Republic of the PhilippinesSUPREME COURTManilaEN BANCG.R. No. L-9231 January 6, 1915UY CHICO,plaintiff-appellant,vs.THE UNION LIFE ASSURANCE SOCIETY, LIMITED, ET AL.,defendants-appellees.Beaumont and Tenney for appellant.Bruce, Lawrence, Ross and Block for appellees.TRENT,J.:An appeal from a judgment dismissing the complaint upon the merits, with costs.The plaintiff seeks to recover the face value of two insurance policies upon a stock of dry goods destroyed by fire. It appears that the father of the plaintiff died in 1897, at which time he was conducting a business under his own name, UyLayco. The plaintiff and his brother took over the business and continued it under the same name, "UyLayco." Sometime before the date of the fire, the plaintiff purchased his brother's interest in the business and continued to carry on the business under the father's name. At the time of the fire "UyLayco" was heavily indebted and subsequent thereto the creditors of the estate of the plaintiff's father. During the course of these proceedings, the plaintiff's attorney surrendered the policies of insurance to the administrator of the estate, who compromised with the insurance company for one-half their face value, or P6,000. This money was paid into court and is now being held by the sheriff. The plaintiff now brings this action, maintaining that the policies and goods insured belonged to him and not to the estate of his deceased father and alleges that he is not bound by the compromise effected by the administrator of his father's estate.The defendant insurance company sought to show that the plaintiff had agreed to compromise settlement of the policies, and for that purpose introduced evidence showing that the plaintiff's attorney had surrendered the policies to the administrator with the understanding that such a compromise was to be effected. The plaintiff was asked, while on the witness stand, if he had any objection to his attorney's testifying concerning the surrender of the policies, to which he replied in the negative. The attorney was then called for that purpose. Whereupon, counsel for the plaintiff formally withdrew the waiver previously given by the plaintiff and objected to the testimony of the attorney on the ground that it was privileged. Counsel, on this appeal, base their argument of the proposition that a waiver of the client's privilege may be withdrawn at any time before acted upon, and cite in support thereof Ross vs. Great Northern Ry. Co., (101 Minn., 122; 111 N. W., 951). The case of Natlee Draft Horse Co. vs. Cripe and Co. (142 Ky., 810), also appears to sustain their contention. But a preliminary question suggest itself, Was the testimony in question privileged?Our practice Act provides: "A lawyer must strictly maintain inviolate the confidence and preserve the secrets of his client. He shall not be permitted in any court, without the consent of his client, given in open court, to testify to any facts imparted to him by his client in professional consultation, or for the purpose of obtaining advice upon legal matters." (Sec. 31, Act No. 190.)A similar provision is inserted in section 383, No. 4, of the same Act. It will be noted that the evidence in question concerned the dealings of the plaintiff's attorney with a third person. Of the very essence of the veil of secrecy which surrounds communications made between attorney and client, is that such communications are not intended for the information of third persons or to be acted upon by them, put of the purpose of advising the client as to his rights. It is evident that a communication made by a client to his attorney for the express purpose of its being communicated to a third person is essentially inconsistent with the confidential relation. When the attorney has faithfully carried out his instructions be delivering the communication to the third person for whom it was intended and the latter acts upon it, it cannot, by any reasoning whatever, be classified in a legal sense as a privileged communication between the attorney and his client. It is plain that such a communication, after reaching the party for whom it was intended at least, is a communication between the client and a third person, and that the attorney simply occupies the role of intermediary or agent. We quote from but one case among the many which may be found upon the point:The proposition advanced by the respondent and adopted by the trial court, that one, after fully authorizing his attorney, as his agent, to enter into contract with a third party, and after such authority has been executed and relied on, may effectively nullify his own and his duly authorized agent's act by closing the attorney's mouth as to the giving of such authority, is most startling. A perilous facility of fraud and wrong, both upon the attorney and the third party, would result. The attorney who, on his client's authority, contracts in his behalf, pledges his reputation and integrity that he binds his client. The third party may well rely on the assurance of a reputable lawyer that he has authority in fact, though such assurance be given only by implication from the doing of the act itself. It is with gratification, therefore, that we find overwhelming weight of authority, against the position assumed by the court below, both in states where the privilege protecting communications with attorneys is still regulated by the common law and in those where it is controlled by statute, as in Wisconsin. (Koeber vs. Sommers, 108 Wis., 497; 52 L. R. A., 512.)Other cases wherein the objection to such evidence on the ground of privilege has been overruled are: Henderson vs. Terry (62 Tex., 281); Shove vs. Martin (85 Minn., 29);In reElliott (73 Kan., 151); Collins vs. Hoffman (62 Wash., 278); Gerhardt vs. Tucker (187 Mo., 46). These cases cover a variety of communications made by an authority in behalf of his client to third persons. And cases wherein evidence of the attorney as to compromises entered into by him on behalf of his client were allowed to be proved by the attorney's testimony are not wanting. (Williams vs. Blumenthal, 27 Wash., 24; Koeber vs. Sommers,supra.)It is manifest that the objection to the testimony of the plaintiff's attorney as to his authority to compromise was properly overruled. The testimony was to the effect that when the attorney delivered the policies to the administrator, he understood that there was a compromise to be effected, and that when he informed the plaintiff of the surrender of the policies for that purpose the plaintiff made no objection whatever. The evidence is sufficient to show that the plaintiff acquiesced in the compromise settlement of the policies. Having agreed to the compromise, he cannot now disavow it and maintain an action for the recovery of their face value.For the foregoing reasons the judgment appealed from is affirmed, with costs. So ordered.Republic of the PhilippinesSUPREME COURTManilaEN BANCG.R. No. L-41957 August 28, 1937THE PEOPLE OF THE PHILIPPINES,plaintiff-appellee,vs.SANTIAGO SY JUCO,defendant.TEOPISTO B. REMO,petitioner-appellant.Laurel, Del Rosario and Sabido for appellant.Office of the Solicitor-General for appellee.DIAZ,J.:Upon petition of the agent and representatives of the Bureau of Internal Revenue, named NarcisoMendiola, who alleged that, according to information given him by a person whom he considered reliable, certain fraudulent bookletters and papers or records were being kept in the building marked No. 482 on Juan Luna Street, Binondo, Manila, occupied by Santiago SyJuco, a warrant to search the building in question was issued against said person on March 7, 1933, by the Court of First Instance of Manila, through Judge Mariano A. Albert. In said warrant, the peace officers to whom it was directed for execution were required to seize the above-stated articles for the purpose of delivering them to the court, for the proper action to be taken in due time. After making the required search the officers concerned seized, among things, an art metal filing cabinet claimed by Attorney Teopisto B. Remo to be his and to contain some letters, documents and papers belonging to his clients. Inasmuch as said officers later refused to return the filing cabinet in question to him, he filed a petition in the Court of First Instance of Manila, praying that the Collector of Internal Revenue and his agents be prohibited from opening said art metal filing cabinet and that the sheriff of the City of Manila likewise be ordered to take charge of said property in the meantime, on the ground that the warrant by virtue of which the search was made is null and void, being illegal and against the Constitution. A similar petition was later filed in the same case by the Salakan Lumber Co., Inc., the same agents of the Bureau of Internal Revenue having also seized some books belonging to it by virtue of the above-mentioned search warrant.After due hearing, the Court of First Instance through Judge DelfinJaranilla, decided to overrule both petitions, declaring that the art metal filing cabinet and the books and papers claimed by the Salakan Lumber Co., Inc., would be returned to Attorney Teopisto B. Remo and to the company, respectively, as soon as it be proven, by means of an examination thereof to be made in the presence of the interested parties, that they contain nothing showing that they have been used to commit fraud against the Government. Only Attorney Teopisto B. Remo appealed from the decision of the court and he now contends that it committed the nine errors assigned by him as follows:1. The lower court erred in not holding that the search warrant, Exhibit B, issued in the case at bar is unconstitutional and voidab initioand hence can confer no legal right upon the Government to seize, much less to retain or open the filing cabinet in question, Exhibit 3.2. The lower court erred in not holding that the search warrant, which is voidab initiomay not be legalized by evidence secured subsequent to the issuance, or in consequence, of said illegal search warrant.3. The lower court erred in not holding that the doctrine of the case ofPeople vs. Rubio(G. R. No. 35500, 57 Phil., 384), is not applicable to the case at bar.4. The lower court erred in not holding that the search warrant, Exhibit B, was procured in order to obtain evidence against the defendant Santiago SyJuco.5. The lower court erred in not holding that the search warrant, Exhibit B, was issued solely against the premised occupied by the defendant Santiago SyJuco, and hence cannot be used against the premises occupied by a stranger, or the petitioner, Teopisto B. Remo.6. The lower court erred in not holding that the filing cabinet, Exhibit 3, is the personal property of the petitioner, Teopisto B. Remo, and not of the defendant Santiago SyJuco.7. The lower court erred in not upholding the inviolability of the contents of the filing cabinet, Exhibit 3, the same being confidential documents entrusted to the herein petitioner, Attorney Teopisto B. Remo, by his clients, in his professional capacity and in connection with cases pending before the courts of justice and administrative tribunals.8. The lower court erred in not holding that the Internal Revenue agents gave infringed the penal laws not only by procuring the search warrant, Exhibit B, against the premises of the defendant, Santiago SyJuco, without just cause, but also by exceeding their authority in enforcing said search warrant against the premises of the petitioner, Teopisto B. Remo, who is stranger to said search warrant, which acts also constitute a violation of the domicile of said petitioner; and in not endorsing the matter to the city fiscal for proper action.9. The lower court erred in not ordering the return of the filing cabinet, Exhibit 3, intact and unopened, to its lawful owner, the petitioner Teopisto B. Remo.The pertinent part of the search warrant in question was couched in the following language:Proof by affidavit having this day been made before me, Mariano Albert, Judge of the Court of First Instance of the City of Manila, Philippine Islands, by the complainant on oath of NarcisoMendiola, special investigator, Bureau of Internal Revenue, Manila, that the defendant, Santiago SyJuco, of No. 482 Juan Luna, Manila, keeps illegally and feloniously fraudulent books, correspondence, and records and that he verily believes upon probable cause that the said books, correspondence and records at No. 482 Juan Luna, Manila, and the said (personal) property is now being used in the commission of fraud of the revenue of the Government.You are therefore commanded to take with you the necessary and proper assistance and to enter, in the daytime, into the said premises and there diligently search for fraudulent books, correspondence and records and that you seize and bring them before the court to be disposed of according to law.Given under my hands this 7th day of March, 1933, in the City of Manila.[SEAL] (Sgd.) MARIANO A. ALBERTJudge of Court of First instance of ManilaThe affidavit or deposition referred to in the warrant above-quoted contained the following questions and answers:TESTIMONY TAKEN BEFORE HON. JUDGE MARIANO A. ALBERT, NarcisoMendiola, being duly sworn, testifies as follows:Q. What is your name, residence and occupation? A. NarcisoMendiola, special investigator, Bureau of Internal Revenue, Manila.Q. Are you the applicant for this search warrant? A. Yes, sir.Q. do you know the premises situated at No. 482 Juan Luna, Manila? A. Yes, sir.Q. Do you know who occupy said premises? A. According to the best of my information, the house is occupied by Santiago SyJuco.Q. What are your reasons for applying for a search warrant? A. It has been reported to us by person whom I considered reliable that in said premises are fraudulent books, correspondence and records.I. NarcisoMendiola, being duly sworn, depose and say that I have read the foregoing questions and answers and that I found the same to be correct and true to the best of my knowledge and belief.(Sgd.) NARCISCO MENDIOLA.Subscribed and sworn to before me this 7th day of March, 1933, in the City of Manila, P. I.[SEAL] (Sgd.) MARIANO A. ALBERTJudge, Court of First Instance, ManilaIt appears clear to this court that the question that the appellant wishes to raise by means of the allege errors attributed by him to the lower court, may be reduced to the following:1. Is the search warrant in question valid or not, taking into consideration the provisions of the law and of the Constitution relative thereto?2. Does the art metal filing cabinet seized by the agents of the Bureau of Internal Revenue belong to Santiago SyJuco or to Teopisto B. Remo?3. Could the search warrant in question affect Attorney Teopisto B. Remo, not being the person against whom it was directed?4. Had the court authority to order the opening of the cabinet in question for the purpose of determining, by an examination of the books, documents and records contained therein, whether or not same were used to commit fraud against the Government?1. A question which is very similar to the first one herein raised by the appellant, has been decided by this court in the negative in its judgment rendered in the case ofAlvarez vs. Court of First Instance of Tayabas and Anti Usury Board, p. 33,ante. According to our laws in force on the date in question, which do not differ substantially from the provisions of the Constitution of the Commonwealth in matters regarding search, in order that a search warrant may be valid, the following requisites, among others, must be present: That the application upon which it is issued be supported by oath; That the search warrant particularly describes not only place to be searched but also the person or thing to be seized and that there be probable cause (sec. 97, General Orders, No. 58: sec. 3, Jones Law; Article III, sec. 1, paragraph 3, Constitution of the Commonwealth).In the above-cited case ofAlvarez vs. Court of First Instance of Tayabas and Anti-Usury Board, supra, and in that of United Statesvs.Addison (28 Phil., 566), this court held that the oath required must be such that it constitutes a guaranty that the person taking it has personal knowledge of the facts of the case and that it convince the committing magistrate, not the individual seeking the issuance of the warrant or the person making the averment by hearsay, of the existence of the requisite of probable cause. It has likewise been held by this court that by probable cause are meant such facts and circumstances antecedent to the issuance thereof. It has furthermore been held that the true test of the sufficiency of an affidavit to warrant issuance of a search warrant is whether it has been drawn in such a manner that perjury could be charged thereon in case the allegations contained therein prove false (Sate vs. Roosevelt, 244 Pac., 280), and that the provisions of the Constitution and the statutes relative to asearches and seizures must be construed liberally in favor of the individual who may be affected thereby, and strictly against the State and against the person invoking them for the issuance of the warrant ordering their execution (Elardo vs. State of Misissippi, 145 So., 615; Fowler vs. U. S., 62 Fed. [2d], 656; Saforik vs. U. S. Feed.[2d], 892; Boyd vs. U. S., 116 U. S., 616; 29 Law. ed., 746), for the simple reason that the proceedings of search and seizure are, by their very nature, summary and drastic ones (Alvarez vs. Court of First Instance of Tayabas and Anti-Usury Board,supra, and the authorities cited therein).By reading the affidavit which gave rise to the issuance of the search warrant in question, it will be seen that the latter does not fulfill the necessary conditions in support of its validity. In the first place, it is not stated in said affidavit that the books, documents or records referred to therein are being used or are intended to be used in the commission of fraud against the Government and, notwithstanding the lack of such allegation, the warrant avers that they are actually being used for such purpose. In the second place, it assumes that the entire building marked No. 482 on Juan Luna Street is occupied by Santiago SyJuco against whom the warrant was exclusively issued, when the only ground upon which such assumption is based is NarcisoMendiola's statement which is mere hearsay and when in fact part thereof was occupied by the appellant. In the third place, it was not asked that the things belonging to the appellant and to others also be searched. In otherwords, the warrant in question has gone beyond what had been applied for by NarcisoMendiola and the agent who executed it performed acts not authorized by the warrant, and it is for this and the above-stated reason why it is unreasonable, it being evidence that the purpose thereof was solely to fish for evidence or search for it by exploration, in case some could be found. It is of common knowledge that search warrants have not been designed for such purpose (Gouled vs. U. S., 255 U. S., 298, S. C. R., 65 Law. ed., 647; UyKheytin vs. Villareal, 42 Phil., 886) much less in a case as the one under consideration where it has not even been alleged in the affidavit of NarcisoMendiola what crime had been committed by Santiago SyJuco or what crime he was about commit. On this point said affidavit merely contained the following allegation: "It has been reported to us by a person whom I considered reliable that in said premises are fraudulent books, correspondence and records." Therefore, the first question raised should be decided in the negative.2. The resolution of the second question depends entirely on the nature of the evidence presented and the relative preponderance thereof. The only witness who testified that the art metal filing cabinet belongs to the accused Santiago SyJuco, is Macario Garcia. Against Garcia's testimony, we certainly have that of the appellant himself and his witnesses Rufino C. Wenceslao, Vicente del Rosario, Jose Jeuquenco and Feliciano Belmonte, besides Exhibits E, F, G, H and L, which conclusively proves that the furniture in question was purchased by said appellant at the beginning of January, 1933, and that he had it precisely in a room on one of the upper floors of building No. 482 on Juan Luna Street, which he was then subleasing from Santiago SyJuco, to keep his records and those of his clients. On the otherhand, it is unimportant now to determine whether the furniture in question belongs to Santiago SyJuco or to the appellant Attorney Topisto B. Remo. It should have been alleged at the time he applied for the issuance of the search warrant, to show with the other allegations, reason and evidence that the issuance thereof was justified because of the existence ofprobable cause, the latter being a requisite without which the issuance of the judicial warrant authorizing such search would be unwarranted. For these reasons, this court concludes that the second question raised calls for an answer in the negative.3. After the considerations just made, the third question cannot be resolved except in the negative. The search warrant in question could not and should not in any way affect the appellant attorney on the ground that he is not the person against whom it had been sought. It is Santiago SyJuco alone against whom the search warrant could be used, because it had been obtained precisely against him; so much so that NarcisoMendiola, who applied for it, mentioned him expressly in his affidavit and again did so in his report to his superior, that is, the Collector of Internal Revenue (Exhibit C); and at the trial of this case, it was insisted that there was necessity of making the search in the premises occupied by Santiago SyJuco because an investigation was then pending against him, for having defrauded the Government in its public revenue. The doctrine laid down in the case ofPeople vs. Rubio(57 Phil., 384), invoked against the appellant, is not applicable to the case at bar because, unlike in the above-cited case, neither books nor record indicating fraud were found in his possession, and it is not he against whom the warrant was issued.4. It is clear that the court could not and can not order the opening of the art metal filing cabinet in question because, it having been proven that it belongs to the appellant attorney and that in it he keeps the records and documents of his clients, to do so would be in violation of his right as such attorney, since it would be tantamount to compelling him to disclose or divulge facts or things belonging to his clients, which should be kept secret, unless she is authorized by them to make such disclosure, it being a duty imposed by law upon an attorney to strictly preserve the secrets or communications made to him. Such an act would constitute a qualified violation of section 383, No. 4, and of section 31 of Act No. 190, which read as follows:An attorney can not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment; nor can an attorney's secretary stenographer, or clerk be examined, without the consent of client and his employer, concerning any fact, the knowledge of which has been acquired in such capacity. (Sec. 383, No. 4, Act No. 190.)A lawyer must strictly maintain inviolate the confidence and preserve the secrets of his client. He shall not be permitted in any court without the consent of his client, given in open court, to testify to any facts imparted to him by his client in professional consultation, or for the purpose of obtaining advice upon legal matters. (Sec. 31, Act No. 190.)For all the foregoing reasons, and finding that the errors assigned by the appellant are very well founded, the appealed judgment is reversed, and it is ordered that the art metal filing cabinet, together with the key thereof seized by the internal revenue agent by virtue of the judicial warrant in question, which is hereby declared null and void, be immediately returned unopened to the appellant; and that a copy of this decision be sent to the Solicitor-General for him to take action, if he deems it justified, upon careful investigation of the facts, against the internal revenue agent or agents who obtained and executed the warrant in question, in accordance with the provisions of article 129 of the Revised Penal Code, without special pronouncement as to costs. So ordered.Republic of the PhilippinesSUPREME COURTManilaFIRST DIVISIONG.R. No. L-35830 July 24, 1990FORTUNATA MERCADO, BASILIA CUEVAS MERCADO, SOTERA MERCADO and TRINIDAD MERCADO,petitioners,vs.Hon. ALBERTO Q. UBAY as Presiding Judge of the Court of First Instance of Rizal, Branch XXXII, LUCINA SAMONTE and TRINIDAD M. SAMONTE,respondents.Gregorio M. Familiar for petitioners.Alfredo I. Molo for private respondents.MEDIALDEA,J.:This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of Court with a prayer for the issuance of a writ of preliminary injunction. Petitioners seek to enjoin and restrain respondent judge from further proceeding with Civil Case No.C-2442 in the Court of First Instance of Rizal (now Regional Trial Court) on the ground of lack of jurisdiction to annul a final and executory judgment rendered by the Court of First Instance of Cavite (now Regional Trial Court) in Civil Case No. TM-223.The antecedent facts are as follows:On May 18, 1966, petitioners filed an action for partition with the Court of First Instance of Cavite, Branch I, docketed as Civil Case No. TM-223, against Antonio, Ely and respondents Lucina and Trinidad, all surnamed Samonte and who are brothers and sisters.On June 27, 1966, the defendants were served with a copy of the complaint and summons thru their co-defendant Antonio Samonte who acknowledged receipt thereof.On July 11, 1966, all the defendants in the above-numbered case, thru counsel, Atty. Danilo Pine, filed their answer to the complaint. Later, on January 4,1967, the said defendants, thru the same counsel, filed their amended answer.On July 31, 1970, the Court of First Instance of Cavite (now RTC) rendered judgment in favor of the petitioners and against all the defendants in the civil case, including private respondents. Since no appeal was made by any of the defendants from the decision of the trial court, the same became final and executory and the court issued the corresponding writ of execution.However, before the writ could be carried out by the provincial sheriff, all the defendants, thru the same counsel, Atty. Danilo Pine, filed a petition for certiorari and mandamus with the Court of Appeals seeking to annul the writ of execution issued by the trial court in Cavite in Case No. TM-223. On July 9, 1971, the Court of Appeals dismissed the petition for lack of merit.On May 27, 1972, respondent LucinaSamonte and Trinidad Samonte brought an action before the Court of First Instance of Rizal (now RTC) docketed as Case No.C-2442, for the annulment of the final judgment rendered by the trial court in Cavite in Case No. TM-223, alleging the following matters: that they did not authorize anyone including Atty. Danilo Pine to file an answer in their behalf as defendants in Case No. TM 223, and that the filing of the petition for certiorari with the Court of Appeals to annul the writ of execution in the same case was without their knowledge and participation.Petitioners' motion to dismiss the action was denied by the CFI of Rizal. Thus, the instant petition was filed.The issue to be resolved in this case is whether or not the Court of First Instance of Rizal (now RTC) committed grave abuse of discretion or acted without jurisdiction in denying the petitioners' motion to dismiss the action for annulment of the final and executory judgment rendered by the CFI of Cavite.The applicable law is Republic Act No. 296, as amended, otherwise known as "The Judiciary Act of 1948," which was the law in force when the disputed action for annulment was filed on May 27, 1972 in the CFI of Rizal. This is based on the principle that the facts alleged in the complaint and the law in force at the time of commencement of action determine the jurisdiction of a court (Lum Bing v. Ibanez 92 Phil. 799; Rodriguez v. Pecson, 92 Phil. 172; Salao v. Crisostomo, No. L-29146, August 5, 1985, 138 SCRA 17; Tolentino v. Social Security Commission No. L-28870, September 6, 1985, 138 SCRA 428; Philippine Overseas Drilling, etc. v. Minister of Labor, G.R. No. 55703, November 27, 1986, 146 SCRA 79).Section 44(a) of the Revised Judiciary Act of 1948 then vested original jurisdiction in the Courts of First Instance over all civil actions in which the subject of the litigation is not capable of pecuniary estimation and an action for the annulment of a judgment and an order of a court of justice belongs to this category (Vda. de Ursua v. Pelayo, 107 Phil. 622). A court of first instance or a branch thereof has the authority and the jurisdiction as provided for by law to annul a final and executory judgment rendered by another court of first instance or by another branch of the same court. This was the ruling laid down in the cases of (Dulap v. Court of Appeals, No. L-28306, December 18, 1971, 42 SCRA 537; Gianan v. Imperial, No.L-37963, February 28, 1974, 55 SCRA 755 and Francisco v. Aquino, Nos. L-33235-36, July 29, 1976, 72 SCRA 149 which overturned the contrary rulings in Mas v. Dumara-ogNo. L-16252, September 29,1964,12 SCRA 34; J.M. Tuason& Co. v. Torres, et al., No. L-24717, December 4, 1967, 21 SCRA 1169; and Sterling Investment Corporation, et al. v. Ruiz, etc. et al., No. L-30694, October 31, 1969, 30 SCRA 318). Thus, in an action to annul a final judgment or order, the choice of which court the action should be filed is not left to the parties; by legal mandate the action should be filed with the Court of First Instance. The question is in what place (with what particular court of first instance) the action should be commenced and tried (Dulap,supra). The issue therefore to be resolved in the instant case is not one of jurisdiction but of venue-whether it was properly laid in the Court of First Instance of Rizal for the annulment of the judgment rendered by the CFI of Cavite.Section 2, Rule 4 of the Rules of the Court fixes the venue in Courts of First Instance, as follows:SEC. 2.Venue in Court of First Instance (a)Real actions. Actions affecting title to, or for recovery of possession, or for partition or condemnation of, or foreclosure of mortgage on, real property, shall be commenced and tried in the province where the property or any part thereof lies.(b)Personal actions. All other actions may be commenced and tried where the defendant or any of the defendants besides or may be found, or where the plaintiff or any of the plaintiffs resides, at the election of the plaintiff.xxxxxxxxxThe complaint filed by respondent with the CFI of Rizal for the annulment of judgment states that they reside at Caloocan City and that petitioners, as defendants, reside at Cavite (p. 48,Rollo). Since the action for annulment of judgment is a personal one, the venue of the action in this case should be either CFI of Caloocan or CFI of Cavite at the election of the plaintiff. Clearly, venue was improperly laid in the CFI of Rizal and respondent judge should have dismissed the action for annulment of judgment on the ground of improper venue.It is significant to state at this point that although the prevailing rule before B. P. 129 was that courts of first instance and their branches have jurisdiction to annul each other's final judgments and orders as ruled in Dulap and subsequent cases, fundamental principles still dictate that the better policy, as a matter of comity or courteous interaction between courts of first instance and the branches thereof, is for the annulment cases to be tried by the same court or branch which heard the main action sought to be annulled (Gianan v. Imperial,supra).itc-aslMoreover, despite the re-examination by this Court of the old ruling inMas v. Dumara-og,supra, recent decisions still uphold its rationale that pursuant to judicial stability, the doctrine of non-interference should be regarded as highly important in the administration of justice whereby the judgment of a court of competent jurisdiction may not be opened, modified or vacated by any court of concurrent jurisdiction (Ngo Bun Tiong v. Sayo, No. L-45825, June 30, 1988, 163 SCRA 237; Republic v. Reyes, Nos.L-30263-65, October 30, 1987; Parco v. Court of Appeals, No.L-33152, January 30, 1982, 111 SCRA 262).While the foregoing discussion may no longer find any application at this time with the effectivity of Batas Pambansa, Blg. 129, enacted on August 10, 1981, which transferred the jurisdiction over actions for annulment of judgment to the Court of Appeals, it was deemed necessary if only to bring light and settle the existing confusion and chaos among judges of the different courts of first instance and their branches concerning the application of the old laws on jurisdiction and venue over this kind of action. Probably, this confusion was the underlying reason of the Legislature behind the transfer of jurisdiction over annulment of judgments from the trial courts to the Court of Appeals under B.P. 129.Even if We were to disregard, for the sake of argument, the issue on jurisdiction of and venue in the Court of First Instance of Rizal in the annulment suit, We found, upon perusal of the records, that no sufficient grounds exist to justify the annulment of the final judgment of the Cavite court. Certain requisites must be established before a judgment can be the subject of an action for annulment. A judgment can be annulled only on two grounds: (a) the judgment is void for want of jurisdiction or for lack of due process of law, or (b) it has been obtained by fraud (Santiago v. Ceniza, No. L-17322, June 30, 1962, 5 SCRA 494).None of the aforementioned grounds was shown to exist to support the annulment action. The contention of private respondents that they were not served with summons in Case No. TM-223 in the Cavite court is untenable. In their memorandum filed with this Court, they admit that they were served with summons thru their co-defendant Antonio Samonte who acknowledged receipt thereof. The receipt of summons is shown by the return submitted by the sheriff to the Court of First Instance of Cavite. Apart from the presumption that the sheriff had regularly performed his functions, records amply show that all the defendants, including private respondents had filed their answer in Case No. TM-223 thru counsel, Atty. Danilo Pine. And when final judgment had been rendered by the CFI of Cavite against respondents and a writ of execution issued by the trial court, the private respondents, thru the same counsel, Atty. Pine even instituted a petition for certiorari and mandamus to enjoin the execution of the judgment of the Cavite court. Respondents now allege that they have not authorized Atty. Danilo Pine to appear in their behalf as defendants in Case No. TM-223 or to file the petition for certiorari with the appellate court. Such allegation is devoid of merit.An attorney is presumed to be properly authorized to represent any cause in which he appears, and no written power of attorney is required to authorize him to appear in court for his client (Sec. 21, Rule 138, Rules of Court). The fact that private respondents had not personally appeared in the hearings of Case TM-223 in the trial court is immaterial. The filing of the answer by and appearance of Atty. Danilo Pine in their behalf are sufficient to give private respondents standing in court. It is hard to believe that a counsel who has no personal interest in the case would fight for and defend a case with persistence and vigor if he had not been authorized or employed by the party concerned. It is obvious that since the appellate court had decided adversely against private respondents in their petition for certiorari, the latter filed the annulment suit for a second chance at preventing petitioners from enforcing the decision rendered by the Cavite court in favor of the latter.It is an important fundamental principle in Our judicial system that every litigation must come to an end. Access to the courts is guaranteed. But there must be a limit thereto. Once a litigant's rights have been adjudicated in a valid final judgment of a competent court, he should not be granted an unbridled license to come back for another try. The prevailing party should not be harassed by subsequent suits. For, if endless litigations were to be encouraged, unscrupulous litigants will multiply in number to the detriment of the administration of justice (Ngo Bun Tiong v. Sayo,supra; Pacquing v. Court of Appeals, G.R. 52498, July 19, 1982, 115 SCRA 117).ACCORDINGLY, the petition is GRANTED and the respondent judge of the Court of First Instance of Rizal (now Regional Trial Court) is ORDERED to dismiss Civil Case No. C-2442. The temporary restraining order issued by this Court is hereby made permanent.SO ORDERED.FIRST DIVISIONLAND BANK OF THE PHILIPPINES,G.R. No. 167886Petitioner,Present: Davide, Jr.,C.J. (Chairman), - versus - Quisumbing, Ynares-Santiago, Carpio, and Azcuna,JJ.PAMINTUAN DEVELOPMENTCO., represented by MARIANOPromulgated:PAMINTUAN, JR.,Respondent. October 25, 2005x ---------------------------------------------------------------------------------------- xDECISIONYNARES-SANTIAGO,J.: This petition for review on certiorari assails the April 15, 2005 Decision[1]of the Court of Appeals in CA-G.R. SP No. 85843, which dismissed Land Bank of the Philippines (LANDBANKs) petition and sustained the August 2, 2004 Order[2]of the Department of Agrarian Reform Adjudication Board (DARAB) which denied due course to the notice of appeal and notice of entry of appearance filed by LANDBANKs counsels. The antecedent facts show that in DARAB Case No. 1204-0545-2003 for Preliminary Determination of Just Compensation, DARAB rendered a Decision[3]dated April 27, 2004, fixing the just compensation of respondent Pamintuan Development Companys 274.9037 hectare lot covered by Transfer Certificate of Title No. T-4972 and located at San Vicente, Makilala, Cotabato, at P58,237,301.68. The dispositive portion thereof, reads:WHEREFORE, foregoing considered, the just compensation of TCT No. T-4972 registered in the name of Pamintuan Development Company (PAMDEVCO) containing an area of 274.9037 hectares located at San Vicente, Makilala, Cotabato is preliminary determined at FIFTY EIGHT MILLION TWO HUNDRED THIRTY SEVEN THOUSAND THREE HUNDRED ONE AND 68/100 (P58,237,301.68) PESOS.SO ORDERED.[4]Petitioner moved for reconsideration but was denied. The order denying the motion for reconsideration was received by petitioner on June 11, 2004. At the proceedings before the trial court, petitioner was represented by Piczon, Beramo& Associates.On June 4, 2004, Attys. Engilberto F. Montarde and Felix F. Mesa, filed a Notice of Entry of Appearance[5]in behalf of petitioner. Within the period to appeal, or on June 15, 2004, said counsels also filed a Notice of Appeal[6]via registered mail. The Certification[7]attached to the Notice of Appeal was signed by Loreto B. Corotan, Head of petitioners Agrarian Operations Center. Respondent filed an Opposition contending that the notice of appeal and notice of entry of appearance should be denied due course because Attys. Montarde and Mesa failed to show that their appearance was authorized by petitioner. Said new counsels, on the other hand, asserted that they were duly authorized, attaching to their Comment the Special Power of Attorney (SPA) executed by Gilda E. Pico, Executive Vice President of petitioner, authorizing Loreto B. Corotan to represent,[8]and designating[9]Attys. Montarde and Mesa as counsels for LANDBANK. On August 2, 2004, DARAB issued an order holding that Attys. Montarde and Mesa are without authority to represent petitioner because the latter failed to effect a valid substitution of their former counsel of record. It added that the April 27, 2004 decision had become final and executory because the notice of appeal filed by its purported new counsels is a mere scrap of paper which did not toll the running of the reglementary period to appeal. Thus WHEREFORE, foregoing considered, the instant Notice of Entry of Appearance and the Notice of Appeal are hereby not given DUE COURSE for LACK OF LEGAL BASIS. The decision dated April 27, 2004 has become FINAL and EXECUTORY. SO ORDERED.[10]Petitioner filed a motion for reconsideration appending two memoranda[11]signed by Atty. Danilo B. Beramo, petitioners Department Manager and Head, Comprehensive Agrarian Reform Program (CARP) Legal Services Department, confirming the authority of Atty. Montarde to file a notice of appeal.The DARAB, however, denied petitioners motion for reconsideration. Hence, a petition forcertiorariwas filed by petitioner with the Court of Appeals, but the latter dismissed the petition. It sustained the DARABs finding that Attys. Montarde and Mesa were not clothed with authority to file the notice of appeal.[12]Petitioner filed the instant petition with prayer for the issuance of a temporary restraining order.In a resolution dated June 6, 2005, the Court issued a temporary restraining order enjoining the execution of the April 27, 2004 decision of the DARAB.We find that the DARAB gravely abused its discretion in holding that Attys. Montarde and Mesa lacked the authority to file a notice of appeal in behalf of petitioner. Section 21, Rule 138 of the Rules of Court provides:SEC. 21.Authority of attorney to appear. An attorney is presumed to be properly authorized to represent any cause in which he appears, and no written power of attorney is required to authorize him to appear in court for his client, but the presiding judge may, on motion of either party and on reasonable grounds therefor being shown, require any attorney who assumes the right to appear in a case to produce or prove the authority under which he appears, and to disclose, whenever pertinent to any issue, the name of the person who employed him, and may thereupon make such order as justice requires. An attorney wilfully appearing in court for a person without being employed, unless by leave of the court, may be punished for contempt as an officer of the court who has misbehaved in his official transactions.The presumption in favor of the counsels authority to appear in behalf of a client is a strong one.[13] A lawyer is not even required to present a written authorization from the client. In fact, the absence of a formal notice of entry of appearance will not invalidate the acts performed by the counsel in his clients name.[14] However, the court, on its own initiative or on motion of the other party require a lawyer to adduce authorization from the client.In the case at bar, the filing of a notice of entry of appearance by Attys. Montarde and Mesa, gave rise to the presumption that they have the authority to file the notice of appeal in behalf of petitioner. When their authority was challenged, they presented the SPA executed by Gilda E. Pico, Executive Vice President of LANDBANK authorizing them to represent petitioner; and the two memoranda of Atty. Danilo B. Beramo, Department Manager and Head, CARP Legal Services Department, requesting Atty. Montarde to file a notice of appeal. These documents are sufficient proof of their authority to represent petitioners cause. The doubt entertained by the DARAB as to when the SPA and memoranda were executed is of no consequence in view of petitioners vigorous assertion that it authorized said lawyers to file a notice of appeal. Indeed, even an unauthorized appearance of an attorney may be ratified by the client either expressly[15]or impliedly.[16] Ratification retroacts to the date of the lawyers first appearance and validates the action taken by him.[17]The DARABs assertion that Attys. Montarde and Mesa cannot validly represent petitioner because there was no proper substitution of counsels, lacks merit. Petitioner never intended to replace its counsel of record, the law firm Piczon, Beramo& Associates. Though not specified in the notice, Attys. Montarde and Mesa entered their appearance as collaborating counsels.Likewise, the Court of Appeals erroneously applied the doctrine laid down inSublay v. National Labor Relations Commission,[18]in dismissing the petition. InSublay, it was held that a substitution cannot be presumed from the mere filing of a notice of appearance of a new lawyer and that the representation of the first counsel of record continuous until a formal notice to change counsel is filed with the court.[19] Thus, absent a formal notice of substitution, all lawyers who appeared before the court or filed pleadings in behalf of the client are considered counsels of the latter. All acts performed by them are deemed to be with the clients consentThe case ofOngChing v. Ramolete,[20]is on all fours with the instant controversy. The trial court therein held that the period to appeal had already lapsed rendering the assailed decision final and executory because petitioners motion for reconsideration, though presented within the reglementary period, is without legal effect having been filed by a lawyer other than petitioners counsel of record. It disregarded petitioners written authorization belatedly filed by said new lawyer as the same was not appended to the motion for reconsideration previously filed. In debunking the ruling of the trial court, we stressed that the new counsel who filed the motion for reconsideration in behalf of the client is presumed to be authorized even if he filed no formal notice of entry of appearance. Hence, said motion effectively tolled the running of the period to appeal. As explained by the Court:The present case, however, does not involve a substitution of attorneys, but merely the employment by petitioner of an additional counsel. True it is, as claimed by respondents, that the motion for reconsideration filed by Atty. Hermosisima gives no indication that he was presenting his motion in collaboration with Atty. Vasquez; but neither would it indicate that by his filing of the pleading in the case, Atty. Hermosisima was replacing Atty. Vasquez as counsel for petitioner. In law it is assumedprima faciethat every attorney who appears in court does so with sufficient authority. The fact that a second attorney enters an appearance on behalf of a litigant does not authorize a presumption that the authority of the first attorney has been withdrawn. There is no question that a party may have two or more lawyers working in collaboration as his counsel in a given litigation. Thus in the case at bar the certificate dated May 16, 1972, executed by Atty. Vasquez, is to the effect that he, with the consent and authority of petitioner (who signified his conformity in writing) was authorizing Atty. Hermosisima to collaborate with him in the case due to his ill health. While the said certificate was not attached to the motion for reconsideration on May 17, 1972, but was presented in court rather belatedly on June 16, 1972 as an annex to petitioners Rejoinder to Opposition to Motion for Reconsideration, respondents have not shown that the recitals of fact contained therein did not reflect the truth. At any rate, this case is different from U.S. v. Borromeo, Fojas, et al. v. Navarro, Ramos v. Potenciano, Baquiran v. Court of Appeals. Here petitioner's counsel, Atty. Vasquez, not only affirmed his continued connection with the case, but also explained Atty. Hermosisimas appearance as collaborating counsel. While it may be desirable in the interest of an orderly conduct of judicial proceedings, that a counsel for a party should file with the court his formal written appearance in the case, before filing a pleading therein, or mention in said pleading that he is submitting the same in collaboration with the counsel of record, the mere circumstance that such acts were not done does not warrant the conclusion that the pleading filed by such counsel has no legal effect whatsoever.It is evident therefore that the DARAB gravely abused its discretion in denying due course to the notice of appeal seasonably filed by Attys. Montarde and Mesa, the duly authorized counsel of petitioner. In the same vein, the affirmance by the Court of Appeals of the assailed order of the DARAB is a clear disregard of the oft repeated principle that courts should not resort to a rigid application of the rules where the end result would frustrate the just, speedy and inexpensive determination of the controversy.[21]WHEREFORE, the petition isGRANTEDand the April 15, 2005 Decision of the Court of Appeals dismissing the petition in CA-G.R. SP No. 85843, isREVERSEDandSET ASIDE. The Department of Agrarian Reform Adjudication Board isDIRECTEDto give due course to petitioners Notice of Entry of Appearance and the Notice of Appeal.SO ORDERED.Republic of the PhilippinesSUPREME COURTManilaFIRST DIVISIONG.R. Nos. L-49241-42 April 27, 1990RINCONADA TELEPHONE COMPANY, INC.,petitioner,vs.HON. CARLOS R. BUENVIAJE, IRIGA TELEPHONE COMPANY INC. and FRANCISCO IMPERIAL,respondents.Benjamin S. Santos for petitioner.Mulry P. Mendez for respondent Company.

MEDIALDEA,J.:This petition forcertiorariandmandamusis directed against the order of respondent judge dated January 23, 1978, denying petitioner's right to appeal from his previous orders dated September 16 and 29, 1977 ordering the dismissal of Civil Cases No. IR-265 and IR-578 both entitled Rinconada Telephone Co., Inc.,Plaintiff v. Iriga Telephone Co., Inc., and Francisco Imperial, Defendants.The record discloses the following factual backdrop:For and in consideration of the sum of P12,500. 00 in the form of shares of stocks totalling 125 at P100.00 per share, respondent Francisco Imperial, on July 30, 1971, orally conveyed to petitioner, a certificate of public convenience and necessity to operate a telephone company in Iriga City issued to him by the defunct Public Service Commission (now Land Transportation Franchising and Regulatory Board). After the agreement, petitioner started to operate under the strength of said certificate. It was only on October 14, 1971 that petitioner and respondent Imperial, executed the deed of sale pursuant to their earlier agreement.1On September 21, 1972, respondent Imperial again sold the same certificate to herein respondent Iriga Telephone Company, Inc. (ITELCO) This second sale was approved by the then Public Service Commission. By reason of the second sale, petitioner charged respondent Imperial of Estafa before the then CFI (now RTC) of Manila. Petitioner also filed with the then CFI of Iriga City two (2) actions against respondent Imperial, one for breach of contract with damages,2docketed as Civil Case IR No. 265, and the other, for annulment of Deed of Sale with damages,3docketed as Civil Case IR 578. Both cases were assigned to respondent judge and petitioner was represented by Atty. Luciano Maggay.Because his guilt was not proven beyond reasonable doubt, respondent Imperial was absolved in the criminal case.4He then moved for the dismissal of the civil cases pending before respondent judge on the ground ofres judicata.5Petitioner opposed the motion6but nevertheless respondent judge granted the same in two (2) orders dated September 16 and 29, 1977.7Petitioner, thru Atty. Benjamin Santos sought reconsideration8but respondent judge refused to reconsider the orders of dismissal.9Thus petitioner, thru the same counsel, filed a notice of appeal and appeal bond. Respondent Imperial opposed the appeal because the same was filed out of time. Respondent judge in an order dated January 23, 1978 denied the notice of appeal. In agreement with respondent Imperial, the trial court said.This is so for the order of dismissal dated September 18, 1977 (sic) was shown to have been received by Atty. Luciano Maggay for Rinconada Telephone Co. on October 11, 1977, and 28 days thereafter, or on November 8, 1978, Atty. Benjamin Santos, another counsel for the same party filed a Motion for Reconsideration which was denied by proper order on January 23, 1978. The aforesaid latest order was received for Rinconada Telephone Co., Inc. through Atty. Maggay, who has been shown in the records to be still a counsel of record for the same party on February 2, 1978. Since the notice of Appeal and Appeal Bond appear to have been filed on April 19, 1978 and the Record on Appeal only on June 7, 1978, and not on February 4, 1978, which was the last and 30th day reglementary period for interposing the contemplated. (p. 58,Rollo)Petitioner is now before Us claiming that respondent judge gravely abused his discretion in denying it the right to appeal. Petitioner contends that it received court processes thru Atty. Santos when the latter entered his appearance in both cases by his filing of a notice of appearance and a motion for reconsideration of the orders of dismissal which he furnished the counsel of respondent Imperial. Specifically, it mentioned the order of respondent judge sent to Atty. Benjamin Santos considering the motion for reconsideration submitted for resolution.10It expressed amazement over the act of respondent judge in not sending to Atty. Santos a copy of the order denying the motion for reconsideration knowing fully well that the period to appeal therefrom would lapse without the knowledge of Atty. Santos, its new counsel. While admitting that its notice of appeal and appeal bond was filed out of time; petitioner considers such fact as the result of the collusion between respondent judge and respondent Imperial.The right of client to terminate his relations with his counsel is universally recognized (Enos v. Casting, 67 ALR 430).1wphi1Such termination may be with or without cause (Aro v. Narawa L-24146, April 28, 1969, 21 SCRA 1160). The light of a client to terminate the authority of his counsel includes the right to make a change or substitution at any stage of the proceedings. To be valid, any such change or substitution must be made: a) upon written application; b) with written consent of the client; c) upon written consent of the attorney to be substituted; d) in case the consent of attorney to be substituted cannot be obtained there must be at least a proof of notice that the motion for substitution has been served upon him in the manner prescribed by the rules (Section 26, Rule 138, Rules of Court).Undisputedly, there was no valid substitution in cases at bar. Neither can it be said that Atty. Maggay formally withdrew as counsel for petitioner in the cases. Therefore, he continued to represent petitioner and he remained the counsel of record and was for all legal purposes, petitioners' attorney upon whom respondent court's processes may be served. When a party is represented by counsel, notice should be made upon the counsel of record (Jalover v. Ytorriaga, L-35989, October 28, 1977, 80 SCRA 100) at his given address in the absence of notice of change of address (Lopez v. de los Reyes, L-23671, January 30, 1970, 31 SCRA 214). Since he was the last to appear before any application for substitution was filed, Atty. Maggay remained responsible for the conduct of petitioner's cause (Olivares v. Leola, 97 Phil. 352; Aban v. Enage, L-30666, February 25, 1983, 120 SCRA 778).Despite the filing of Atty. Santos of a motion for reconsideration, copy of which he furnished the opposing counsel, Atty. Maggay is still considered counsel of record (Aban v. Galope L-30666, February 25, 1983, 120 SCRA 778). Not having formally withdrawn as counsel, the order denying the notice of appeal and appeal bond was deemed properly served upon Atty. Maggay. Notice of the order to him was notice to petitioner and for all legal intents and purposes, the date of his receipt is considered the starting point from which the period to appeal prescribed by law starts to run (Cubar v. Mendoza, L-55035, February 23, 1983, 120 SCRA 768; Baquiran v. Court of Appeals, L-14551, July 31, 1961, 2 SCRA 873).However, to the mind of the Court, there are circumstances present in these cases which warrant a relaxation of the foregoing rule and jurisprudence. It cannot be denied that respondent judge recognized Atty. Santos as petitioner's new counsel. This is apparent when the trial court sent Atty. Santos a copy of the order considering the motion for reconsideration for resolution and also when it referred to Attys. Maggay and Raneses as petitioner's former counsels and Atty. Santos as the new counsel of petitioner in its order denying reconsideration. Having acknowledged Atty. Santos as the new counsel of petitioner, there is a clear case of negligence when said lawyer was not furnished copy of the order denying reconsideration as a copy of the order considering that motion for resolution was furnished to petitioner thru said lawyer.In view of respondent judge's recognition of Atty. Santos as new counsel for petitioner without even a valid substitution or withdrawal of petitioner's former counsel, said new counsel logically awaited for service to him of any action taken on his motion for reconsideration. Respondent judge's sudden change of posture in insisting that Atty. Maggay is the counsel of record is, therefore, a whimsical and capricious exercise of discretion that prevented petitioner and Atty. Santos from taking a timely appeal from said order. Clearly, respondent judge committed grave abuse of discretion, amounting to lack of jurisdiction in denying petitioner's notice of appeal. While it is desirable that the Rules of Court be faithfully and even meticulously observed, courts should not be so strict about procedural lapses that do not really impair the administration of justice especially when such strict compliance was apparently relaxed by the trial court itself. If the rules are intended to insure the orderly conduct of litigation it is because of the higher objective they seek which is the protection of substantive right of the parties (Serina v. CA, G.R. No. 28661, February 21, 1989). As was held in several cases:. . . Because there is no vested right in technicalities, in meritorious cases, a liberal, not literal, interpretation of the rules becomes imperative and technicalities should not be resorted to in derogation of the intent and purpose of the rules which is the proper and just determination of litigation. Litigations, should as much as possible, be decided on their merits and not on technicality. Dismissal of appeals purely on technical grounds is frowned upon, and the rules of procedure ought not to be applied in a very rigid, technical sense, for they are adopted to help secure, not override, substantial justice, and thereby defeat their very aims. As has been the constant rulings of this Court, every party-litigant should be afforded the amplest opportunity for the proper and just disposition of his cause, free from the constraints of technicalities. . . (Fonseca v Court of Appeals, G.R. No.L-36035, August 30, 1988; Hernandez v. Quitain, G.R. No.L48457, November 29, 1988; 168 SCRA 99).ACCORDINGLY, the writs prayed for are GRANTED. Respondent trial court is hereby ordered to allow the appeal of petitioner from the orders dismissing Civil Cases No. IR-265 and IR-578.SO ORDERED.EN BANCA.C. No. 408 September 30, 1963GERVASIO DAUZ, complainant,vs.NAPOLEON O. FONTANOSA,respondentPADILLA,J.:chanrobles virtual law library This is a disbarment proceedings against Atty. Napoleon O. Fontanosa of Kidapawan, Cotabato, for malpractice.chanroblesvirtualawlibrarychanrobles virtual law library It appears that on 18 April 1958, the respondent on behalf of the complainant filed in the Justice of the Peace Court of Kidapawan, Cotabato, three separate complaints against Sergio Orfrecio (Case No. 151, Annex A), Mariano Abellera and DemetriaAbellera (Case No. 152, Annex B) and HadjiSaed (Case No. 153, Annex C) to collect from them P190.00, P280.00 and P150.00, respectively, the unpaid balance of the purchase price of sewing machines, interest thereon, attorney's fees and costs; that on 20 April, the complainant and the respondent entered into written contracts whereby for and in consideration of P100 for each collection case, the latter undertook to represent the former in court in the three collection cases, and the complainant bound himself to pay the stipulated attorney's fees even if the cases be settled amicably before trial (Annexes A-1, B-1 and C-1); that on 22 August, the complainant terminated the services of the respondent, engaged the services of another attorney and requested the respondent to return the documents and papers entrusted to him upon which the complaints in the collection cases are based; that the respondent refused to return the documents on which he claimed to have a lien unless his stipulated attorney's fees be paid; that in view of the respondent's refusal to return the documents, on 29 September, the complainant asked the Justice of the Peace Court of Kidapawan, Cotabato, to issue asubpoena ducestecumrequiring the respondent to appear and produce in court the documents referred to; that the Justice of the Peace denied the motion for the issuance of asubpoena ducestecumon the ground that the documents are privileged and the respondent as attorney has a lien on them; that on 3 October, the complainant filed a motion for reconsideration of the order denying his motion for the issuance of asubpoena ducestecum; that on 16 October, in Civil Cases Nos. 151 and 152, the Justice of the Peace Court entered an order requiring the respondent to appear and show cause why asubpoena ducestecumshould not be issued to compel him to bring to court the documents in his possession; that on 21 October, the respondent objected to the motion for reconsideration filed by the complainant on 3 October in Civil Cases Nos. 151 and 152; that on 29 October, finding the objection well taken, the justice of the Peace Court denied the motion for reconsideration; that as the then plaintiff, now complainant, could not proceed with the trial of the cases because of the respondent's retention of the documents and papers which were his evidence in said Civil Case Nos. 151, 152 and 153, the cases were dismissed without prejudice (Annexes I, J, K.).chanroblesvirtualawlibrarychanrobles virtual law library On 28 May 1959, the complainant GervacioDauz filed in this Court a petition, dated and verified on the 12th day of December 1958, charging the respondent with malpractice and praying for his disbarment or suspension.chanroblesvirtualawlibrarychanrobles virtual law library The charges are (1) respondent's refusal, without cause, to return or surrender the documents above referred to unless his attorney's fees be paid first; (2) laxity in the performance of his duties by asking for and agreeing to numerous postponements of the trial of the cases entrusted to him, to the damage and prejudice of his client; (3) an attempt by the respondent to induce the complainant's common law-wife to execute an affidavit and state therein that the complainant intended to kill, the respondent if the latter would not return the documents; and failing, in this attempt, the respondent succeeded in inducing for a consideration the complainant's common-law wife to run away with the trunk belonging to the complainant "containing valuables relative to his business" (Annex G); and (4) conspiring with the Municipal Treasurer of Kidapawan, Cotabato, to prosecute him (complainant) criminally, for his failure to pay his municipal license for the 2nd to the 4th quarters of 1958 (Annex H).chanroblesvirtualawlibrarychanrobles virtual law library On 28 October 1959, the respondent filed his answer denying the charges. On 30 October, this Court referred the case to the Solicitor General for investigation, report and recommendation. The Solicitor General in turn referred the case to the Provincial Fiscal of Cotabato for investigation.chanroblesvirtualawlibrarychanrobles virtual law library On 17 December 1959, the day set for the investigation, both parties appeared; but the complainant moved for continuance on the ground that his witnesses were indisposed and his attorney was in Manila attending to some cases.chanroblesvirtualawlibrarychanrobles virtual law library On 18 January 1960, the complainant wrote to the Solicitor General asking that the Provincial Fiscal of Davao be assigned to conduct the investigation because his life was being threatened by the respondent. In support of his petition, the complainant attached a copy of an anonymous letter where he was warned that his life would be in danger should he appear in Kidapawan for the investigation. On 3 February, counsel for the complainant wrote to the investigator asking for another continuance of the investigation set for 4 February, for the reason that he was to appear at the hearing of a civil case in the Court of First Instance of Davao. He also alleged that the petition for assignment of the Provincial Fiscal of Davao to conduct the investigation had not yet been acted upon by the Solicitor General.chanroblesvirtualawlibrarychanrobles virtual law library Acting upon the petition of the complainant for assignment of the Provincial Fiscal of Davao to conduct the investigation, the investigator ruled that a mere anonymous letter informing the complainant that his life would be in danger should he appear at the investigation was not sufficient to justify his petition, the place of the investigation being Cotabato City and not Kidapawan where the complainant's life was allegedly in danger.chanroblesvirtualawlibrarychanrobles virtual law library After failure of the complainant or his counsel to appear on the 4th of February 1960, the day set for the resumption of the investigation, the investigator heard the testimony of Atty. Juan Sibag, DatuHadjiBagundang, Mario Palmones, Sr., and Justice of the Peace Felipe Eleosida of Kidapawan, Cotabato, presented by the respondent.chanroblesvirtualawlibrarychanrobles virtual law library Upon the admissions made by the respondent in his answer and the evidence presented during the investigation, the investigator recommended the dismissal of the complaint. The Solicitor General is, however, of the opinion that the respondent violated his lawyer's oath by refusing without cause to return the documents entrusted to him in connection with the cases in which his service as attorney had been engaged unless his attorney's fees be paid first; and was lax or remiss in the performance of his duties by asking for and agreeing to numerous postponements of the hearing of the cases entrusted to him to the prejudice of his client's interest, and recommends that the respondent be reprimanded with a warning that a repetition of the acts or conduct complained of will be dealt with more severely. As to the other charges, the Solicitor General believes that there is no sufficient evidence to prove or support them.chanroblesvirtualawlibrarychanrobles virtual law library The fact that the hearing of the cases had been postponed several times not all upon the petition of the respondent because it was also continued upon petition of the adverse party and in several instances upon joint motion of the parties is not enough to support the charge of laxity in the performance by the respondent of his duties as attorney.chanroblesvirtualawlibrarychanrobles virtual law library Likewise, the refusal of the respondent to return the documents or receipts that had come into his possession as attorney, whose professional service had been engaged by the complainant to bring the action against the latter's debtors, may not be the proper conduct, but is not devoid of justification because the respondent believed he was entitled to retain them unless his fees agreed upon in writing be paid first. After requiring upon motion the respondent "to show cause why a subpoena ducestecum should not be issued for his appearance in court relative to the documents in his possession" the Justice of the Peace, in whose court the collection cases had been filed, denied the motion for reconsideration of the order filed by the complainant. So that if the Justice of the Peace was of the opinion that the respondent could not retain possession or withhold production or presentation of the documents, he could have issued suchsubpoena ducestecum,and if disobeyed by the respondent, could have punished him for contempt. Nothing appears to have been done further in the premises. According to the complaint (par. 9) the Justice of the Peace refused to issue thesubpoena ducestecum.If such refusal by the Justice of the Peace was an error, the complainant should have appealed from the order of dismissal without prejudice of the complaints, and as such order of dismissal is vacated after the appeal had been perfected and the cases would be triedde novoin and by the Court of First Instance, the complainant could have renewed, repeated or reiterated his motion for the issuance of asubpoena ducestecum.This the complainant or his attorney failed to do.chanroblesvirtualawlibrarychanrobles virtual law library IN VIEW OF THE FOREGOING, the charges preferred against attorney Napoleon O. Fontanosa by GervacioDauz are dismissed.EN BANC[CBD A.C. No. 313.January 30, 1998]ATTY. AUGUSTO G. NAVARRO, for and in behalf of PAN-ASIA INTERNATIONAL COMMODITIES, INC.,complainant,vs. ATTY. ROSENDO MENESES III,respondent.D E C I S I O NPER CURIAM:This administrative case against respondent Atty. RosendoMenesesIII was initiated by a complaint-affidavit[1]filed by Atty. Augusto G. Navarroon June 7, 1994 before the Commission on Bar Discipline of the Integrated Bar of the Philippines (hereinafter, the Commission), for and in behalf of Pan-Asia International Commodities, Inc.Herein complainant charges respondent Meneses with the following offenses,viz.:(1) malpractice and gross misconduct unbecoming a public defender; (2) dereliction of duty, by violating his oath to do everything within his power to protect his clients interest; (3) willful abandonment; and (4) loss of trust and confidence, due to his continued failure to account for the amount ofP50,000.00 entrusted to him to be paid to a certain complainant for the amicable settlement of a pending case.[2]The complaint-affidavit alleged that Frankwell Management and Consultant, Inc., a group of companies which includes Pan Asia International Commodities, Inc., through its Administrative Manager Estrellita Valdez, engaged the legal services of respondent Atty. Meneses.While serving as such counsel, Atty. Meneses handled various cases and was properly compensated by his client in accordance with their retainer agreement.[3]One of the litigations handled by him was the case of People vs. Lai Chan Kow, a.k.a. Wilson Lai, and Arthur Bretaa, pending before Branch 134, Regional Trial Court of Makati.On December 24. 1993, respondent received the sum ofP50,000.00 from Arthur Bretaa, the accused in said case, to be given to therein offended party, a certain Gleason, as consideration for an out-of-court settlement and with the understanding that a motion to dismiss the case would be filed by respondent Meneses.Despite subsequent repeated requests, respondent failed to present to his client the receipt acknowledging that Gleason received said amount.A verification made with the Regional Trial Court of Makati revealed that no motion to dismiss or any pleading in connection therewith had been filed, and the supposed amicable settlement was not finalized and concluded.Despite repeated demands in writing or by telephone for an explanation, as well as the turnover of all documents pertaining to the aforementioned case, respondent Meneses deliberately ignored the pleas of herein complainant.The case was assigned by the Commission to Commissioner Victor C. Fernandez for investigation.Respondent was thereafter ordered to submit his answer to the complaint pursuant to Section 5, rule 139-B of the Rules of Court.[4]Two successiveex partemotions for extension of time to file an answer were filed by respondent and granted by the Commission.[5]On November 14, 1994, respondent filed a motion to dismiss,[6]instead of an answer.In said motion, respondent argued that Atty. Navarro had no legal personality to sue him for and in behalf of Pan-Asia International Commodities, Inc. because his legal services were retained by Frankwell Management and Consultant, Inc.; that Navarro had not represented Pan-Asia International Commodities, Inc. in any case nor had been authorized by its board ofdirectors to file this disbarment case against respondent; that the retainer agreement between him and Frankwell Management and Consultant, Inc. had been terminated as of December 31, 1993 according to the verbal advice of its Administrative Officer Estrellita Valdez; that the case of Arthur Bretaa was not part of their retainer agreement, and Bretaa was not an employee of Frankwell Management and Consultant, Inc. which retained him as its legal counsel; and that the settlement of said case cannot be concluded because the same was archived and accused Bretaa is presently out of the country.Herein complainant, in his opposition to the motion to dismiss,[7]stresses that respondent Meneses is resorting to technicalities to evade the issue of his failure to account for the amount ofP50,000.00 entrusted to him; that the respondents arguments in his motion to dismiss were all designed to mislead the Commission; and that he was fully aware of the interrelationship of the two corporations and always coordinated his legal work with Estrellita Valdez.On November 28, 1994, Investigating Commissioner Victor C. Fernandez resolved to deny said motion to dismiss for lack of merit and directed respondent to file his answer.[8]On January 2, 1995, respondent filed a manifestation that he was adopting the allegations in his motion to dismiss his answer.[9]When the case was set for hearing on February 9, 1995, respondent failed to attend despite due notice.He thereafter moved to postpone and reset the hearing of the case several times allegedly due to problems with his health.On the scheduled hearing on June 15, 1995, respondent again failed to attend.The commissioner accordingly received anex partethe testimony of complainants sole witness, Estrellita Valdez, and other documentary evidence.[10]Thereafter, complainant rested its case.Respondent filed a so-called UrgentEx-parteMotion for Reconsideration with Motion to Recall Complainants Witness for Cross-Examination[11]which was granted by the Commission.[12]Estrellita Valdez was directed by the Commission to appear on the scheduled hearing for cross-examination.Several postponement and resetting of hearings were later requested and granted by the Commission.When the case was set for hearing for the last time on May 31, 1996, respondent failed to attend despite due notice and repeated warnings.Consequently, the Commission considered him to have waived his right to present evidence in his defense and declared the case submitted for resolution.[13]On February 4, 1997, the Commission on Bar Discipline, through its Investigating Commissioner Victor C. Fernandez, submitted its Report and Recommendation[14]to the Board of Governors of the Integrated Bar of the Philippines.The Commission ruled that the refusal and/or failure of respondent to account for the sum ofP50,000.00 he received from complainant for the settlement of the aforestated case of Lai Chan Kow and Arthur Bretaa proves beyond any shadow of a doubt that he misappropriated the same, hence he deserved to be penalized.The Commission recommended that respondent Meneses he suspended from the practice of the legal profession for a period of three (3) years and directed to return theP50,000.00 he received from the petitioner within fifteen (15) days from notice of the resolution.It further provided that failure on his part to comply with such requirement would result in his disbarment.[15]The Board of Governors adopted and approved the report and recommendation of the Investigating Commissioner in its Resolution No. XII-97-133, dated July 26, 1997.[16]On August 15, 1997, the Court received the Notice of Resolution, the Report and Recommendation of the Investigating Commissioner, and the records of this case through the Office of the Bar Confidant for final action pursuant to Section 12 (b) of Rule 139-B.[17]It appears therefrom that respondent was duly furnished a copy of said resolution, with the investigating commissioners report and recommendation annexed thereto.The Court agrees with the findings and conclusion of the Integrated Bar of the Philippines that respondent Meneses misappropriated the money entrusted to him and which he has failed and/or refused to account for to his client despite repeated demands therefor.Such conduct on the part of respondent indicating his unfitness for the confidence and trust reposed on him, or showing such lack of personal honesty or of good moral character as to render him unworthy of public confidence, constitutes a ground for disciplinary action extending to disbarment.[18]Respondent Meneses misconduct constitute a gross violation of his oath as a lawyer which,inter alia, imposes upon every lawyer the duty to delay no man for money or malice.He blatantly disregarded Rule 16.01 of Canon 16 of the Code of Professional Responsibility which provides that a lawyer shall account for all money or property collected or received for or from his client.Respondent was merely holding in trust the money he received from his client to used as consideration for amicable settlement of a case he was handling.Since the amicable settlement did no materialize, he was necessarily under obligation to immediate return the money, as there is no showing that he has a lien over it.As a lawyer, he should be scrupulously careful in handling money entrusted to him in his professional capacity, becausea high degree of fidelity and good faith on his part is exacted.[19]The argument of respondent that complainant has no legal personality to sue him is unavailing.Section 1 Rule 139-B of the Rules of Court provides that proceedings for the disbarment, suspension, or discipline of attorneys may be taken by the Supreme Courtmotupropioor by the Integrated Bar of the Philippines upon the verified complainant of any person.The right to institute a disbarment proceeding is not confined to clients nor is it necessary that the person complaining suffered injury from the alleged wrongdoing.Disbarment proceedings are matters of public interest and the only basis for judgment is the proof or failure of proof of the charge.The evidence submitted by complainant before the Commission on Bar Discipline sufficed to sustain its resolution and recommended sanctions.It is settled that a lawyer is not obliged to act as counsel for every person who may wish to become his client.He has the right to decline employment[20]subject however, to the provision of Canon 14 of the Code of Professional Responsibility.[21]Once he agrees to take up the cause of a client, he owes fidelity to such cause and must always be mindful of the trust and confidence reposed to him.[22]Respondent Meneses, as counsel, had the obligation to inform his client of the status of the case and to respond within a reasonable time to his clients request for information.Respondents failure to communicate with his client by deliberately disregarding its request for an audience or conference is an unjustifiable denial of its right to be fully informed of the developments in and the status of its case.On January 7, 1998, the Bar Confidant submitted to the Court a copy of the letter of Atty. Augusto G. Navarro, dated December 18, 1997, to the effect that although a copy of the aforestated Resolution No. XII-97-133 was personally delivered to respondents address and receivedby his wife on October 9, 1997, he had failed to restitute the amount ofP50,000.00 to complainant within the 15-day period provided therein.Neither has he filed with this Court any pleading or written indication of his having returned said amount to complainant.In line with the resolution in this case, his disbarment is consequently warranted and exigent.A note and advice on the penalty imposed in the resolution is in order.The dispositive portion thereof provides that:x xx Respondent Atty. RosendoMeneses is hereby SUSPENDED from the practice of law for three (3) years and is hereby directed to return the Fifty Thousand Pesos he received from the petitioner within fifteen (15) days from receipt of this resolution.Failure on his part to comply will result (i)n his DISBARMENT.[23]In other words, it effectively purports to impose either a 3-year suspension or disbarment, depending on whether or not respondent duly returns the amount to complainant.Viewed from another angle, it directs that he shall only be suspended, subject to the condition that he should make restitution as prescribed therein.Dispositions of this nature should be avoided.In the imposition of penalties in criminal cases, it has long been the rule that the penalty imposed in a judgment cannot be in the alternative, even if the law provides for alternative penalties,[24]not can such penalty be subject to a condition.[25]There is no reason why such legal principles in penal law should not apply in administrative disciplinary actions which, as in this case, also involve punitive sanctions.Besides, if the purpose was to extenuate the liability of respondent, the only possible and equivalent rule is in malversation cases holding that the restitution of the peculated funds would be analogous to voluntary surrender if it was immediately and voluntarily made before the case was instituted.[26]The evidently is not the situation here.Also the implementation of the penalty provided in the resolution will involve a cumbersome process since, in order to arrive at the final action to be taken by this Court, it will have to wait for a verified report on whether or not respondent complied with the condition subsequent.WHEREFORE, Atty. RosendoMeneses III is hereby DISBARRED.Let a copy of this decision be attached to respondents personal records in this Court and furnished the Integrated Bar of the Philippines, together with all courts in the county.SO ORDERED.