brief which should be
done within 30 days from the receipt of
notice. Then on October 22, 1973, he filed a
motion for reconsideration wherein it
appeared that he did seek to explain his
failure to file the brief on time, but he left it
to be mailed on June 9, 1973 with Antonio
Rosqueta, Sr., father of appellants Antonio
Rosqueta, Jr. and Eusebio Rosaqueta, who,
however, was unable to do so as on the 10 th
of June, his house caught fire.
Then on December 27, 1973, there was a
motion of respondent submitting two
affidavits, one from Antonio Rosqueta, Jr.
and Citong Bringas, and the other from
Eusebio Rosqueta wherein they indicated
their consent and approval to respondents
motion to withdraw appeal.
Issue
WON he is liable for administartive
sanction.

Held
Yes. Respondents responsibility is mitigated
but he cannot be absolved from the
irresponsible conduct of which he is guilty.
Respondent should be aware that even in
those cases where counsel de parte is unable
to secure from appellants or from their near
relatives the amount necessary to pursue the
appeal, that does not necessarily conclude
his connection with the case. It has been a
commendable practice of some members of
the bar under such circumstances, to be
designated as counsel de oficio.
He should be aware that in the pursuance of
the duty owed this Court as well as to a
client, he cannot be too casual and
unconcerned about the filing of pleadings. It
is not enough that he prepares the,; he must
see to it that they are duly mailed.
At any rate, the suspension meted on him
under the circumstances is more than
justified. It seems, however, that well-nigh
five months had elapsed. That would suffice
to atone for his misdeed. The suspension of
Atty. Estacio is lifted.

July 21, 1967

G.R.
No.
L-26222
THE PEOPLE OF THE PHILIPPINES,
petitioner,
vs.
HONORABLE JUDGE HERNANDO
PINEDA of the Court of First Instance of
Lanao del Norte; and TOMAS
NARBASA, TAMBAC ALINDO and
RUFINO BORRES,
Sanchez, J.:
Facts:
2

Respondents Tomas Narbasa, TambacAlindo

and RufinoBorres stand indicted before the
Court of First Instance of Lanao del Norte,
as principals, in five (5) separate cases, four
for murder and one for frustrated murder.
The five informations were planted upon
facts gathered by the prosecuting attorney
from his investigation.
The indictments are bottomed upon the
following alleged pivotal facts:
On the night of July 29, 1965, the occupants
of the home of the spouses Teofilo Mendoza
and ValerianaBontilao de Mendoza in
Pugaan City of Iligan, were asleep. It was
then that guns (rifle, caliber 22) and
paliuntod (homemade gun) were fired in
rapid succession from outside the house.
Teofilo Mendoza fell dead. Thereafter,
defendants below destroyed the door of the
house, entered therein, and let loose several
shots killing Neceforo Mendoza, all minor
children of the couple and wounding
ValerianaBontilao de Mendoza.
Two of the three defendants in the five
criminal cases heretofore listed Tomas
Narbasa and TambakAlindo moved for a
consolidation thereof into one (1) criminal
case. Their plea is that said cases arose out
of the same incident and motivated by one
impulse.
Giving the nod to defendants claim,
respondent Judge, in an order dated May 13,
1966, directed the City Fiscal to unify all the
five criminal cases, and to file one single
information in Case 1246. He also ordered
that the other four cases, Nos. 1247, 1248,
1249 and 1250 be dropped from the
docket.

The City Fiscal balked at the foregoing

order, sought reconsideration thereof, upon
the ground that more than one gun was
used, more than one shot was fired and more
than one victim was killed. The defense
opposed.On May 31, 1966, respondent
Judge denied the motion to reconsider. He
took the position that the acts complained of
stemmed out of a series of continuing acts
on the part of the accused, not by different
and separate sets of shots, moved by one
impulse and should therefore be treated as
one crime though the series of shots killed
more than one victim; and that only one
information for multiple murder should be
filed, to obviate the necessity of trying five
cases instead of one.
Primarily to annul respondent Judges orders
of May 13, 1966 and May 31, 1966, as
having been issued without or in excess of
jurisdiction and/or with grave abuse of
discretion, the People came to this Court
on certiorari with a prayer for a writ of
preliminary injunction, and for other reliefs.
This Court, on July 1, 1966, issued the
cease-and-desist order prayed for.
Issue:1. Should there be one information,
either for the complex crime of murder and
frustrated murder or for the complex crime
of robbery with multiple homicide and
frustrated homicide?
2. Whether it was proper for the fiscal to
disregard the affidavit of the suspects
claiming that they committed robbery?
3. Whether or not the the judge can compel
the Fiscal to change the information.
3

Held:

1. On the applicability of Article 48 of the

RPC on complex crimes, a different rule
governs where separate and distinct acts
result in a number killed. Deeply rooted is
the doctrine that when various victims
expire from separate shots, such acts
constitute separate and distinct crimes.5

In the case at bar, defendants performed

several acts. And the informations charge
conspiracy amongst them. Needless to state,
the act of one is the act of all.10 Not
material here, therefore is the finding in
Lawas that it is impossible to ascertain the
individual deaths caused by each and
everyone of the accused. It is to be borne in
mind, at this point, that apply the first half of
Article 48, heretofore quoted, there must be
singularity of criminal act; singularity of
criminal impulse is not written into the
law.11
The respondent Judge reasons out in his
order of May 31, 1966 that consolidation of
the five cases into one would have the
salutary effect of obviating the necessity of
trying five cases instead of one. To save
time, indeed, is laudable. Nonetheless, the
statute confers upon the trial judge the
power to try these cases jointly, such that the
fear entertained by respondent Judge could
easily be remedied.12
Upon the facts and the law, we hold that the
City Fiscal of Iligan City correctly presented

the five separate informations four for

murder and one for frustrated murder.
2. As to the possibility of that there existed
complex crime, the killing being necessary
for a robbery based on an affidavit of a
suspect, the rule of presumption long
familiar is that official duty has been
regularly performed.13 If the Fiscal has not
seen fit to give weight to said affidavit
wherein it is alleged that certain personal
properties (transistor radio and money) were
taken away by the culprits after the shooting,
we are not to jettison the prosecutors
opinion thereon. The Fiscal could have had
reasons for his act. For one thing, there is
the grave problem of proving the elements
of that offense robbery. For another, the
act could have been but a blind to cover up
the real intent to kill. Appropriately to be
noted here is that all the informations
charged evident premeditation. With
ponderables and imponderables, we are
reluctant to hazard a guess as to the reasons
for the Fiscals action. We are not now to
say that, on this point, the Fiscal has abused
his discretion. A prosecuting attorney, by the
nature of his office, is under no compulsion
to file a particular criminal information
where he is not convinced that he has
evidence to prop up the averments thereof,
or that the evidence at hand points to a
different conclusion. This is not to discount
the possibility of the commission of abuses
on the part of the prosecutor. But we must
have to recognize that a prosecuting attorney
should not be unduly compelled to work
against his conviction. In case of doubt, we
should give him the benefit thereof. A
contrary rule may result in our courts being
unnecessarily swamped with unmeritorious
4

cases. Worse still, a criminal suspects right

to due process the sporting idea of fair
play may be transgressed. So it is, that in
People vs. Sope 75 Phil. 810, 815, this Court
made the pronouncement that [i]t is very
logical that the prosecuting attorney, being
the one charged with the prosecution of
offenses, should determine the information
to be filed and cannot be controlled by the
off ended party.14
3. The impact of respondent Judges orders
is that his judgment is to be substituted for
that of the prosecutors on the matter of
what crime is to be filed in court. The
question of instituting a criminal charge is
one addressed to the sound discretion of the
investigating Fiscal. The information he
lodges in court must have to be supported by
facts brought about by an inquiry made by
him. It stands to reason then to say that in a
clash of views between the judge who did
not investigate and the fiscal who did, or
between the fiscal and the offended party or
the defendant, those of the Fiscals should
normally prevail. In this regard, he cannot
ordinarily be subject to dictation. We are not
to be understood as saying that criminal
prosecution may not be blocked in
exceptional cases. A relief in equity may be
availed of to stop it purported enforcement
of a criminal law where it is necessary (a)
for the orderly administration of justice; (b)
to prevent the use of the strong arm of the
law in an oppressive and vindictive manner;
(c) to avoid multiplicity of actions; (d) to
afford adequate protection to constitutional
rights; and (e) in proper cases, because the
statute relied upon is unconstitutional or was
held invalid. 15 Nothing in the record
would as much as intimate that the present

case fits into any of the situations just

recited.
And at this distance and in the absence of
any compelling fact or circumstance, we are
loathe to tag the City Fiscal of Iligan City
with abuse of discretion in filing separate
cases for murder and frustrated murder,
instead of a single case for the complex
crime of robbery with homicide and
frustrated homicide under the provisions of
Article 294 (1) of the Revised Penal Code
or, for that matter, for multiple murder and
frustrated murder. We state that, here, the
Fiscals discretion should not be controlled.
[G.R. Nos. 151809-12. April 12, 2005]
PRESIDENTIAL
COMMISSION
ON GOOD
GOVERNMENT (PCGG), petitio
ner, vs. SANDIGANBAYAN (Fifth
Division), LUCIO C. TAN,
CARMEN
KHAO
TAN,
FLORENCIO
T.
SANTOS,
NATIVIDAD
P.
SANTOS,
DOMINGO CHUA, TAN HUI
NEE, MARIANO TAN ENG
LIAN, ESTATE OF BENITO TAN
KEE HIONG (represented by
TARCIANA
C.
TAN),
FLORENCIO N. SANTOS, JR.,
HARRY C. TAN, TAN ENG
CHAN, CHUNG POE KEE,
MARIANO KHOO, MANUEL
KHOO, MIGUEL KHOO, JAIME
KHOO, ELIZABETH KHOO,
CELSO RANOLA, WILLIAM T.
WONG, ERNESTO B. LIM,
BENJAMIN
T.
ALBACITA,
WILLY CO, ALLIED BANKING
5

CORP.,
ALLIED LEASING AND FINAN
CE
CORPORATION,
ASIA
BREWERY,
INC.,
BASIC
HOLDINGS CORP., FOREMOST
FARMS,
INC.,
FORTUNE
TOBACCO CORP., GRANDSPAN
DEVELOPMENT
CORP.,
HIMMEL INDUSTRIES, IRIS
HOLDINGS
AND
DEVELOPMENT
CORP.,
JEWEL
HOLDINGS,
INC.,
MANUFACTURING SERVICES
AND
TRADE
CORP.,
MARANAW HOTELS
AND
RESORT CORP.,
NORTHERN
TOBACCO REDRYING PLANT,
PROGRESSIVE FARMS, INC.,
SHAREHOLDINGS,
INC.,
SIPALAY TRADING CORP.,
VIRGO
HOLDINGS
&
DEVELOPMENT CORP., and
ATTY.
ESTELITO
P.
MENDOZA, respondents.

First Instance praying for the assistance and

supervision of the court in GENBANK's
liquidation as mandated by Sec. 29 of
Republic Act No. 265.
In 1986, PCGG was established to
recover the alleged ill-gotten wealth of
former Pres. Marcos, his family and his
cronies. Pursuant to this mandate, PCGG
filed with the Sandiganbayan a complaint
against respondents Lucio Tan.
PCGG issued several writs of
sequestration on properties allegedly
acquired by the respondents. Respondents
Tan filed petitions for certiorari, prohibition
and injuction to nullify among others the
writs of sequestration. In these cases,
respondents Tan were represented by former
Solicitor General Estelito P. Mendoza who
has then resumed his private practice of law.
In 1991, PCGG filed motions to
disqualify respondent Mendoza as counsel
for respondents, invoking Rule 6.03 of the
Code of Professional Responsibility which
prohibits former government lawyers from
accepting engagement or employment in
connection with any matter in which he had
intervened while in said service.
ISSUE:

PUNO, J.:
FACTS:
In 1976, General Bank and Trust
Company
(GENBANK)
encountered
financial difficulties. As bailout, the Central
Bank extended emergency loans to it which
reached P310 million. GENBANK failed to
recover and was declared insolvent, unable
to resume business. Central Bank ordered its
liquidation. At the public bidding of
GENBANK's assets, Lucio Tan group
submitted the winning bid. Subsequently,
former Solicitor General Estelito P.
Mendoza filed a petition with the Court of

Whether or not former Solicitor General

Mendoza should be disqualified.
HELD:
No.
The Court discussed the
meaning of "matter" to which Rule 6.03
pertained to. It is any discrete, isolatable act
as well as identifiable transaction or conduct
involving a particular situation and specific
party, and not merely an act of drafting,
enforcing or interpreting government or
agency procedures, regulations or laws, or
briefing abstract principles of law. Mendoza
merely gave advice on the procedure to
6

liquidate GENBANK and this is not the

"matter" contemplated by Rule 6.03. It was
an act of enforcing or interpreting
government or agency procedures which do
not fall within the scope of the term "matter"
and cannot disqualify. Mendoza had nothing
to do with the decision of the Central Bank
to liquidate GENBANK. He did not
participate in the sale of GENBANK to
Allied Bank. The matter where he got
himself involved was in informing Central
Bank on the procedure provided by law to
liquidate GENBANK thru the courts and in
filing the necessary petition in Sp. Proc. No.
107812 in the then Court of First
Instance. Code 6.03 of the Code of
Professional Responsibility cannot apply to
respondent Mendoza because his alleged
intervention while a Solicitor General in
Sp. Proc. No. 107812 is an intervention on
a matter different from the matter
involved in Civil Case No. 0096 (to nullify
the writs of sequestration).

Thus, the rule was not interpreted to

cause a chilling effect on government
recruitment of able legal talent.

The meaning of "intervention." It

only includes an act of a person who has the
power to influence the subject proceedings.
The intervention cannot be insubstantiated
and insignificant. Again, the petition filed by
Mendoza merely sought the assistance of the
court in the liquidation of GENBANK. The
principal role of the court in this type of
proceedings is to assist the central Bank in
determining claims of creditors against the
GENBANK. In such a proceeding, the
participation of the Office of the Solicitor
General is not that of the usual court litigator
protecting the interest of government.

The position of Solicitor General

should be endowed with a great degree of
independence.

Balancing Policy Considerations

Rule 6.03 of our Code of
Professional Responsibility represents a
commendable effort on the part of the IBP to
upgrade the ethics of lawyers in the
government service.

In interpreting Rule 6.03, the Court

also cast a harsh eye on its use as
a litigation tactic to harass opposing
counsel as well as deprive his client of
competent legal representation.
It cannot be doubted that granting a
disqualification motion causes the client to
lose not only the law firm of choice, but
probably an individual lawyer in whom the
client has confidence. The effects of this
prejudice to the right to choose an effective
counsel cannot be overstated for it can result
in denial of due process.
The Court has to consider also the
possible adverse effect of a truncated
reading of the rule on the official
independence of lawyers in the
government service.

The mischief sought to be remedied

by Rule 6.03 of the Code of Professional
Responsibility is the possible appearance
of
impropriety and
loss
of
public confidence in the government.
The Court should apply Rule 6.03 in
all its strictness for it correctly disfavors
lawyers who switch sides.
The act of respondent Mendoza in
informing the Central Bank on the procedure
how to liquidate GENBANK is a different
matter from the subject matter of Civil Case
No. 0005 which is about the sequestration of
the shares of respondents Tan, et al., in
Allied Bank. Consequently, the danger that
confidential official information might be
divulged is nil, if not inexistent. To be sure,
7

there areno inconsistent sides to be

bothered about in the case at bar. For there is
no question that in lawyering for
respondents Tan, et al., respondent Mendoza
is not working against the interest of Central
Bank. On the contrary, he is indirectly
defending the validity of the action of
Central Bank in liquidating GENBANK and
selling it later to Allied Bank. Their
interests coincide instead of colliding. It is
for this reason that Central Bank offered no
objection to the lawyering of respondent
Mendoza in Civil Case No. 0005 in defense
of respondents Tan, et al. There is no
switching of sides for no two sides are
involved.

People of the Philippines vs Madera

On August 8, 2012
57 SCRA 349 Legal Ethics Prosecutor
Must Recommend Dismissal of Case If
There is No Ground To Sustain It
In April 1970, while Elino Bana was
sleeping in his house, he was shot by
Raymundo Madera. Behind Madera were
Marianito Andres and Generoso Andres.
Elino Bana died before he could be brought
to the hospital but he made a dying
statement wherein he positively identified
Madera as his shooter. Two of Banas sons
who were at the house when the shooting
happened identified Madera as the shooter
as well as the two behind him. The trial
court convicted the three for murder. They
appealed. Then Solicitor General Estelito
Mendoza recommended the conviction of

Madera but also recommended the acquittal

of Marianito and Generoso.
ISSUE: Whether or not the conviction is
correct.
HELD: No, insofar as Marianito and
Generoso is concerned Maderas guilt is
proven beyond reasonable doubt. But
Marianitos and Generosos guilt were not
established. Their mere presence behind
Madera when the latter shot and killed Bana
is not constitutive of their guilt without any
showing that they shared the criminal intent
of Madera. It must be shown that they had
knowledge of the criminal intention of the
principal, which may be demonstrated by
previous or simultaneous acts which
contributes to the commission of the offense
as aid thereto whether physical or moral.
This was absent in the case at bar.
The Supreme Court lauded the Solicitor
General for recommending the acquittal of
the two. The Supreme Court also
emphasized that the prosecutors finest hour
is not when he wins a case with the
conviction of the accused. His finest hour is
still when, overcoming the advocates
natural obsession for victory, he stands up
before the Court and pleads not for the
conviction of the accused but for his
acquittal. For indeed, his noble task is to
prosecute only the guilty and to protect the
innocent.

People vs Sendaydiego, et. al.

Chester Cabalza recommends his visitors to
please read the original & full text of the
case
cited.
Xie
xie!
People
vs
G.R.
No.

Sendaydiego,
et.
al.
L-33254
and
33253
8

January

20,

1978

Facts:
In these three cases of malversation through
falsification, the prosecution's theory is that
in 1969 Licerio P. Sendaydiego, the
provincial treasurer of Pangasinan, in
conspiracy with Juan Samson y Galvan, an
employee of a lumber and hardware store in
Dagupan City, and with Anastacio Quirimit,
the provincial auditor, as an accomplice,
used six (6) forged provincial vouchers in
order to embezzle from the road and bridge
fund the total sum of P57,048.23.

Paragraph 5 is a certification signed by the

provincial treasurer that the account
mentioned in the provincial engineer's
certification "was paid in the amount and on
the date shown below and is chargeable as
shown in the summary hereof. " It may be
noted that the provincial treasurer signs two
part
of
the
voucher.
Issue:
Whether or not appellants are liable for the
crimes of falsicification of public documents
and
six
crimes
of
malversation?
Held:

The provincial voucher in these cases has

several parts. In the upper part with the
legend "ARTICLE OR SERVICE" the
nature of the obligation incurred is
indicated. That part is supposed to be signed
by two officials of the provincial engineer's
office and by the governor's representative.
The middle part of the voucher contains five
numbered
printed
paragraphs.
Paragraph 1 is a certificate to be signed by
the creditor. It is stated therein that the
creditor vouches that the expenses "were
actually and necessarily incurred". In the
instant cases paragraph 1 was not signed
presumably because it is not relevant to the
purchase of materials for public works
projects. Paragraph 2 is a certification that
the expenses are correct and have been
lawfully incurred. It is signed by the
provincial engineer. Paragraph 3 contains
these words: "Approved for pre-audit and
payment, appropriations and funds being
available therefore." This is signed by the
provincial treasurer. Paragraph 4 is a
certification which, as filed up in Exhibit K,
Voucher No. 10724 dated February 28,
1969, certifying that the voucher has been
pre-audited and signed by the auditor.

Samson is convicted of six crimes of

falsification of a public document and six
crimes of malversation. In lieu of the
penalties imposed by the trial court, he is
sentenced to the following penalties: For
each of the six falsification of the vouchers
(Exh. K, O, P, Q, R and S), Samson is
sentenced to an indeterminate penalty of two
(2) years of prison correccional minimum,
as minimum, to four (4) years of prision
correccional medium, as maximum, and to
pay a fine of three thousand pesos. For the
malversation of the sum of P16,727.52
covered by voucher No. 10724 (Exh. K),
Samson is sentenced to an indeterminate
penalty of twelve (12) years of prision
mayor maximum, as minimum, to seventeen
(17) years of reclusion temporal medium, as
maximum; to pay a fine in the amount of
P16,727.52, and to indemnify the province
of Pangasinan in the same amount (Criminal
Case NO. 23349, L-33252). For the
malversation of the sum of P14,571.81
covered by voucher No. 11995 (Exh. O),
Samson is sentenced to an indeterminate
penalty of twelve (12) years of prision
mayor maximum, as minimum, to seventeen
(17) years of reclusion temporal medium, as
maximum; to pay a fine in the sum of
9

P14,571.81, and to indemnify the province

of Pangasinan in the same amount (Criminal
Case No. 23351, L-33254). For the
malversation of the sum of P6,290.60
covered by voucher No. 11870 (Exh. Q),
Samson is sentenced to an indertiminate
penalty of nine (9) years of prision mayor
medium, as minimum, to thirteen (13) years
of reclusion temporal minimum, as
maximum; to pay a fine of P6,290.60, and to
indemnify the province of Pangasinan in the
same amount (Criminal Case No. 23350, L33253). For the malversation of the sum of
P9,769.64 covered by voucher No. 11871
(Exh. R), Samson is sentenced to an
indeterminate penalty of nine (9) years of
prision mayor medium, as minimum, to
thirteen (13) years of reclusion temporal
minimum, as maximum; to pay a fine of
P9,769.64, and to indemnify the province of
Pangasinan in the same amount (Criminal
Case No. 23350, L-33253). For the
malversation of the sum of P5,187.28,
covered by voucher No. 11869 (Exh. P),
Samson is sentenced to an indeterminate
penalty of five (5) years of prision
correccional maximum, as minimum, to
eight (8) of prision mayor minimum, as
maximum; to pay a fine of P5,187.28, and to
indemnify the province of Pangasinan in the
same amount (Criminal Case No. 23350, L33253).
For the malversation of the sum of
P4,501.38 covered by voucher no. 11872
(Exh. S), Samson is sentenced to an
indeterminate penalty of five (5) years of
prision correccional maximum, as minimum,
to eight (8) years of prision mayor
minimum, as maximum; to pay a fine of
P4,501.38, and to indemnify the province of
Pangasinan in the same amount (Criminal
Case No. 23350, L-33253). In the service of
the twelve penalties meted to Samson, the
threefold limit provided for in article 70 of
the Revised Penal Code should be observed

(People vs. Escares, 102 Phil. 677), meaning

that the maximum penalty that he should
serve is three times the indeterminate
sentence of twelve (12) years to seventeen
(17) years, the severest penalty imposed on
him, or thirty-six (36) years to fifty-one (51)
years (see People vs. Peas, 68 Phil. 533).
The maximum duration of his sentences
should not exceed forty (40) years
(Penultimate par. of art. 70; People vs.
Alisub, 69 Phil. 362; People vs. Concepcion,
59 Phil. 518, 68 Phil. 530 and 69 Phil. 58).
The estate of the late Licerio P. Sendaydiego
is ordered to indemnify the province of
Pangasinan in the sum of P57,048.23.
Samson and the said estate are solitarily
liable for the said indemnity (Art. 110,
Revised Penal Code). Samson should pay
one-half of the costs. SO ORDERED.
PAJARES VS. ABAD SANTOS 30 SCRA
748
Facts:
Appellant Pajares was engaged in the
business of buying and selling merchandise
at her stall and appelle Udharam Bazar &
Co. was one of her creditors from whom she
used to buy on credit ready-made goods for
resale.
Consequently, the company sued Pajares for
the recovery of a certain sum of money for
the goods delivered to her in good condition
(the same having been sold), but did not
make the full payment. Pajares, however,
moved for a bill of particulars, alleging that
without which she would not be able to meet
the issues raised in the complaint. Such
having been denied, appellant moved for a
motion for reconsideration. The same was
10

also denied and clogged the court for seven

years.
Issue:
Whether or not there has been a faithful
adherence (on the part of Pajares lawyer) to
Rule 7, section 5 of the Rules of Court.
Held:
No, there was no faithful adhererence.
Clearly, there must be faithful adherence to
Rule 7, section 5 of the Rules of Court
which provides that the signature of an
attorney constitutes a certificate by him that
he has read the pleading and that to the best
of his knowledge, information and belief,
there is good ground to support it; and that
it is not interposed for delay and expressly
admonishes that for a willful violation of
this rule an attorney may be subjected to
disciplinary action.
Had appellant been but prudently advised by
her counsel to confess judgment and ask
from her creditor the reasonable time she
needed to discharge her lawful indebtedness,
the expenses of litigation that she has
incurred would have been more than
sufficient to pay off her just debt to appelle.

Misamin vs. San Juan (Adm Case 1418

August 31, 1976)
Post under case digests, Legal Ethics at
Sunday, March 18, 2012 Posted by
Schizophrenic Mind

Facts: Herein respondent admits having

appeared as counsel for the New Cesars
Bakery in the proceeding before the NLRC
while he held office as captain in the Manila
Metropolitan Police. Respondent contends
that the law did not prohibit him from such
isolated exercise of his profession. He
contends that his appearance as counsel
while holding a government position is not
among the grounds provided by the Rules of
Court for the suspension or removal of
attorneys.
Issue: Whether or not the administrative
case against the defendant should prosper
Held: The court ruled in the negative. The
court ruled that the matter is to be decided in
an administrative proceeding as noted in the
recommendation of the Solicitor General.
Nonetheless, the court held that while the
charges have to be dismissed, still it would
not be inappropriate for respondent member
of the bar to avoid all appearances of
impropriety. Certainly, the fact that the
suspicion could be entertained that far from
living true to the concept of a public office
being a public trust, he did make use, not so
much of whatever legal knowledge he
possessed, but the influence that laymen
could assume was inherent in the office held
not only to frustrate the beneficent statutory
scheme that labor be justly compensated but
also to be at the beck and call of what the
complainant called alien interest, is a matter
that should not pass unnoticed. Respondent,
in his future actuations as a member of the
bar should refrain from laying himself open
to such doubts and misgivings as to his
fitness not only for the position occupied by
him but also for membership in the bar. He
is not worthy of membership in an
honorable profession who does not even
take care that his honor remains unsullied.
IN RE GUTTIEREZ
11

On November 5, 2010
Legal Ethics 5 SCRA 661 Conditional
Pardon will not bar disbarment
Attorney Gutierrez was convicted for the
murder of one Filemon Samaco in 1956. He
was sentenced to the penalty of reclusion
perpetua. In 1958, after serving a portion of
the penalty, he was granted a conditional
pardon by the President. He was released on
the condition that he shall not commit any
crime. Subsequently, the widow of Samaco
filed a disbarment case against Gutierrez by
reason of the latters conviction of a crime
involving moral turpitude. Murder, is
without a doubt, such a crime.
ISSUE: Whether or not Gutierrez may be
disbarred considering the fact that he was
granted pardon.
HELD: Yes. The pardon granted to
Gutierrez is not absolute but conditional. It
merely remitted his sentence. It does not
reach the offense itself. Gutierrez must be
judged upon the fact of his conviction for
murder without regard to the pardon (which
he invoked in defense). The crime was
actually qualified by treachery and
aggravated by its having been committed in
hand, by taking advantage of his official
position (Gutierrez being municipal mayor
at the time) and with the use of motor
vehicle. The degree of moral turpitude
involved is such as to justify his being
purged from the profession.

157 scra 766

Publication of Supreme Court Decisions in
the Official Gazette
The firewall of a burned out building owned
by petitioners collapsed and destroyed the
tailoring shop occupied by the family of the
private respondents resulting in injuries to
private respondents had been warned by
petitioners to vacate their shop in view of its
proximity to the weakened wall but the
former failed to do. In the RTC, petitioners
were found guilty of gross negligence. On
the last day of the 15 days period to file an
appeal, petitioners filed a motion for
reconsideration which was again denied.
The Supreme Court finds that Court of
Appeal did not commit a grave abuse of
discretion when it denied petitioners motion
for reconsideration. It correctly applied the
rule laid down in Habulayas vs Japzon.
Counsel for petitioner contends that the said
case should not be applied non-publication
in the Official Gazette.
ISSUE: Whether or not Supreme Court
decisions must be published in the Official
Gazette before they can be binding.
HELD: There is no law requiring the
publication of Supreme Court decision in the
Official Gazette before they can be binding
and as a condition to their becoming
effective. It is bounden duty of counsel as
lawyer in active law practice to keep abreast
of decisions of the Supreme Court
particularly where issues have been
clarified, consistently reiterated and
published in the advance reports of Supreme
Court decisions and in such publications as
the SCRA and law journals.

De Roy vs Court of Appeals

12

Oronce V. Ca
Facts:
Private respondent Priciliano B.
Gonzales Development Corporation was the
registered owner of a parcel of land at No.
52 Gilmore Street, New Manila, Quezon
City.
In June 1988, it obtained a four million
peso loan from the China Banking
Corporation. To guarantee payment of the
loan, private respondent mortgaged the
Gilmore property and all its improvements
to said bank. Due to irregular payment of
amortization, interests and penalties on the
loan accumulated through the years.
On April 13, 1992, private respondent,
through its president, Antonio B. Gonzales,
signed and executed a Deed of Sale with
Assumption of Mortgage covering the
Gilmore property and its improvements, in
favor of petitioners Rosita Flaminiano and
Felicidad L. Oronce. The deed, states that the
sale was in consideration of the sum
of P5,400,000.00 and that private respondent
will deliver said property after expiration of
1 year from date of sale.
On the other hand, petitioners bound
themselves to pay private respondents
indebtedness
with
China
Banking
Corporation.
In fulfillment of the terms and
conditions embodied in the Deed of Sale
with Assumption of Mortgage, petitioners
paid private respondents indebtedness with
the bank. However, private respondent

reneged on its obligation to deliver

possession of the premises to petitioners
upon the expiration of the one-year period
from April 13, 1992. Almost six months
later since the execution of the instrument or
on October 2, 1992, petitioners caused the
registration of the Deed of Sale with
Assumption of Mortgage with the Register
of Deeds. Simultaneously, they obtained a
new title, consistent with the fact that they
are the new owners of the property.
Sometime in July 1993, they paid the real
estate taxes.
On November 12, 1993, petitioners sent
private respondent a demand letter asking it
to vacate the premises. Said letter, just like
three other consecutive notices sent through
the Quezon City post office, was
unclaimed. Hence, on April 11, 1994,
petitioners filed before the Metropolitan
Trial Court of Quezon City, a complaint for
unlawful
detainer
against
private
respondent. In its answer to the complaint,
private respondent raised the issue of
ownership over the property. It impugned
petitioners right to eject, alleging that
petitioners had no cause of action against it
because it was merely a mortgagee of the
property. It argued that when the parties
executed the Deed of Sale with Assumption
of Mortgage, its real intention was to forge
an equitable mortgage and not a sale. It
pointed out three circumstances indicative of
an equitable mortgage, namely: inadequacy
of the purchase price, continued possession
by private respondent of the premises, and
petitioners retention of a portion of the
purchase price.

13

MTC ruled in favor of petitioners

Flaminiano and Oronce. On appeal to the
RTC, it affirmed the decision of MTC. On
Dec q2 1995 private respondent filed with
the CA a petition for certiorari with TRO
and preliminary injunction. CA ruled in
favor of private respondents and granted the
TRO and Preliminary Injunction enjoining
the implementation of the writ of execution
and the decision of the RTC which is the
basis of this petition.

However, pending litigation in this

Court, private respondent filed an urgent
motion to cite petitioner Rosita L.
Flaminiano and her husband, Atty. Eduardo
B. Flaminiano, in contempt of court. The
motion was founded on an affidavit of Dr.
Tadeo Gonzales who resided at the contested
property, deriving his right to do so from
private respondent corporation that is owned
by his family. Gonzales alleged that on
September 20, 1997, petitioner Flaminiano
and her husband entered the property
through craftiness and intimidation. At
around 5:30 p.m. on that day, two (2) men
knocked at the gate. When the houseboy,
Luis R. Fernandez, opened the gate for
pedestrians tentatively, the two men told him
that they would like to visit Gonzales
mother who was ailing.
Once inside, the two men identified
themselves as policemen and opened the
gate for twenty (20) men, two (2) trucks and
an L-300 van to enter. When Gonzales went
outside the house, he saw thirty (30) to forty
(40) men and two (2) trucks entering the
driveway. The person he asked regarding the
presence of those people inside the property
turned out to be the brother of petitioner

Flaminiano. That person said, Kami ang

may-ari dito. Matagal na kaming nagtitiis,
kayo ang dapat sa labas. After Gonzales
had told him that the property was still under
litigation before this Court, the man said,
Walang Supreme Court Supreme
Court. When Gonzales asked petitioner
Flaminiano, who was inside the premises, to
order the people to leave, she said,
Papapasukin namin ito dahil sa amin ito.
Maglalagay ako ng tao diyan sa loob, sa
harap, sa likod. Wala ng pakiusap. When a
power generator was brought inside the
property and Gonzales pleaded that it be
taken out because the noise it would create
would disturb his ailing mother, Emiliana
Gonzales, petitioner Flaminiano said,
Walang
awa-awa
sa
akin. Atty.
Flaminiano butted in and, referring to
Gonzales mother, said, Ialis mo na,
matanda na pala. When Gonzales
prevented the switching on of some lights in
the house due to faulty wiring, Atty.
Flaminiano suggested, Bakit hindi mo
ipasunog ito? May insurance pa kayo 5
million,
madali
lang
yan.
Short
circuit. Since the Flaminianos and their
crew were not about to leave the property,
Gonzales called up his brother, Atty.
Antonio Gonzales, and informed him of
what happened. However, instead of
confining themselves in the driveway, the
Flaminianos and their group entered the
terrace, bringing in food.
Gonzales was all the while concerned
about his 81-year-old mother who had just
been discharged from the hospital. However,
the Flaminianos stayed until the next day,
September 22, 1997, using the kitchen,
furniture and other fixtures in the house.
14

Gonzales took pictures of Flaminiano and

his companions. When Atty. Flaminiano
arrived, he confronted Gonzales and told
him, Hindi ako natatakot kahit kanino ka
pa mag-report, kahit pa sa Supreme Court,
gusto ko nga mag-reklamo kayo para
matapos ang kaso. Sa September 25, may
shooting dito, gagawin ko ang gusto ko
dito.
Also, the Flaminianos committed
additional contumacious acts in preventing
another member of the family, Mrs. Cipriana
Gonzales, from entering the property. Mrs.
Gonzales said that the Flaminianos and their
people used the whole house, except the
bedrooms, for their filming activities.
Thereafter, private respondent filed an
urgent motion for the issuance of a
temporary restraining order and/or writ of
preliminary injunction with this Court to
enjoin petitioners, Atty. Flaminiano and their
representatives and agents from preventing
private respondent, its agents and
representatives from entering the property
and to cease and desist from occupying the
property or from committing further acts of
dispossession of the property. On October
13, 1997, this Court issued the temporary
restraining order prayed for. However,
instead of complying with this Courts order,
petitioners continued occupying the
property. On October 16, 1997, after
receiving a copy of the TRO, petitioners put
up a huge billboard in front of the property
stating that it is the national headquarters of
the Peoples Alliance for National
Reconciliation and Unity for Peace and
Progress (PANRUPP).

In their comment on the motion for

contempt, petitioners noticeably did not
controvert the facts set forth by private
respondent in said motion. Instead, it
reasserted its claim of ownership over the
property.
They informed the Court that they are
now leasing the property to PANRUPP from
October 1, 1997 to September 30, 1998.
They alleged, however, that the property is
in a deplorable state of decay and
deterioration that they saw the need to act
swiftly and decisively to prevent further
destruction of the property where they
invested millions of pesos of their life-time
savings to acquire the same. Hence, they
sought the assistance of barangay officials in
Barangay Mariana, New Manila who helped
them effect the peaceful entry into the
property of the petitioners without the use of
strategy, force and intimidation contrary to
what was alleged in the motion for
contempt. They peacefully took over
possession of the property on September 20,
1997 but allowed the immediate members of
the family of private respondents president
to stay on. The family finally agreed to
vacate the premises on October 5, 1997
upon the offer of the petitioners to shoulder
partially the expenses for the hospitalization
of the ailing mother at the St. Luke General
Hospital where she was brought by an
ambulance accompanied by a doctor at
petitioners expense.
Petitioners questioned the issuance by
this Court of the TRO on October 13, 1997,
asserting that when it was issued, there were
no more acts to restrain the illegal
occupants of the subject property (as they)
15

had already peacefully vacated the premises

on October 5, 1997 or more than a week
after the said TRO was issued by the Third
Division of this Court. They prayed that the
motion for contempt be denied for lack of
merit and that the TRO issued be lifted and
set aside.

possession of the same property in

litigation. Her act of entering the property
in defiance of the writ of preliminary
injunction issued by the Court of Appeals
constituted indirect contempt under Section
3, Rule 71 of the Rules of Court that should
be dealt with accordingly.

Issue: WON the acts of Atty Flaminiano are

appropriate

Be that as it may, what is disturbing to

the Court is the conduct of her husband,
Eduardo Flaminiano, a lawyer whose
actuations as an officer of the court
should
be
beyond
reproach. His
contumacious acts of entering the
Gilmore property without the consent of
its occupants and in contravention of the
existing writ or preliminary injunction
issued by the Court of Appeals and
making utterances showing disrespect for
the law and this Court, are certainly
unbecoming of a member of the
Philippine Bar. To be sure, he asserted in
his comment on the motion for contempt
that petitioners peacefully took over the
property. Nonetheless, such peaceful
take-over cannot justify defiance of the
writ of preliminary injunction that he
knew was still in force. Notably, he did
not comment on nor categorically deny
that he committed the contumacious acts
alleged by private respondent. Through
his acts, Atty. Flaminiano has flouted his
duties as a member of the legal
profession. Under
the
Code
of
Professional
Responsibility,
he
is
prohibited from counseling or abetting
activities aimed at defiance of the law or
at lessening confidence in the legal
system.

The issue of ownership has not been

definitively resolved for the provisional
determination of that issue that should have
been done by the MTC at the earliest
possible time, would only be for the purpose
of determining who has the superior right to
possess the property. Inasmuch as this Court
has resolved that the rightful possessor
should have been private respondent and its
representatives and agents, the TRO issued
by this Court on October 13, 1997 should
not be lifted. That the TRO was issued days
before private respondent left the property is
immaterial. What is in question here is
lawful possession of the property, not
possession on the basis of self-proclaimed
ownership of the property. For their part,
petitioners should cease and desist from
further exercising possession of the same
property which possession, in the first place,
does not legally belong to them.
The conduct of petitioner Flaminiano in
taking possession over the property as
alleged by private respondent through Tadeo
Gonzales is deplorably high-handed. On an
erroneous assumption that she had been
legally vested with ownership of the
property, she took steps prior to the present
proceedings by illegally taking control and

16

WHEREFORE, the instant petition for

review on certiorari is hereby DENIED and
the questioned Decision of the Court of
Appeals AFFIRMED without prejudice to
the filing by either party of an action
regarding the ownership of the property
involved. The temporary restraining order
issued on October 13, 1997 is hereby made
permanent. Petitioners and their agents are
directed to turn over possession of the
property to private respondent.

illegal possession of explosives (Crim. Case

6237).
The records of Criminal Case 6237 were
then elevated to the Court of Appeals where
petitioner as accused-appellant raised the
issues of (1) an erroneous conviction for
illegal possession of explosives when there
was no proof of an essential element of the
crime, and (2) erroneous denial of his
motion to reopen the case for the reception
of his permit to possess the handgrenade.

Petitioner Rosita Flaminiano is hereby

held guilty of contempt of court for
disobeying the writ of injunction issued by
the Court of Appeals and accordingly
fined P20,000.00 therefor. Her counsel and
husband, Atty. Eduardo B. Flaminiano, is
ordered to pay a fine of P25,000.00 for
committing
contumacious
acts
unbecoming of a member of the
Philippine Bar with a stern warning that
a repetition of the same acts shall be dealt
with more severely. Let a copy of this
Decision be attached to his record at the
Office of the Bar Confidant.

petitioner was facing a criminal prosecution

for illegal possession of a handgrenade in
the court below. He claimed to be an agent
of the Philippine Constabulary with a permit
to possess explosives such as the
handgrenade in question. However, he found
himself in a situation where he had to make
a choice reveal his Identity as an
undercover agent of the Philippine
Constabulary
assigned
to
perform
intelligence work on subversive activities
and face possible reprisals or even
liquidation at the hands of the dissidents
considering that Floridablanca the site of the
incident, was in the heart of "Huklandia", or
ride on the hope of a possible exoneration or
acquittal based on insufficiency of the
evidence of the prosecution.

Jose v. CA

CA ruled affirming the findings of fact and

the judgment of conviction of the court a
quo, and declaring that no reversible error
was committed by the latter.

FACTS: Petitioner Lorenzo Jose who was

convicted of illegal possession of explosives
(handgrenade) and sentenced to suffer
imprisonment of five years, seeks a new trial
which was denied him by the Court.
petitioner Jose was arrested by the local
police leading to the filing with the Court of
First Instance of Pampanga, Branch III of
several criminal cases against him to wit:
illegal discharge of firearm (Crim. Case
6235), robbery (Crim. Case 6236) and

Forthwith, appellant Lorenzo Jose assisted

by counsel, Atty. Francisco Carreon, filed
with Us this petition for review which We
denied outright. The Solicitor General
opposed the granting of the foregoing
motion for reconsideration claiming that
there was neither a denial of "substantial
justice nor error of any sort on the part of
respondent Court of Appeals, affirming the
judgment of convinction," and that it being
admitted by petitioner that the evidence
17

sought to be introduced by him at the new

trial is not newly discovered evidence, the
denial of the new trial "visibly papers as
correct". This Opposition drew a lengthy
reply from petitioner's counsel.
a Manifestation was submitted by the
Solicitor General informing the Court that in
view of the " Persistence of accused
petitioner Lorenzo Jose both before this
Honorable Court and respondent Court of
Appeals as to his alleged existing
appointment as PC Agent and/or authority to
handgrenade," in the interest of justice, he
was constrained to make pertinent inquiries
from the PC Chief, Gen. Fidel V. Ramos
who in reply sent his letter.

We do not question the correctness of the

findings of the Court of Appeals that the
evidence sought to be presented by the
petitioner do not fall under the category of
newly-discovered evidence because the
same his alleged appointment as an agent
of the Philippine Constabulary and a permit
to possess a handgrenade were supposed
to be known to petitioner and existing at the
time of trial and not discovered only
thereafter.

HELD: YES. The failure of the Court of

Appeals to appreciate the merits of the
situation, involving as it does the liberty of
an individual, thereby closing its ear to a
plea that a miscarriage of justice be averted,
constitutes a grave abuse of discretion which
calls for relief from this Court.

Without revealing his Identity as an agent of

the Philippine Constabulary, he claimed
before the trial judge that he had a permit to
possess the handgrenade and prayed for time
to present the same. The permit however
could not be produced because it would
reveal his intelligence work activities. Came
the judgment of conviction and with it the
staggering
impact
of
a
five-year
imprisonment. The competent authorities
then realized that it was unjust for this man
to go to jail for a crime he had not
committed, hence, came the desired
evidence
concerning
petitioner's
appointment as a Philippine Constabulary
agent and his authority to possess a
handgrenade for the protection of his person,
but, it was too late according to the trial
court because in the meantime the accused
had perfected his appeal.

At the outset, We give due credit to the

Solicitor General and his staff for
upholding the time-honored principle set
forth in perspicuous terms by this Court
in Suarez vs. Platon, et al that a
prosecuting officer, as the representative
of a sovereignty whose obligation and
interest in a criminal prosecution is not
that it shall win a case but that justice
shall be done, has the solemn
responsibility to assure the public that
while guilt shall not escape, innocene shall
not suffer.

We find and hold that the above

circumstances justify a reopening of
petitioner's cas to afford him the opportunity
of producing exculpating exculpating
evidence. An outright acquittal from this
Court which petitioner seeks as an
alternative relief is not As correctly stressed
by the Solicitor General, the People is to be
given the chance of examining the
documentary sought to be produced, and of
cross-examining the persons who executed
the same, as well as the accused himself,
now petitioner, on his explanation for the

the Court resolved to set aside the denial of

this petition for review, to give due course
and consider the Petition as a special civil
action.
ISSUE: W/N the court acted with grave
abuse of discretion

18

non-production of the of the evidence during

the trial.

FAR EASTERN SHIPPING COMPANY

vs. COURT OF APPEALS
G.R. No. 130068 October 1, 1998

Facts:
M/V Pavlodar owned and operated by the
Far Eastern Shipping Company (FESC)
arrived at the port of Manila. SenenGavino
was assigned by the Manila Pilot's
Association (MPA) to conduct docking
manuevers for the safe berthing of the
vessel. Gavino stationed himself in the
bridge, with the master of the vessel, Victor
Kavankov, beside him.
When the vessel was already about 2000
feet from the pier, Gavino ordered the
anchor dropped. Kavankov relayed the
orders to the crew of the vessel. However
the anchor did not hold as expected. The
speed of the vessel did not slacken.
A commotion ensued between the crew
members. When Gavino inquired about the
commotion, Kavankov assured Gavino that
there was nothing to it.
The bow of the vessel rammed into the
apron of the pier causing considerable
damage to the pier. PPA filed a complaint for
a sum of money against FESC, Gavino and
MPA. CA ruled in favor of PPA holding
them liable with MPA (employer of
Kavankov) entitled to reimbursement from
Gavino.

Issue:
Are the counsels for the parties committed
acts which require the exercise of the court's
disciplinary powers?

Held:
YES. The records show that the law firm of
Del Rosario and Del Rosario thru its
associate, AttyTria, is the counsel of record
for FESC in both GR no 130068 and GR no
130150. GR 130068 which is assigned to the
Court's second division, commenced with
the filing of a verified motion for extension
of time which contained a certification
against forum shopping signed by counsel
Triastating that to the best of his knowledge
there is no action or proceeding pending in
the SC, CA or any other tribunal.
Reviewing the records, the court finds that
the petition filed by MPA in GR no, 130150
then pending with the third division was
duly filed with a copy thereof furnished by
registered mail to counsel for FESC
(attyTria). It would be fair to conclude that
when FESC filed its petition GR no 130068,
it would aready have received a copy of the
copy of the petition by MPA. It wa therefore
encumbent upon FESC to inform the court
of the pending action. But considering that it
was a superfluity at that stage of the
proceeding , it being unnecessary to file
such certification of non forum shopping
with a mere motion for extension, the court
disregarded such error.
On the other hand it took the OSG,
representing PPA, an ordinately and
unreasonably long period of time to file its
comment, thus unduly delaying the
resolution of these cases. In GR no 130068,
it took 210 days before the OSG filed its
comment. FESC was not even furnished
with a copy. In Gr no 130150 it took 180
days before comment was filed. This
disinclination of the OSG to seasonably file
required pleadings constitutes deplorable
disservice to the public and can only be
categorized as inefficiency on the part of the
govt law office.
19

Counsel for FESC, the law firm of Del

Rosario and Del Rosario, specifically its
asscociateTria is reprimaded and warned
that a repetition of the same acts shall be
dealt with severely.
The original members of the legal tean of
the OSG are admonished and warned tha a
repetition shall also be dealt with more
stringently.
Bakalangitanong kung ano ruling: The
decision of the CA is affirmed. Gavino,
MPA and FESC are declared solidarily liable
with MPA entitled to reimbursement from
Gavino for such amount of the adjudged
pecuniary liability in excess of the amount
equivalent to 75% of its prescribed reserved
fund.
G.R. No. 104599 March 11, 1994
JON DE YSASI III, petitioner,
vs.
NATIONAL
LABOR
RELATIONS
COMMISSION (FOURTH DIVISION),
CEBU CITY, and JON DE YSASI,
respondents.
FACTS:
Petitioner was employed by his father,
herein private respondent, as farm
administrator of Hacienda Manucao in
Hinigaran, Negros Occidental sometime in
April, 1980. Prior thereto, he was
successively employed as sales manager of
Triumph International (Phil.), Inc. and later
as operations manager of Top Form
Manufacturing (Phil.), Inc. His employment
as farm administrator was on a fixed salary,
with other allowances covering housing,
food, light, power, telephone, gasoline,
medical and dental expenses.

As farm administrator, petitioner was

responsible for the supervision of daily
activities and operations of the sugarcane
farm such as land preparation, planting,
weeding, fertilizing, harvesting, dealing with
third persons in all matters relating to the
hacienda and attending to such other tasks
as may be assigned to him by private
respondent. For this purpose, he lived on the
farm, occupying the upper floor of the house
there.
Following his marriage on June 6, 1982,
petitioner moved to Bacolod City with his
wife and commuted to work daily. He
suffered various ailments and was
hospitalized on two separate occasions in
June and August, 1982. In November, 1982,
he underwent fistulectomy, or the surgical
removal of the fistula, a deep sinuous ulcer.
During his recuperation which lasted over
four months, he was under the care of Dr.
Patricio Tan. In June, 1983, he was confined
for acute gastroenteritis and, thereafter, for
infectious hepatitis from December, 1983 to
January, 1984.
During the entire periods of petitioner's
illnesses, private respondent took care of his
medical expenses and petitioner continued
to receive compensation. However, in April,
1984, without due notice, private respondent
ceased to pay the latter's salary. Petitioner
made oral and written demands for an
explanation for the sudden withholding of
his salary from Atty. Apolonio Sumbingco,
private respondent's auditor and legal
adviser, as well as for the remittance of his
salary. Both demands, however, were not
acted upon.

20

ISSUE:
WON petitioner abandoned his work.
HELD:
No. It is submitted that the absences of
petitioner in his work from October 1982 to
December 1982, cannot be construed as
abandonment of work because he has a
justifiable excuse.
The elements of abandonment as a ground
for dismissal of an employee are as follows:
(1) failure to report for work
or absence without valid or
justifiable reason; and (2)
clear intention to sever the
employer-employee
tie
(Samson Alcantara, Reviewer
in
Labor
and
Social
Legislation, 1989 edition, p.
133).
This Honorable Court, in several cases,
illustrates what constitute abandonment. In
Dagupan Bus Company v. NLRC (191
SCRA 328), the Court rules that for
abandonment to arise, there must be a
concurrence of the intention to abandon and
some overt act from which it may be
inferred that the employee has no more

interest to work. Similarly, in Nueva Ecija I

Electric Cooperative, Inc. v. NLRC (184
SCRA 25), for abandonment to constitute a
valid cause for termination of employment,
there must be a deliberate, unjustified
refusal of the employee to resume his
employment. . . Mere absence is not
sufficient; it must be accompanied by overt
acts unerringly pointing to the fact that the
employee simply does not want to work
anymore.
There are significant indications in this case,
that there is no abandonment. First,
petitioner's absence and his decision to leave
his residence inside Hacienda Manucao, is
justified by his illness and strained family
relations. Second he has some medical
certificates to show his frail health. Third,
once able to work, petitioner wrote a letter
(Annex "J") informing private respondent of
his intention to assume again his
employment. Last, but not the least, he at
once instituted a complaint for illegal
dismissal when he realized he was unjustly
dismissed. All these are indications that
petitioner had no intention to abandon his
employment.

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