Disbarment; reinstatement to the Bar. - The basic inquiry in a petition for reinstatement to the practice of law is whether the lawyer has sufficiently rehabilitated himself or herself in conduct and character

CONRADO N. QUE vs. ATTY. ANASTACIO E. REVILLA, JR., A.C. No.7054, November 11, 2014

“x x x.

On May 17, 2012, the respondent sent a letter11 addressed to the Members of the Court En Banc once again reiterating his prayer to lift the order of disbarment. He alleged among others that for more than three years that he has been disbarred in the practice of law, he has never been involved in any immoral or illegal activities, has devoted himself in the services of St. Peter Parish and Shrine, Commonwealth Avenue as Eucharistic Minister leader, has conducted regular monthly lectures on the subject of marriage at the Diocese of Novaliches, and has participated as monthly financial contributor to Mr. Carmel Church, Lucena City. He also begged the Court to no longer prolong his penalty since it had already served its purpose. The plea was also denied on July 3, 2012.12

On August 30, 2012, the respondent once more prayed for his reinstatement professing repentance and remorse for what he did.13 He pleaded for the Court’s consideration, and vowed that he will no longer misuse the rules of procedure but instead, devote his time and energy for its proper observance and implementation. He also stated that for almost three years of being disbarred from the practice of law, he has never been involved in any unlawful, dishonest, and immoral activities. He promised to maintain at all times a high degree of legal proficiency, morality, integrity, and fair dealings to the courts, clients, and the legal profession in accordance with the values and morals embodied in the Code of Professional Responsibility.

X x x.

The respondent also pleads for clemency, not because he intends to practice law again, but to be made whole, to recover from being shattered, and to finally have peace of mind. He expressed his sincere repentance and deep remorse by taking full responsibility for his misdemeanor. He also prayed that his disbarment be lifted and that he be reinstated as a member of the Philippine bar. As part of his petition, he submitted a Medical Abstract18evidencing his diagnosis for chronic kidney disease, and a certification19 from St. Peter Parish, Commonwealth Avenue, Quezon City, proving that he and his family are dedicated parishioners.

X x x.

We deny the present appeal.

Membership in the Bar is a privilege burdened with conditions.20 It is not a natural, absolute or constitutional right granted to everyone who demands it, but rather, a special privilege granted and continued only to those who demonstrate special fitness inintellectual attainment and in moral character.21 The same reasoning applies to reinstatement of a disbarred lawyer. When exercising its inherent power to grant reinstatement, the Court should see to it that only those who establish their present moral fitness and knowledge of the law will be readmitted to the Bar. Thus, though the doors to the practice of law are never permanently closed on a disbarred attorney, the Court owes a duty to the legal profession as well as to the general public to ensure that if the doors are opened,it is done so only as a matter of justice.22

The basic inquiry in a petition for reinstatement to the practice of law is whether the lawyer has sufficiently rehabilitated himself or herself in conduct and character.23Whether the applicant shall be reinstated in the Roll of Attorneys rests to a great extent on the sound discretion of the Court.24 The lawyer has to demonstrate and prove by clear and convincing evidence that he or she is again worthy of membership in the Bar. The Court will take into consideration his or her character and standing prior to the disbarment, the nature and character of the charge/s for which he or she was disbarred, his or her conduct subsequent to the disbarment, and the time that has elapsed in between the disbarment and the application for reinstatement.25

In the present case, we note that before his admission to the Bar, the respondent had demonstrated an active involvement and participation in community and church activities by joining Youth For Christ, Catechism, and Bible Study and Sharing. Likewise, upon admission to the Bar, the respondent worked as Municipal Attorney in Sta. Cruz, Marinduque rendering free legal assistance to his townmates who were inneed of legal service. Thereafter, the respondentwas appointed as a Municipal Administrator and had continued extending assistance to the indigent residents.

The respondent also actively engaged and participated in various community projects, through the Marinduque Jaycees, where he served as President from 1980 to 1981, and the Integrated Bar of the Philippines Marinduque Chapter, where he served as a member, Director, and President from 1982 to 1987.

In his present appeal for judicial clemency, the respondent acknowledged his indiscretions and claimed to have taken full responsibility for his misdemeanor. Unlike in his previous petitions/appeal for judicial clemency, the respondent no longerquestioned the Court’s decision. According to him, he has long expressed deep remorse and genuine repentance.

The respondent also claimed that the long period of his disbarment gave him sufficient time to reflect on his professional conduct, to show remorse and repentance, and to realize the gravity of his mistakes. After his disbarment, the respondent continued lending assistance, and deviated his time and effort in pursuing civic and religious work that significantly contributed to his character reformation.He professed that during his almost five (5) years of disbarment, he has been an active member of the Couples for Christ, Marriage Encounter, and Knights of Columbus; and through his affiliations with these groups, he had served in the ecclesial affairs in his parish as an Extraordinary Minister for Holy Communion and a lecturer on Legal Aspect of Marriage Pre-Cana and Marriage Preparation Seminar at the Parish Church of St. Peter in Commonwealth Avenue, Quezon City.

Although the Court believes that the respondent is not inherently lacking in moral fiber as shown by his conduct prior to his disbarment, we are not convinced that he had sufficiently achieved moral reformation.

In Rodolfo M. Bernardo v. Atty. Ismael F. Mejia,26 the Court, in deciding whether or not to reinstate Atty. Mejia, considered that 15 years had already elapsed from the time hewas disbarred, which gave him sufficient time to acknowledge his infractions and to repent. The Court also took into account the fact that Atty. Mejiais already of advanced years, has long repented, and suffered enough. The Court also notedthat he had made a significant contribution by putting up the Mejia Law Journal containing his religious and social writings; and the religious organization named "El Cristo Movement and Crusade on Miracle of the Heart and Mind." Furthermore, the Court considered that Atty. Mejia committed no other transgressions since he was disbarred.

Similarly in Adez Realty, Inc. v. Court of Appeals,27 the Court granted the reinstatement of the disbarred lawyer (found to be guilty of intercalating a material fact in a CA decision) and considered the period of three (3) years as sufficient time to do soul-searching and to prove that he is worthy to practice law. In that case, the Court took into consideration the disbarred lawyer’s sincere admission of guilt and repeated pleas for compassion.

Also in Valencia v. Antiniw,28 the Court reinstated Atty. Antiniw (who was found guilty of malpractice in falsifying a notarized deed of sale and subsequently introducing the document in court) after considering the long period of his disbarment (almost 15 years). The Court considered that during Atty. Antiniw’s disbarment, he has been persistent in reiterating his apologies to the Court, has engaged inhumanitarian and civic services, and retained an unblemished record as an elected public servant, as shown by the testimonials of the numerous civic and professional organizations, government institutions, and members of the judiciary.

In all these cases, the Court considered the conduct of the disbarred attorney before and after his disbarment, the time that had elapsed from the disbarment and the application for reinstatement, and more importantly, the disbarred attorneys’ sincere realization and acknowledgement of guilt.

In the present case, we are not fully convinced that the passage of more than four (4) years is sufficient to enable the respondent to reflect and to realize his professional transgressions.

We emphasize that this is the second time that the respondent was accused and was found guilty of gross misconduct. The respondent, in an earlier case of Plus Builders, Inc. v. Atty. Anastacio E. Revilla,Jr.,29 was likewise found guilty of gross misconduct for committing willful and intentional falsehood before the court; misusing court procedure and processes to delay the execution of a judgment; and collaborating with nonlawyers in the illegal practice of law – mostly the same grounds on which the Decision dated December 4, 2009 (2nd disbarment) was based. In Plus Builders, we granted the respondent’s motion for reconsideration and reduced the penalty of suspension from the practice of law from two (2) years to six (6) months out of compassion to the respondent.

Considering the respondent’s earlier disbarment case(and subsequent reduction of the penalty imposed as an act of clemency), and another disbarment case against him still pending review by the Court, we are not fully and convincingly satisfied that the respondent has already reformed. The period of five (5) years is likewise not considerably long considering the nature and perversityof the respondent’s misdeeds. We believe that it is still early for the Court to consider the respondent’s reinstatement.

Furthermore, we are not persuaded by the respondent's sincerity in acknowledging his guilt. While he expressly stated in his appeal that he had taken full responsibility of his misdemeanor, his previous inclination to pass the blame to other individuals, to invoke self-denial, and to make alibis for his wrongdoings, contradicted his assertion. The respondent also failed to submit proof satisfactorily showing his contrition. He failed to establish by clear and convincing evidence that he is again worthy of membership in the legal profession. We thus entertain serious doubts that the respondent had completely reformed.

As a final word, while the Court sympathizes with the respondent's unfortunate physical condition, we stress that in considering his application for reinstatement to the practice of law, the duty of the Court is to determine whether he has established moral reformation and rehabilitation, disregarding its feeling of sympathy or pity. Surely at this point, this requirement was not met. Until such time when the respondent can demonstrate to the Court that he has completely rehabilitated himself and deserves to resume his membership in the Bar, Our decision to disbar him from the practice of law stands.

X x x.”

Disbarment; falsehood; misuse of court procedures; dilatory tactics; collaborating with non-lawyers

CONRADO N. QUE vs. ATTY. ANASTACIO E. REVILLA, JR., A.C. No.7054, November 11, 2014

“x x x.

Additionally, disbarment is merited because this is not the respondent’s 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 finis to the respondent’s professional legal career for the sake of the public, the profession and the interest of justice.

X x x.”

Professional misconduct

CONRADO N. QUE vs. ATTY. ANASTACIO E. REVILLA, JR., A.C. No.7054, November 11, 2014

“x x x.

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 respondent’s 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.

X x x.”

Compromise agreement

METRO MANILA SHOPPING MECCA CORP., SHOEMART, INC., SM PRIME HOLDINGS, INC., STAR APPLIANCES CENTER, SUPER VALUE, INC., ACE HARDWARE PHILIPPINES, INC., HEAL TH AND BEAUTY, INC., JOLLIMART PHILS. CORP., and SURPLUS MARKETING CORPORATION vs. MS. LIBERTY M. TOLEDO, in her official capacity as the City Treasurer of Manila, and THE CITY OF MANILA, G.R. No. 190818, November 10, 2014

 .

“x x x.

A compromise agreement is a contract whereby the parties, by making reciprocal concessions, avoid a litigation or put an end to one already commenced.8 It contemplates mutual concessions and mutual gains to avoid the expenses of litigation; or when litigation has already begun, to end it because of the uncertainty of the result.9 Its validity is dependent upon the fulfillment of the requisites and principles of contracts dictated by law; and its terms and conditions must not be contrary to law, morals, good customs, public policy, and public order.10 When given judicial approval, a compromise agreement becomes more than a contract binding upon the parties. Having been sanctioned by the court, it is entered as a determination of a controversy and has the force and effect of a judgment. It is immediately executory and not appealable, except for vices of consent or forgery. The nonfulfillment of its terms and conditions justifies the issuance of a writ of execution; in such an instance, execution becomes a ministerial duty of the court.11

A review of the whereas clauses12 of the UCA reveals the various court cases filed by petitioners, including this case, for the refund and/or issuance of tax credit covering the local business taxes payments they paid to respondent City of Manila pursuant to Section 21 of the latter’s Revenue Code.13 Thus, contrary to the submission of respondents, the local business taxes subject of the instant case is clearly covered by the UCA since they were also paid in accordance with the same provision of the Revenue Code of Manila.

In this relation, it is observed that the present case would have been rendered moot and academic had the parties informed the Court of the UCA’s supervening execution.14 Be that as it may, and considering that: (a) the UCA appears to have been executed in accordance with the requirements of a valid compromise agreement; (b) the UCA was executed more than a year prior to the promulgation of the subject Decision; and (c) the result of both the UCA and the subject Decision are practically identical, i.e., that petitioners are not entitled to any tax refund/credit, the Court herein resolves to approve and adopt the pertinent terms and conditions of the UCA insofar as they govern the settlement of the present dispute.

X x x.”

Land registration; notice of initial hearing; publication of notice

REPUBLIC OF THE PHILIPPINES vs. APOSTOLITA SAN MATEO, BRIGIDA TAPANG, ROSITA ACCION, and CELSO MERCADO, G.R. No. 203560, November 10, 2014

“x x x.

The trial court properly acquired jurisdiction over the case.

We find without error the CA’s characterization of the petition for registration as an action in rem, as well as its ruling on the petition’s compliance with the rules on notice and publication. The CA correctly held that the RTC properly acquired jurisdiction over the res, i.e. the subject property. As the CA found, the names of the owners of the adjoining lots were indicated in respondents’ Amended Petition on April 28, 1999, and these persons have been properly notified of the proceedings. Moreover, there was proper publication of the Notice of Initial Hearing, along with the technical description of the property. Given that this is an action in rem, the publication of the notice is sufficient notice to all claimants to the property.

The amendment of the technical description of the property, or the reduction of the area from 12,896 to 12,776 square meters, does not require a republication of the technical description, because the amended area was already included during the first publication. 

As this Court held in Republic v. CA and Heirs of Luis Ribaya:17

x x x only where the original survey plan is amended during the registration proceedings, by the addition of land not previously included in the original plan, should publication be made in order to confer jurisdiction on the court to order the registration of the area added after the publication of the original plan. Conversely, if the amendment does not involve an addition, but on the contrary, a reduction of the original area that was published, no new publication is required.

The amendment of the area was not a result of any substantial amendment in the property to be covered by the petition for registration, but was done merely to conform to the cadastral mapping of Taguig.18 Suffice it to say, therefore, that the amendment did not result in an addition of land not previously included in the original plan. Thus, no republication is necessary.

X x x.”

Alienable and disposable land; proofs of.

REPUBLIC OF THE PHILIPPINES vs. APOSTOLITA SAN MATEO, BRIGIDA TAPANG, ROSITA ACCION, and CELSO MERCADO, G.R. No. 203560, November 10, 2014

“x x x.

However, on the issue of whether the respondents were able to prove that the subject property is alienable and disposable, We find that the respondents failed to prove that the property sought to be registered is indeed alienable and thus subject to registration. Respondents merely relied on the certification of DENR-South CENRO to the effect that the subject property is alienable. But as discussed below, this is insufficient, as respondents failed to present any proof that the DENR Secretary approved such certification. We rule that the CA’s reliance solely on the DENR-South CENRO certification constitutes reversible error on its part.

Material to the resolution of this issue is this Court’s ruling in Republic v. T.A.N. Properties, Inc.,19 which, similar to the one at bar, is one for registration of property. There, the Court said:

x x x The CENRO certificate covered the entire Lot 10705 with an area of 596,116 square meters which, as per DAO No. 38, series of 1990, is beyond the authority of the CENRO to certify as alienable and disposable.

The Regional Technical Director, FMS-DENR, has no authority under DAO Nos. 20 and 38 to issue certificates of land classification. Under DAO No. 20, the Regional Technical Director, FMS-DENR:

1. Issues original and renewal of ordinary minor products (OM) permits except rattan;

2. Approves renewal of resaw/mini-sawmill permits;

3. Approves renewal of special use permits covering over five hectares for public infrastructure projects; and

4. Issues renewal of certificates ofregistration for logs, poles, piles, and lumber dealers.

Under DAO No. 38, the Regional Technical Director, FMSDENR:

1. Issues original and renewal of ordinary minor [products] (OM) permits except rattan;

2. Issues renewal of certificate ofregistration for logs, poles, and piles and lumber dealers;

3. Approves renewal of resaw/mini-sawmill permits;

4. Issues public gratuitous permits for 20 to 50 cubic meters within calamity declared areas for public infrastructure projects; and

5. Approves original and renewal of special use permits covering over five hectares for public infrastructure projects.

Hence, the certification issued by the Regional Technical Director, FMS-DENR, in the form of a memorandum to the trial court, has no probative value.

Further, it is not enough for the PENRO or CENRO to certify that a land is alienable and disposable. The applicant for land registration must prove that the DENR Secretary had approved the land classification and released the land of the public domain as alienable and disposable, and that the land subject of the application for registration falls within the approved area per verification through survey by the PENRO or CENRO. In addition, the applicant for land registration must present a copy of the original classification approved by the DENR Secretary and certified as a true copy by the legal custodian of the official records. These facts must be established to prove that the land is alienable and disposable. Respondent failed to do so because the certifications presented by respondent do not, by themselves, prove that the land is alienable and disposable.20 (emphasis supplied).

Clearly, therefore, a CENRO certification that a certain property is alienable, without the corresponding proof that the DENR Secretary had approved such certification, is insufficient to support a petition for registration of land. Both certification and approval are required to be presented as proofs that the land is alienable. Otherwise, the petition must be denied.

It is true, as cited by the respondent, that in Republic v. Vega,21 the Court granted a petition for registration even without the requisite DENR approval of the CENRO certification. There, as in this case, the registrant merely presented a CENRO certification that the land is alienable and disposable based on the evidence on record. The Court instead applied the rule on substantial compliance, and said:

Indeed, the best proofs in registration proceedings that a land is alienable and disposable are a certification from the CENRO or Provincial Environment and Natural Resources Office (PENRO) and a certified true copy of the DENR’s original classification of the land. The Court, however, has nonetheless recognized and affirmed applications for land registration on other substantial and convincing evidence duly presented without any opposition from the LRA or the DENR on the ground of substantial compliance.

Applying these precedents, the Court finds that despite the absence of a certification by the CENRO and a certified true copy of the original classification by the DENR Secretary, there has been substantial compliance with the requirement to show that the subject land is indeed alienable and disposable based on the evidence on record.22

The Court immediately made clear, however, that the ruling in Vega is pro hac vice, and is not to be considered an exception nor a departure from its ruling in T.A.N. Properties, which applied the rule on strict compliance with the rules. The Court clarified:

It must be emphasized that the present ruling on substantial compliance applies pro hac vice. It does not in any way detract from our rulings in Republic v. T.A.N. Properties, Inc., and similar cases which impose a strict requirement to prove that the public land is alienable and disposable, especially in this case when the Decisions of the lower court and the Court of Appeals were rendered prior to these rulings. To establish that the land subject of the application is alienable and disposable public land, the general rule remains: all applications for original registration under the Property Registration Decree must include both(1) a CENRO or PENRO certification and(2) a certified true copy of the original classification made by the DENR Secretary.

As an exception, however, the courts - in their sound discretion and based solely on the evidence presented on record - may approve the application, pro hac vice, on the ground of substantial compliance showing that there has been a positive act of government to show the nature and character of the land and an absence of effective opposition from the government. This exception shall only apply to applications for registration currently pending before the trial court prior to this Decision and shall be inapplicable to all future applications.23 (emphasis in the original, citations omitted)

In Vega, the Court was mindful of the fact that the trial court rendered its decision on November 13, 2003, way before the rule on strict compliance was laid down in T.A.N. Properties on June 26, 2008. Thus, the trial court was merely applying the rule prevailing at the time, which was substantial compliance. Thus, even if the case reached the Supreme Court after the promulgation of T.A.N. Properties, the Court allowed the application of substantial compliance, because there was no opportunity for the registrant to comply with the Court’s ruling in T.A.N. Properties, the trial court and the CA already having decided the case prior to the promulgation of T.A.N. Properties.

In the case here, however, the RTC Decision was only handed down on November 23, 2010, when the rule on strict compliance was already in effect. Thus, there was ample opportunity for the respondents to comply with the new rule, and present before the RTC evidence of the DENR Secretary's approval of the DENR-South CENRO Certification. This, they failed to do.

Respondents' invocation of the pro hac vice rule in Vega is severely misplaced. They would have this Court rule in their favor simply because the Republic failed to present countervailing evidence other than mere denials.24 Such is not the import of the Vega ruling. In Vega, aside from the certification from the CENRO, the registrants also presented other evidence that the land sought to be registered is alienable. Here, it is the DENR-South CENRO's certification that is the sole evidence presented by the respondents to prove the land's alienability. That, by itself, is not sufficient. Respondents cannot now claim that there is no sufficient evidence that the land is inalienable, when their own evidence on alienability is wanting.

X x x.”

Possession

REPUBLIC OF THE PHILIPPINES vs. APOSTOLITA SAN MATEO, BRIGIDA TAPANG, ROSITA ACCION, and CELSO MERCADO, G.R. No. 203560, November 10, 2014

“x x x.

Respondents have proved their possession of the subject property.

Finally, on the issue of possession, suffice it to say that We find that to be a question of fact, and thus, it is the trial court that is in the best position to evaluate whether the evidence presented by the respondents is sufficient to prove their claim of possession since 1948. We find no reversible error in the CA's affirmance of the RTC's reliance on the tax declarations presented by the respondents.

X x x.”

Best evidence rule; secondary evidence

MCMP CONSTRUCTION CORP.  vs. MONARK EQUIPMENT CORP., G.R. No. 201001, November 10, 2014

“x x x.

MCMP challenges the ruling of the CA arguing that the appellate court should have disallowed the presentation of secondary evidence to prove the existence of the Contract, following the Best Evidence Rule. MCMP specifically argues that based on the testimony of Peregrino, Monark did not diligently search for the original copy of the Contract as evidenced by the fact that: 1) the actual custodian of the document was not presented; 2) the alleged loss was not even reported to management or the police; and 3) Monark only searched for the original copy of the document for the purposes of the instant case.

Petitioner’s contention is erroneous.

The Best Evidence Rule, a basic postulate requiring the production of the original document whenever its contents are the subject of inquiry, is contained in Section 3 of Rule 130 ofthe Rules of Court which provides:

"Section 3. Original document must be produced; exceptions. — When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases:

(a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror;

(b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice;

(c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and

(d) When the original is a public record in the custody of a public officer or is recorded in a public office. (Emphasis supplied)"

Relative thereto, Sections 5 and 6 of Rule 130 provide the relevant rules on the presentation of secondary evidence to prove the contents of a lost document:

"Section 5. When original document is unavailable. — When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated. (4a)

Section 6. When original document is in adverse party's custody or control. — If the document is in the custody or under the control of adverse party, he must have reasonable notice to produce it. If after such notice and after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be presented as in the case of its loss."

In Country Bankers Insurance Corporation v. Lagman,11 the Court set down the requirements before a party may present secondary evidence to prove the contents of the original document whenever the original copy has been lost:

Before a party is allowed to adduce secondary evidence to prove the contents of the original, the offeror must prove the following: (1) the existence or due execution of the original; (2) the loss and destruction of the original or the reason for its non-production in court; and (3) on the part of the offeror, the absence of bad faith to which the unavailability of the original can be attributed. The correct order of proof is as follows: existence, execution, loss, and contents.

In the instant case, the CA correctly ruled that the above requisites are present. Both the CA and the RTC gave credence to the testimony of Peregrino that the original Contract in the possession of Monark has been lost and that diligent efforts were exerted to find the same but to no avail. Such testimony has remained uncontroverted. As has been repeatedly held by this Court, "findings offacts and assessment of credibility of witnesses are matters best left to the trial court."12 Hence, the Court will respect the evaluation of the trial court on the credibility of Peregrino.

MCMP, to note, contends that the Contract presented by Monark is not the contract that they entered into. Yet, it has failed to present a copy of the Contract even despite the request of the trial court for it to produce its copy of the Contract.13 Normal business practice dictates that MCMP should have asked for and retained a copy of their agreement. Thus, MCMP’s failure to present the same and even explain its failure, not only justifies the presentation by Monark of secondary evidence in accordance with Section 6 of Rule 130 of the Rules of Court, butit also gives rise to the disputable presumption adverse to MCMP under Section 3 (e) of Rule 131 of the Rules of Court that "evidence willfully suppressed would be adverse if produced."

X x x.”

Interest; penalty charge; attorney's fees.

MCMP CONSTRUCTION CORP.  vs. MONARK EQUIPMENT CORP., G.R. No. 201001, November 10, 2014

“x x x.

In Macalinao v. Bank of the Philippine Islands,15 the Court reduced the interest imposed by the bank of 36% for being excessive and unconscionable:

"x x x Nevertheless, it should be noted that this is not the first time that this Court has considered the interest rate of 36% per annum as excessive and unconscionable. We held in Chua vs. Timan:

The stipulated interest rates of 7% and 5% per month imposed on respondents’ loans must be equitably reduced to 1% per month or 12% per annum. We need not unsettle the principle we had affirmed in a plethora of cases that stipulated interest rates of 3% per month and higher are excessive, iniquitous, unconscionable and exorbitant. Such stipulations are void for being contrary to morals, if not against the law. While C.B. Circular No. 905-82, which took effect on January 1, 1983, effectively removed the ceiling on interest rates for both secured and unsecured loans, regardless of maturity, nothing in the said circular could possibly be read as granting carte blanche authority to lenders to raise interest rates to levels which would either enslave their borrowers or lead to a hemorrhaging of their assets. (Emphasis supplied.)

Since the stipulation on the interest rate is void, it is as if there was no express contract thereon. Hence, courts may reduce the interest rate as reason and equity demand.

The same is true with respect to the penalty charge. Notably, under the Terms and Conditions Governing the Issuance and Use of the BPI Credit Card, it was also stated therein that respondent BPI shall impose an additional penalty charge of 3% per month. 

Pertinently, Article 1229 of the Civil Code states:

Art. 1229. The judge shall equitably reduce the penalty when the principal obligation has been partly or irregularly complied with by the debtor. Even if there has been no performance, the penalty may also be reduced by the courts if it is iniquitous or unconscionable. In exercising this power to determine what is iniquitous and unconscionable, courts must consider the circumstances of each case since what may be iniquitous and unconscionable in one may be totally just and equitable in another."

In the more recent case of Pentacapital Investment Corporation v. Mahinay,16 the Court reduced the interest and penalties imposed in a contract as follows:

"Aside from the payment of the principal obligation of P1,936,800.00, the parties agreed that respondent pay interest at the rate of 25% from February 17, 1997 until fully paid. Such rate, however, is excessive and thus, void. Since the stipulation on the interest rate is void, it is as if there was no express contract thereon. To be sure, courts may reduce the interest rate as reason and equity demand. In this case, 12% interest is reasonable.

The promissory notes likewise required the payment of a penalty charge of 3% per month or 36% per annum. We find such rates unconscionable. This Court has recognized a penalty clause as an accessory obligation which the parties attach to a principal obligation for the purpose of ensuring the performance thereof by imposing on the debtor a special prestation (generallyconsisting of the payment of a sum of money) in case the obligation is not fulfilled or is irregularly or inadequately fulfilled. However, a penalty charge of 3% per month is unconscionable; hence, we reduce it to1% per month or 12% per annum, pursuant to Article 1229 of the Civil Code which states:

Art. 1229. The judge shall equitably reduce the penalty when the principal obligation has been partly or irregularly complied with by the debtor. Even if there has been no performance, the penalty may also be reduced by the courts if it is iniquitous or unconscionable.

Lastly, respondent promised to pay 25% of his outstanding obligations as attorney’s fees in case of non-payment thereof. Attorney’s fees here are in the nature of liquidated damages. As long as said stipulation does not contravene law, morals, or public order, it is strictly binding upon respondent. Nonetheless, courts are empowered to reduce such rate if the same is iniquitous or unconscionable pursuant to the above-quoted provision. This sentiment is echoed in Article 2227 of the Civil Code, to wit:

Art. 2227. Liquidated damages, whether intended as an indemnity or a penalty, shall be equitably reduced if they are iniquitous or unconscionable.

Hence, we reduce the stipulated attorney's fees from 25% to 10%."

Following the above principles previously laid down by the Court, the interest and penalty charges imposed upon MCMP must also be considered as iniquitous, unconscionable and, therefore, void. As such, the rates may validly be reduced. Thus, the interest rate of 24% per annum is hereby reduced to 12% per annum. Moreover, the interest shall start to accrue thirty (30) days after receipt of the second set of invoices on January 21, 2001, or March 1, 2001 in accordance with the provisions in the invoices themselves.

Additionally, the penalty and collection charge of 3% per month, or 36% per annum, is also reduced to 6% per annum. And the amount of attorney's fees is reduced from 25% of the total amount due to 5%.

X x x.”

TSN; transcript of stenographic notes: duty of stenographer

OFFICE OF THE COURT ADMINISTRATOR vs. ISABEL A. SIWA, Stenographer, Metropolitan Trial Court, Branch 16, Manila, A.M. No. P-13-3156 (Formerly A.M. OCA IPI No. 08-3012-P), EN BANC, November 11, 2014.

“x x x.

The Court adopts in toto the findings and recommendations of the OCA. Respondent Siwa had indeed failed to submit the subject TSNs assigned to her. Despite the adequate opportunity given to her, she still failed to air her side and refute the findings of the Investigating Judge.

Her failure to account for the TSNs amounts to Gross Neglect of Duty. In Absin v. Montalla,7 this Court held:

The Court has ruled, in a number of cases, that the failure to submit the TSNs within the period prescribed under Administrative Circular No. 24-90 constitutes gross neglect of duty. Gross neglect of duty is classified as a grave offense and punishable by dismissal even if for the first offense pursuant to Section 52(A)(2) of Rule IV of the Uniform Rules on Administrative Cases in the Civil Service.

x x x x

As a stenographer, Montalla should realize that the performance of his duty is essential to the prompt and proper administration of justice, and his inaction hampers the administration of justice and erodes public faith in the judiciary. The Court has expressed its dismay over the negligence and indifference of persons involved inthe administration of justice. No less than the Constitution mandates that public officers must serve the people with utmost respect and responsibility. Public office is a public trust, and Montalla has without a doubt violated this trust by his failure to execute his duty as a court stenographer.

WHEREFORE, we find respondent Edgardo A. Montalla, Stenographer, Regional Trial Court, Branch 29, San Miguel, Zamboanga del Sur, GUILTY of Gross Neglect of Duty. We DISMISS him from the service and FORFEIThis retirement benefits, except accrued leave credits. He is further disqualified from reemployment in the Judiciary. This judgment is immediately executory.

Absin is on all fours applicable. Here, it had been sufficiently established that despite the clear provision of Administrative Circular No. 24-90, respondent failed to submit and account for the TSNs assigned to her.

Respondent's infractions warrant the imposition of the penalty of dismissal from service, if not for the fact that she is already out of the service as a result of retirement. The Civil Service Commission's Memorandum Circular No. 30, Series of 1989,8 however, provides that "the penalty of dismissal shall carry with it that of cancellation of eligibility, forfeiture of leave credits and retirement benefits, and the disqualifications for re-employment in the government service." Hence, in line with present jurisprudence, in lieu of dismissal from service, we deem it proper to impose the penalty of forfeiture of her retirement benefits, except accrued leave credits.9

IN VIEW OF THE FOREGOING, the Court finds respondent Isabel A. Siwa, former Court Stenographer, Branch 16, Metropolitan Trial Court, City of Manila, GUILTY of Gross Neglect of Duty. In lieu of dismissal from service, which may no longer be imposed owing to her retirement, as a penalty for her offense, all her retirement benefits, except accrued leave credits, are hereby FORFEITED. She is further disqualified from any reemployment in any branch or instrumentality of the govermnent, including government-owned or controlled corporations and financial institutions. This judgment is immediately: executory.

X x x.”

Writ of execution; execution of judgment; sheriffs

FELICIANO O. FRANCIA vs. ROBERTO C. ESGUERRA, Sheriff IV, Regional Trial Court, Branch 14, Davao City, A.M. No. P-14-3272 [Formerly: OCA IPI No. 14-4264-P], November 11, 2014

“x x x.

The duties of sheriffs in the implementation of writs are explicitly laid down in Section 10, Rule 141 of the Rules of Court, as amended, which reads:

Sec. 10. Sheriffs, process servers and other persons serving processes. – x x x

x x x x

With regard to sheriff’s expenses in executing writs issued pursuant to court orders or decisions or safeguarding the property levied upon, attached or seized, including kilometrage for each kilometer of travel, guards’ fees, warehousing and similar charges, the interested party shall pay said expenses in anamount estimated by the sheriff, subject to approval of the court. Upon approval of said estimated expenses, the interested party shall deposit such amount with the clerk of court and ex-officio sheriff, who shall disburse the same to the deputy sheriff assigned to effect the process, subject to liquidation within the same period for rendering a return on the process. The liquidation shall be approved by the court. Any unspent amount shall be refunded to the party making the deposit. A full report shall be submitted by the deputy sheriff assigned with his return, the sheriff’s expenses shall be taxed as cost against the judgment debtor. (Emphasis supplied)

The aforesaid rule enumerated the steps to be followed in the payment and disbursement of fees for the execution of a writ, to wit: (1) the sheriff must prepare and submit to the court anestimate of the expenses he would incur; (2) the estimated expenses shall be subject to court approval; (3) the approved estimated expenses shall be deposited by the interested party with the Clerk of Court, who is also the ex-officio sheriff; (4) the Clerk of Court shall disburse the amount to the executing sheriff; (5) the executing sheriff shall thereafter liquidate his expenses within the same period for rendering a return on the writ; and (6) any amount unspent shall be returned to the person who made the deposit. It is clear from the enumeration that sheriffs are not authorized to receive direct payments from a winning party. Any amount to be paid for the execution ofthe writ should be deposited with the Clerk of Court and it would be the latter who shall release the amount to the executing sheriff. The amount deposited should be spent entirely for the execution only and any remainder of the amount should be returned.

Respondent sheriff acknowledged his receipt of the P3,000.00 from Feliciano and explained that it was for legal expenses. Other than his vague explanation, there was no accounting ofthe P3,000.00 he admitted to have received. In fact, there was also no showing that a liquidation was prepared and submitted to the court as required under the rules.

Even if Feliciano was amenable to the amount requested or that the money was given voluntarily, such would not absolve respondent sheriff from liability because of his failure to secure the court’s prior approval. We held in Bernabe v. Eguia8 that acceptance of any other amount is improper, even if it were to be applied for lawful purposes. Good faith on the part of the sheriff, or lack of it, in proceeding to properly execute its mandate would be of no moment, for he is chargeable with the knowledge that being the officer of the court tasked therefore, it behooves him to make due compliances. In the implementation of the writ of execution, only the payment of sheriff’s fees may be received by sheriffs. They are not allowed to receive any voluntary payments from parties in the course of the performance of their duties. To do so would be inimical to the best interests of the service because even assuming arguendo that such payments were indeed given and received in good faith,this fact alone would not dispel the suspicion that such payments were made for less than noble purposes. In fact, even "reasonableness" of the amounts charged, collected and received by the sheriff is not a defense where the procedure laid down in Section 10, Rule 141 of the Rules of Court has been clearly ignored.

The rules on sheriff’s expenses are clear-cut and do not provide procedural shortcuts. A sheriff cannot just unilaterally demand sums of money from a party-litigant without observing the proper procedural steps otherwise, it would amount to dishonesty and extortion9 . And any amount received in violation of Section 10,Rule 141 of the Rules of Court constitutes unauthorized fees. Respondent sheriff is charged with neglect of duty. In the implementation of writs, sheriffs are mandated to follow the procedure under Section 14, Rule 39 of the Rules, which reads:

SEC. 14. Return of writ of execution. – The writ of execution shall be returnable to the court issuing itimmediately after the judgment has been satisfied in part or in full. Ifthe judgment cannot be satisfied in full within thirty (30) days after his receipt of the writ, the officer shall report to the court and state the reason therefore. Such writ shall continue in effect during the period within which the judgment may be enforced by motion. The officer shall make a report to the court every thirty (30) days on the proceedings taken thereon until the judgment is satisfied in full, or its effectivity expires. The returns or periodic reports shall set forth the whole of the proceedings taken, and shall be filed with the court and copies thereof promptly furnished the parties. Respondent sheriff would want us to believe that his failure to implement the writ was brought about by circumstances beyond his control. He maintained that the defendants wereadamant in staying in the subject property. Thus, he had to seek police assistance which he obtained only after several months of waiting. Respondent sheriff further alleged that he thereafter waited for Feliciano to appear before him so that he could proceed with the implementation of the writ.

We find respondent sheriff’s contention untenable. His being remiss in his duties was underscored by the fact that a year had passed without the writ being implemented. If his contention was true, then he could have still complied with his duty by making a return on the writ within 30 days from his receipt thereof and submitting periodic reports every 30 days thereafter until it was satisfied in full. Respondentsheriff failed in accomplishing any of these. We held in Mendoza v. Tuquero10 that sheriffs have no discretion on whether or not to implement a writ. There is no need for the litigants to "follow-up" its implementation. When writs are placed in their hands, it is their ministerial duty to proceed with reasonable celerity and promptness to execute them in accordance with their mandate. Unless restrained by a court order, they should see to it that the execution of judgments is not unduly delayed.11 Respondent sheriff’s failure to implement the writ gives rise to presumption that he was waiting for additional financial consideration from Feliciano or that he has already received a bribe from the losing party to stall the writ’s implementation. We have previously ruled that failure of the sheriff to carry out what is a purely ministerial duty, to follow wellestablished rules in the implementation of court orders and writs, to promptly undertake the execution ofjudgments, and to accomplish the required periodic reports, constitute gross neglect and gross inefficiency in the performance of official duties.12 Records reveal that this is not the first offense of respondent sheriff. In A.M. No. P-07-2370 dated 14 September 2007, he was suspended by the Court for one (1) month for dereliction of duty. Records further reveal that another charge of neglect of duty (OCA IPI No. 12-3880-P) is pending before the Legal Office, OCA.13

As a final note, it cannot be over-emphasized that sheriffs are ranking officers of the court. They play an important part in the administration of justice – execution being the fruit and end of the suit, and the life of the law. In view of their exalted position as keepers of the faith, their conduct should be geared towards maintaining the prestige and integrity of the court.14 Respondent sheriff failed to live up to this standard. It is evident that he never learned from his previous infraction. Having tarnished the good image of the judiciary, he should not be allowed to stay a minute longer in the service.

WHEREFORE, we find respondent Roberto C. Esguerra, Sheriff IV, Regional Trial Court, Branch 14, Davao City GUILTY of dishonesty, gross neglect of duty and gross inefficiency in the performance of official duties. Accordingly, he is DISMISSED from the service, with forfeiture of all his retirement benefits, except accrued leave credits, if any, and with prejudice to re-employment in any branch or instrumentality of the government, including government-owned or controlled corporations.

SO ORDERED.

 X x x.”

Demurrer to evidence

ESTHER P. MAGLEO vs. PRESIDING JUDGE ROWENA DE JUAN-QUINAGORAN and BRANCH CLERK OF COURT ATTY. ADONIS LAURE, BOTH OF BRANCH 166, REGIONAL TRIAL COURT, PASIG CITY, A.M. No. RTJ-12-2336 (Formerly A.M. OCA-IPl No. 11-3695-RTJ), November 12, 2014

“x x x.

Complainant asserts that respondent judge committed gross ignorance of the law and evident partiality when she overturned the order granting the demurrer to evidence because it would constitute as a violation to her constitutional right against double jeopardy. Complainant argues that a dismissal due to such order is considered as acquittal which bars a subsequent opening of the criminal case.

This Court is convinced that respondent judge acted in accordance with the law and jurisprudence. It was the February 2, 2011 Omnibus Order  which elucidated the clear legal basis why respondent judge continued the criminal case despite the earlier order granting the demurrer to evidence.  Generally, if the trial court finds that the prosecution evidence is not sufficient and grants the accused's Demurrer to Evidence, the ruling is an adjudication on the merits of the case which is tantamount to an acquittal and may no longer be appealed.

The current scenario, however, is an exception to the general rule. The demurrer to evidence was premature because it was filed before the prosecution rested its case. The RTC had not yet ruled on the admissibility of the formal offer of evidence of the prosecution when complainant filed her demurrer to evidence. Hence, respondent judge had legal basis to overturn the order granting the demurrer to evidence as there was no proper acquittal. The complainant elevated the matter to the CA via a petition for certiorari but it sustained her ruling. The CA decision reads:

Indubitably, an order granting an accused’s demurrer to evidence is a resolution of the case on the merits, and it amounts to an acquittal. Generally, any further prosecution of the accused after an acquittal would violate the constitutional proscription on double jeopardy. To this general rule, however, the Court has previously made some exceptions.

People v. Tan eruditely instructs that double jeopardy will not attach when the trial court acted with grave abuse of discretion amounting to lack or excess of jurisdiction, such as where the prosecution was denied the opportunity to present its case or where the trial was a sham. In addition, in People v. Bocar,32 this Court rule that there is no double jeopardy when the prosecution was not allowed to complete its presentation of evidence by the trial court.

The circumstances obtaining in this controversy placed it within the realm of the exception.

The records demonstrate that the prosecution, with respondent Oilink International Corporation as private complainant, had not yet rested its case when the Demurrer to Evidence was filed and eventually granted by the RTC Branch 161.

x x x x

The RTC Branch 161 should have ruled on the prosecution’s Formal Offer of Evidence before acting on petitioner’s Demurrer to Evidence. Having failed to do so, there is nary a doubt that no double jeopardy attached. Petitioner’s blind insistence that she is made to face trial after having been acquitted carries no conviction.

Though the CA decision has not reached finality, it only goes to show that the respondent judge acted in good faith as she merely followed precedents.

X x x.”