Legal Ethics Cases 101512

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EN BANC

[G.R. No. 108251. January 31, 1996]

CEFERINO S. PAREDES, JR. and MANSUETO J. HONRADA, pet i t ioners, vs. THEHONORABLE SANDIGANBAYAN, Second Division; HONORABLE ANIANODESIERTO, in his official capacity as Special Prosecutor; HONORABLECONRADO M. VASQUEZ, in his official capacity as Ombudsman; andTEOFILO GELACIO, respondents .

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION;MAY BE INITIATED AND CONCLUDED BY DIFFERENT INVESTIGATORS. -Petitioners contend that the filing of charges against them was not recommendedby the prosecutor who conducted the preliminary investigation, but by another onewho, it is alleged, had no part at all in the investigation. There is no basis forpetitioners claim that the resolution was prepared by one who did not take any partin the investigation. What happened here is similar to the trial of a case by one

judge who, without being able to finish the hearing, ceases from office for onereason or another and by necessity the decision is rendered by another judge whohas taken over the conduct of the case. Such an arrangement has never beenthought to raise any question of due process. For what is important is that the judgewho decides does so on the basis of the evidence in record. It does not matter thathe did not conduct the hearing of that case from the beginning.

2. ID.; EVIDENCE; WEIGHT AND SUFFICIENCY; CERTIFICATE; VALUE NOTDIMINISHED BY FAILURE TO ANTICIPATE THAT HIS CERTIFICATE WOULDBE USED IN EVIDENCE. - That Violan gave credence to the Certification of Judge

Ario in concluding that no arraignment had been held in Criminal Case No. 1393 isnot proof that Violan was biased against petitioners. Although Judge Ariosubsequently gave an Affidavit, he never in that Affidavit repudiated what he hadearlier stated. Judge Ario never denied his earlier Certification that Criminal CaseNo. 1393 never reached the arraignment stave, because having learned thatParedes, Jr. had petitioned the Ministry of Justice for a review of the fiscalsresolution, Judge Ario suspended action until March 17, 1986 and in fact the fiscal

later moved for the dismissal of the case. The fact that Judge Ario did notanticipate that his certificate might be used in evidence, much less in the criminalcases now pending in the Sandiganbayan, is not a reason to disregard it. The fact isthat Judge Ario did not retract his previous Certification that there was noarraignment held in Criminal Case No. 1393. If that is the truth, then the fact that henow says he did not anticipate that his certificate would be used in evidence in anycase would not diminish a whit the value of the certificate.


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3. ID.; EVIDENCE; ADMISSIBILITY; RETRACTION OF AFFIDAVIT MADE INVIOLATION OF ATTORNEY-CLIENT PRIVILEGE, INADMISSIBLE. - There isnothing in the resolution of Violan which shows that she based her conclusion (thatpetitioners were probably guilty of falsification of public documents) on Atty.Sansaets retraction. In her resolution, all that she stated is that the confession of

Atty. Sansaet has important bearing in this case. Otherwise she did not cite theconfession as proof of the falsification of public documents. To the contrary, Violanthought that the retraction was made in violation of attorney-client privilege andtherefore, would be inadmissible in evidence. Violan could not, therefore, haverelied on the affidavit of retraction.

4. ID.; DISQUALIFICATION OF JUDGES; DIVERGENCE OF OPINIONS BETWEENA JUDGE AND A PARTYS COUNSEL, NOT A GROUND. - Mere divergence ofopinions between a judge and a partys counsel as to applicable laws and

jurisprudence is not sufficient ground for disqualifying the judge from hearing thecase on the ground of bias and partiality.

5. ID.; ACTIONS; MERE FILING OF SEVERAL CASES BASED ON THE SAMEINCIDENT, NOT FORUM-SHOPPING; TEST. - The mere filing of several casesbased on the same incident does not necessarily constitute forum-shopping. Thetest is whether the several actions filed involve the same transactions, essentialfacts, and circumstances.

6. ID.; ID.; ID.; CASES INVOLVING SUBSTANTIALLY DIFFERENTTRANSACTIONS, FACTS AND CIRCUMSTANCES, NOT FORUM SHOPPING;CASE AT BAR. - Here, although several cases were filed by the same complainantagainst the same defendant and the subject matter of the actions of two of thecases was the same incident (i.e., the application for free patent of petitionerCeferino Paredes, Jr.), the fact is that the several cases involve essentially different

facts, circumstances and causes of action. Thus, Criminal Case No. 1393, whichwas filed in the MCTC of San Francisco,. Agusan del Sur, was for perjury, based onfalse statements allegedly made in 1975 by petitioner Paredes, Jr. in connectionwith his free patent application. Criminal Case No. 13800, which was filed in theSandiganbayan, although based on the filing of the same application for free patent,was for violation of the Anti-graft and Corrupt Practices Act, on the allegation thatpetitioner, as Provincial Attorney, had unduly influenced the Public Land Inspectorto secure the approval of his free patent application. On the other hand, as alreadystated, the present cases (Criminal Case Nos. 17791, 17792 and 17793) are forfalsification of court records pertaining to Criminal Case No. 1393. A.P. Case No.P-90-396 is an administrative case against petitioner Honrada based on the same

incident and facts that are subject of the preceding criminal cases. The rest areincidents of these cases, being the petition for review and motions forreconsideration ifl Criminal Case No. 13800 and A.P. Case No. P-90-396. Thus thepresent cases involve substantially different transactions, facts and circumstancesfrom those involved in the other, though related, cases. Although they arose fromthe same incident, i.e., petitioners public land application, they involve differentissues. It is well settled that a single act may offend against two or more distinct andrelated provisions of law or that the same act may give rise to criminal as well as


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administrative liability. As such, they may be prosecuted simultaneously or one afteranother, so long as they do not place the accused in double jeopardy of beingpunished for the same offense.

7. ID.; CRIMINAL PROCEDURE; DISMISSAL OF ADMINISTRATIVE COMPLAINTDOES NOT NECESSARILY BAR FILING OF CRIMINAL PROSECUTION. -

Petitioners call attention to the fact that the administrative complaint againstpetitioner Honrada was dismissed. They invoke our ruling in Maceda v.Vasquezthat only this Court has the power to oversee court personnelscompliance with laws and take the appropriate administrative action against themfor their failure to do so and that no other branch of the government may exercisethis power without running afoul of the principle of separation of powers. But onething is administrative liability. Quite another thing is the criminal liability for thesame act. Our determination of the administrative liability for falsification of publicdocuments is in no way conclusive of his lack of criminal liability. As we have heldin Tan v. Comelec, the dismissal of an administrative case does not necessarily barthe filing of a criminal prosecution for the same or similar acts which were the

subject of the administrative complaint.8. ID.; ID.; POLITICALLY MOTIVATED FILING OF CRIMINAL CHARGE CANNOT

JUSTIFY PROHIBITION OF CRIMINAL PROSECUTION IF THERE IS EVIDENCETO SUPPORT IT. - That the filing of the charges is politically motivated cannot

justify the prohibition of a criminal prosecution if there is otherwise evidence tosupport them. Here a preliminary investigation of the complaint against petitionerswas held during which petitioners were heard. Their evidence, as well as that ofprivate respondent Gelacio, was considered in great detail in the resolution of GIO IIViolan. Violans resolution was reviewed by Special Prosecutor Erdulfo Querubinwho made his own detailed resolution concurring in the finding of Violan. We cannot

say that, in approving the resolutions of two investigators, the respondentOmbudsman and Special Prosecutor committed an abuse of their discretion.

9. ID.; ID.; PRELIMINARY INVESTIGATION; PURPOSE. -A preliminaryinvestigation is not a trial. The function of the government prosecutor during thepreliminary investigation is merely to determine the existence of probable cause.

10. ID.; ID.; POLITICAL HARASSMENT; REQUISITES; CASE AT BAR. - To warranta finding of political harassment so as to justify the grant of the extraordinary writs ofcertiorari and prohibition, it must be shown that the complainant possesses thepower and the influence to control the prosecution of cases. Here, the prosecutionis handled by the Office of the Ombudsman. Although it is intimated that petitionerCeferino S. Paredes, Jr. is the subject of persecution by his political enemies in

Agusan del Sur, it has not been alleged, much less shown, that his enemies haveinfluence and power over the national prosecution service. To show politicalharassment petitioners must prove that public prosecutor, and not just the privatecomplainant, is acting in bad faith in prosecuting the case or has lent himself to ascheme that could have no other purpose than to place the accused in contemptand disrepute. For it is only if he does so may the prosecutor, in conducting thepreliminary investigation, be said to have deserted the performance of his office to


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determine objectively and impartially the existence of probable cause and thusjustify judicial intervention in what is essentially his province.

APPEARANCES OF COUNSEL

Rolando A. Suarez & Associates for petitioners.

Esmeraldo I. Guloyfor private respondent.

D E C I S I O N

MENDOZA, J .:

This is a petition for certiorari, prohibition and injunction, seeking to set aside theresolution dated December 9, 1992 of the Office of the Ombudsman, denyingpetitioners motion for the reinvestigation of three cases of falsification of publicdocuments which had been filed against petitioners and to restrain the Second Divisionof the Sandiganbayan from hearing the cases.

The cases originated in a complaint filed on January 23, 1990 by Teofilo Gelacio,then vice mayor of San Francisco, Agusan del Sur. Charged with petitioner Paredes,Jr., who was then the provincial governor, were petitioner Mansueto J. Honrada, clerk ofcourt of the Municipal Circuit Trial Court of San Francisco, Agusan del Sur, and Atty.Generoso Sansaet, counsel of petitioner Paredes, Jr. in Criminal Case No. 1393 of theMCTC.

In his complaint Gelacio alleged that MCTC clerk of court Honrada, in conspiracywith petitioner Paredes, Jr. and the latters counsel Atty. Sansaet, certified as true acopy of a Notice of Arraignment dated July 1, 1985 and of the Transcript ofStenographic Notes on July 9, 1985, showing that an arraignment had been held inCriminal Case No. 1393 and issued a certification dated March 24, 1986 to that effect

when in truth no arraignment had been held in that case. In support of his allegation,Gelacio submitted a Certification issued by Judge Ciriaco C. Ario of the MCTC to theeffect that Criminal Case No. 1393 had never reached the arraignment stage before itwas dismissed on motion of the prosecution.1

A preliminary investigation of the complaint was conducted by Public ProsecutorAlbert Axalan who had been deputized to assist the Deputy Ombudsman for Mindanao.Petitioners and Atty. Sansaet, as respondents in the case, filed their respective counter-affidavits. Paredes, Jr. denied the charges. He alleged that their filing was politicallymotivated and that the complainant, Teofilo Gelacio, was being used by his politicalenemies to harass him. For his part, Honrada maintained that an arraignment had

indeed been held in Criminal Case No. 1393 as certified by him. His claim wascorroborated by Atty. Generoso Sansaet, who stated in an affidavit that he was presentduring the arraignment, being the counsel of Paredes, Jr. Sansaet called Judge AriosCertification, denying that there was an arraignment, the product of a faltering mind.2

Prosecutor Axalan submitted his resolution to the Deputy Ombudsmanfor Mindanao, but before it could be acted upon, Atty. Sansaet, one of the respondents,retracted his earlier statement to the effect that Paredes, Jr. had been arraigned beforethe case against him was dismissed. In an Affidavit of Explanations and Rectifications
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dated July 29, 1991, Sansaet claimed that there was really no arraignment held inCriminal Case No. 1393 and that Honrada made false certifications which were used tosupport the dismissal (on the ground of double jeopardy) of Criminal Case No. 13800which was then pending against Paredes, Jr. in the Sandiganbayan.3

As a result of this development, Paredes, Jr. and Honrada, were required tocomment. Paredes, Jr. claimed that the Sansaets aboutface was the result of theirpolitical estrangement.4For his part Honrada insisted that an arraignment in CriminalCase No. 1393 had indeed been held and that in making the certifications in questionhe stated the truth.

On the basis of the evidence of the parties, Gay Maggie Balajadia-Violan, GraftInvestigation Officer of the Office of the Deputy Ombudsman, recommendedon February 24, 1992 that petitioners and Atty. Sansaet be charged with Falsification ofPublic Documents. Her recommendation was indorsed by Deputy Ombudsman CesarNitorreda to Ombudsman Conrado Vasquez, Who, upon the recommendation of ErdulfoQuerubin of the Office of the Special Prosecutor, approved the filing of three

informations for falsification of public documents against Paredes, Jr., Honrada andSansaet with the Sandiganbayan.5The cases were docketed as Criminal Case Nos.17791, 17792 and 17793.

On July 9, 1992, petitioners moved to quash the informations. Their motion wasdenied by the Sandiganbayan in its resolution of August 25, 1992, as was the motion forreconsideration they subsequently filed.

Petitioners next moved for a reinvestigation of the cases. They complained (1) thatthe resolution, recommending the filing of the cases, was not prepared by PublicProsecutor Axalan, who had conducted the preliminary investigation, but by GIO II GayMaggie Balajadia-Violan, who allegedly had no hand in the investigation; (2) that Violan

relied solely on the retraction of Atty. Generoso Sansaet and the Certification of JudgeCiriaco C. Ario and disregarded evidence in favor of petitioners; and (3) thatProsecutor Erdulfo Q. Querubin, who reviewed Violans recommendation, could not beexpected to act fairly because he was the prosecutor in Criminal Case No. 13800 inconnection with which the allegedly falsified records were used and in fact appealed thedismissal of the case to this Court.6

Although these grounds were the same ones invoked by petitioners in their motionto quash, which the Sandiganbayan had denied, the Sandiganbayan nonethelessdirected the prosecution to conduct a reinvestigation of the cases. Accordingly, theOffice of the Ombudsman required complainant, the herein respondent Teofilo Gelacio,to comment on petitioners Motion for Reinvestigation.

In a resolution dated December 9, 1992, Special Prosecution Officer Carlos D.Montemayor recommended denial of petitioners motion. He noted that the mattersraised in the motion were the same ones contained in petitioners motion to quashwhich had already been denied and that in fact a cursory examination of the resolutionof GIO II Gay Maggie Balajadia-Violan shows that the existence of aprima facie casehas been duly established and the same was reviewed by SPO III Erdulfo Querubin andalso the approval of Honorable Conrado M. Vasquez. He held that as no newly -
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discovered evidence or denial of due process had been shown, there was no basis forpetitioners request for a reinvestigation.

Montemayors recommendation was approved by Special Prosecutor AnianoDesierto and Ombudsman Conrado Vasquez. Accordingly the Sandiganbayan set thecases for trial.

The present petition for certiorari, prohibition and injunction was then filed to enjointhe trial of the criminal cases. Petitioners pray that:

(1) Upon the filing of this petition and before its final resolution, to issue a temporaryrestraining order immediately ordering the Sandiganbayan, Second Division, to ceaseand desist from proceeding with the scheduled hearing of this case;

(2) After due hearing, to adjudge that respondents Honorable Special ProsecutorAniano A. Desierto and Honorable Ombudsman Conrado M. Vasquez have committedgrave abuse of discretion, amounting to lack of jurisdiction, in issuing and approving the

questioned resolution dated December 9, 1992 and ordering said resolution denyingpetitioners motion for reinvestigation be annulled and set aside;

(3) To adjudge that the Sandiganbayan, Second Division, is without jurisdiction to tryCriminal Case Nos. 17791, 17792, and 17793 all of which are apparently intended aspolitical harassments against the herein petitioners, particularly as against Ceferino S.Paredes, Jr., and prohibiting the said court from proceeding (with) the hearing of thesaid cases on January 15, 1993, and likewise ordering the said court to dismiss the saidcases, with costs against respondents and Teofilo Gelacio; and

(4) To issue a writ of injunction, thereby making the restraining order permanent, and

prohibiting the respondents and complainant Teofilo Gelacio from committing any act oracts tending to harass and to inflict further damage and injury to petitioners, such as butnot limited to the continuation and further prosecution of said Criminal Cases Nos.17791, 17792, and 17793.

Petitioners contend (1) that their constitutional right to due process was violated atvarious stages of the preliminary investigation; (2) that the prosecutors closed their eyesto the fact that in filing the cases private respondent Teofilo Gelacio engaged in forum-shopping; and (3) that the cases were filed for political harassment and there is in factnoprima facie evidence to hold them answerable for falsification of public documents.7

I.

Anent the first ground, petitioners contend that the filing of charges against themwas not recommended by the prosecutor who conducted the preliminary investigation,but by another one who, it is alleged, had no part at all in the investigation.
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Petitioners contention has no basis in fact. It appears that the preliminaryinvestigation of the complaint filed by Teofilo Gelacio was initially conducted by PublicProsecutor Albert Axalan who had been deputized to assist the Deputy Ombudsmanfor Mindanao in the investigation of graft cases. Axalan prepared a resolution. Therecords do not show what his recommendation was. What is clear, however, is that no

action had been taken on his recommendation in view of the fact that Atty. GenerosoSansaet, one of the respondents in the cases, retracted an earlier statement he hadgiven to the effect that petitioner Ceferino S. Paredes, Jr. had been arraigned inCriminal Case No. 1393 before the case was dismissed. Atty. Sansaet now claimed thatno arraignment had been held after all. This new development required the reopening ofthe investigation (in fact Paredes, Jr. and Honrada were required to comment on theretraction), the reevaluation of the evidence, and the preparation of a new resolution.Gay Maggie Balajadia-Violan, Graft Investigation Officer II of the Office of the DeputyOmbudsman for Mindanao, was designated to conduct the investigation and prepare areport, which she did.

Violans recommendation was indorsed by Deputy Ombudsman Cesar Nitorreda to

Ombudsman Conrado Vasquez, who then referred the matter to Special ProsecutionOfficer Ill Erdulfo Querubin for review. Querubin concurred in the recommendation ofViolan but suggested that, instead of one, three separate informations for falsification ofpublic documents be filed against respondents (Paredes, Jr., Honrada and Sansaet),considering that three documents were involved.

On June 26, 1992, Ombudsman Conrado Vasquez approved the recommendationsof Violan and Querubin. Accordingly three cases were filed against petitioners with theSandiganbayan, where they were docketed as Criminal Case Nos. 17791, 17792 and17793.

There is thus no basis for petitioners claim that the resolution was prepared by one

who did not take any part in the investigation. What happened here is similar to the trialof a case by one judge who, without being able to finish the hearing, ceases from officefor one reason or another and by necessity the decision is rendered by another judgewho has taken over the conduct of the case. Such an arrangement has never beenthought to raise any question of due process. For what is important is that the judgewho decides does so on the basis of the evidence in record. It does not matter that hedid not conduct the hearing of that case from the beginning.

Petitioners nonetheless charge that GIO II Violan and Prosecutor Querubin did nothave such cold neutrality of an impartial judge to be trusted to conduct a fairinvestigation. According to petitioners, Violan gave credence to the Certification issuedby Judge Ciriaco C. Ario when the fact is that Judge Ario subsequently executed anaffidavit, dated November5, 1990, in which he explained that he issued the saidcertificate without expectation that the same would be used as evidence in any caseand that the use of said certificate . . . is against [his] conscience. Worse, it iscontended, Violan considered the Affidavit of Explanations and Rectifications executedby Atty. Sansaet, which she should have disregarded because it was made in violationof the confidentiality of attorney-client communication under Rule 130, 24 (b) of theRules of Court. As for Prosecutor Querubin, they claim that he is the same prosecutor


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who had handled the prosecution of Criminal Case No. 13800 against petitionerParedes, Jr. in the Sandiganbayan and after its dismissal, sought review in this Courtand, therefore, he was biased against petitioners.

That Violan gave credence to the Certification of Judge Ario in concluding that noarraignment had been held in Criminal Case No. 1393 is not proof that Violan was

biased against petitioners. Although Judge Ario subsequently gave an Affidavit, henever in that Affidavit repudiated what he had earlier stated. In his Affidavit he merelystated:

1. That I am the incumbent Municipal Circuit Trial Court Judge in the FirstMunicipal Circuit Trial Court of San Francisco-Rosario-Bunawan, Agusan delSur;

2. That I am the same Ciriaco C. Ario who issued a certificate in CriminalCase No. 1393 entitled Pp. vs. Ceferino S. Paredes, Jr. which certificate wasused as evidence in administrative complaint against Mansueto J. Honrada,in the Administrative Complaint No. A.M. P-90-396 and Criminal Complaint

against Mansueto J. Honrada, incumbent Governor Ceferino S. Paredes, Jr.and Atty. Generoso S. Sansaet before the Ombudsman under Criminal CaseNo. OBM-MIN-90-0053 (sic) entitled Teofilo Gelacio vs. Mansueto J.Honrada, et. al.;

3. That honestly, the said certificate was issued without my expectation that thesame be used as evidence in any case and I be a witness;

4. That the use of said certificate as evidence in the above-mentioned cases isagainst my conscience, more so upon discovery that the cases aforesaid areknown to me to be politically motivated and involves [sic] big time politiciansin Agusan del Sur about whom I am not at liberty to name names for security

reason;5. That in view of all the foregoing, I am not interested to testify in any

investigation to be conducted in connection thereof, either in theadministrative or criminal proceedings.

Thus, Judge Ario never denied his earlier Certification that Criminal Case No. 1393never reached the arraignment stage, because having learned that Paredes, Jr. hadpetitioned the Ministry of Justice for a review of the fiscals resolution, Judge Ariosuspended action until March 17, 1986 and in fact the fiscal later moved for thedismissal of the case.

The fact that Judge Ario did not anticipate that his certificate might be used inevidence, much less in the criminal cases now pending in the Sandiganbayan, is not areason to disregard it. The fact is that Judge Ario did not retract his previousCertification that there was no arraignment held in Criminal Case No. 1393. If that is thetruth, then the fact that he now says he did not anticipate that his certificate would beused in evidence in any case would not diminish a whit the value of the certificate.

Nor was consideration of the retraction of Atty. Sansaet proof that GIO II Violan wasbiased against petitioners. Petitioners contend that Sansaets confession was privileged


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and that Violan herself acknowledged that the affidavit of retraction might beinadmissible in court.

In the first place, there is nothing in the resolution of Violan which shows that shebased her conclusion (that petitioners were probably guilty of falsification of publicdocuments) on Atty. Sansaets retraction. In her resolution, all that she stated is thatthe confession of Atty. Sansaet has important bearing in this case. Otherwise she didnot cite the confession as proof of the falsification of public documents. To the contrary,Violan thought that the retraction was made in violation of attorney-client privilege andtherefore, would be inadmissible in evidence. Violan could not, therefore, have relied onthe affidavit of retraction.

Moreover, the admissibility of this piece of evidence is a question for theSandiganbayan to determine in the event it is used by the prosecution. It is untenable toascribe bias and partiality to the investigator because she considered this retraction inher resolution of the case. Even if she relied on it mere divergence of opinions betweena judge and a partys counsel as to applicable laws and jurisprudence is not sufficient

ground for disqualifying the judge from hearing the case on the ground of bias andpartiality.8

As for Prosecutor Querubin, simply because he was the one who handled theprosecution of Criminal Case No. 13800, in connection with which the documentsallegedly falsified were used by petitioners, is not a reason for supposing he could notact fairly. As any other counsel in a case, it was his duty to act with full devotion to [hisclients] genuine interests, warm zeal in the maintenance and defense of his rights, andthe exertion of his utmost learning and ability.9It cannot be casually assumed thatbecause of his engagement in that case he had lost his objectivity to such an extent thathe forsook his duty to see to it that justice was done and not to act out of vindictiveness.

Indeed, Querubin is a public prosecutor, not a private attorney. In the familiarterminology, he is the representative not of an ordinary party to a controversy but of asovereignty whose obligation to govern impartially is as compelling as its obligation togovern at all and whose interest, therefore, in a criminal prosecution is not that it shallwin a case but that justice shall be done.10It may therefore be assumed that he wasmerely performing an official duty and that nothing personal was involved in hisrecommendation to prosecute the cases.

Above all, it should be stressed that the decision to charge petitioners in theSandiganbayan was the decision not only of one person but of all those who in one wayor another were called upon to act in the cases, namely: Graft Investigation Officer GayMaggie Balajadia-Violan, Deputy Ombudsman Cesar Nitorreda, Ombudsman Conrado

Vasquez, and Special Prosecutor Aniano Desierto. Indeed, Querubins only contributionto the process was to suggest the filing of three separate informations of falsification ofpublic documents against petitioners.

II.
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The second ground for the petition is that the Office of the Ombudsman closed itseyes to the fact that in filing these cases, complainant Teofilo Gelacio is guilty of forum-shopping and that his purpose for the filing of the cases is simply political harassment.To buttress their contention, petitioners call attention to the factual background of thecases.11

According to petitioners, way back in 1984 private respondent Teofilo Gelaciocharged petitioner Paredes, Jr. with perjury on the ground that in 1975 Paredes, Jr.made false statements in an affidavit which he used in support of his application for afree patent. As already noted, the case which was filed with the Municipal Trial Court ofSan Francisco, Agusan del Sur, and docketed there as Criminal Case No. 1393, wasdismissed on March 24, 1986upon motion of the prosecution.

On October 28, 1986, Teofilo Gelacio filed another complaint against petitionerParedes, Jr., then the acting governor of the province. The complaint was for violation of 3 (a) of Republic Act 3019, otherwise known as Anti-Graft and Corrupt Practices Act.

Allegedly, in 1976 petitioner Paredes, Jr., then the Provincial Attorney of Agusan del

Sur, unduly persuaded, induced and influenced the Public Land Inspector to approvehis (Paredes, Jrs) application for a free patent. According to petitioners, this caseinvolved the same application for a free patent of petitioner Paredes, Jr., which was thesubject of Criminal Case No. 1393.

The information was filed by Special Prosecutor Erdulfo Querubin in theSandiganbayan where it was docketed as Criminal Case No. 13800. Petitioner Paredes,Jr. moved to quash the information, but the court denied his motion. He then filed amotion for reconsideration. It was in connection with this motion that the procurement ofallegedly falsified documents, now the subject of prosecution, was made by petitionerParedes, Jr. The documents were used to support his motion for reconsideration.

On August 1, 1991, the Sandiganbayan reconsidered its previous resolution anddismissed Criminal Case No. 13800, although on the ground of prescription. The Officeof the Ombudsman sought a review of the action of the Sandiganbayan, but its petitionwas dismissed by this Court on July 3, 1992 in G.R. No. 101724. The motion forreconsideration filed by the prosecution was likewise denied.

As an offshoot of the execution of these documents, two cases were filed by TeofiloGelacio: (1) an administrative complaint (A.P. Case No. P-90-3 96) for falsificationof public documents which was filed with this Court against Mansueto Honrada, theclerk of the MCTC who made certifications and (2) a complaint for falsification of publicdocuments, initially filed as OMB-MIN-90-0053 with the Office of the Ombudsman andeventually as Criminal Case Nos. 17791, 17792, and 17793 in the Sandiganbayan,

against the petitioners and Atty. Generoso Sansaet.The first case was dismissed for insufficiency of the evidence. But with respect to

the second complaint, Graft Investigation Officer Violan found probable cause toproceed against petitioners and against Atty. Sansaet and so recommended the filing ofa case against them. Her recommendation was approved by the Ombudsman on June26, 1992, although upon the recommendation of Special Prosecutor Querubin threeseparate informations were filed with the Sandiganbayan. Earlier on July 29, 1991, Atty.
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Sansaet, one of the respondents, executed an Affidavit of Explanations andRectifications in which he stated that, contrary to his previous affidavit, there was noarraignment held in Criminal Case No. 1393.

A. Petitioners contend that these cases should be dismissed, being merely thelatest in a series of cases which arose out of the same alleged incident - i.e. that ofallegedly having induced the land inspector to approve his (Paredes, Jr.s) landapplication,12for having been filed in violation of the rules on forum-shopping.Petitioners cite the following statement in Crisostomo v. Securities and ExchangeCommission:13

There is forum-shopping whenever as a result of an adverse opinion in one forum, aparty seeks a favorable opinion (other than by appeal or certiorari) in another. Theprinciple applies not only with respect to suits filed in the courts while an administrativeproceeding is pending as in this case, in order to defeat administrative processes and inanticipation of an unfavorable administrative ruling and a favorable court ruling. . . Aviolation of this rule shall constitute contempt of court and shall be a cause for summary

dismissal of both petitions, without prejudice to the taking of appropriate action againstthe counsel or the party concerned.

The mere filing of several cases based on the same incident does not necessarilyconstitute forum-shopping. The test is whether the several actions filed involve thesame transactions, essential facts, and circumstances.14Here, although several caseswere filed by the same complainant against the same defendant and the subject matterof the actions of two of the cases was the same incident (i.e., the application for freepatent of petitioner Ceferino Paredes, Jr.), the fact is that the several cases involveessentially different facts, circumstances and causes of action.

Thus, Criminal Case No. 1393, which was filed in the MCTC of San Francisco,Agusan del Sur, was for perjury, based on false statements allegedly made in 1975 bypetitioner Paredes, Jr. in connection with his free patent application. Criminal Case No.13800, which was filed in the Sandiganbayan, although based on the filing of the sameapplication for free patent, was for violation of the Anti-graft and Corrupt Practices Act,on the allegation that petitioner, as Provincial Attorney, had unduly influenced the PublicLand Inspector to secure the approval of his free patent application. On the other hand,as already stated, the present cases (Criminal Case Nos. 17791, 17792 and 17793) arefor falsification of court records pertaining to Criminal Case No. 1393. A.P. Case No. P-90-396 is an administrative case against petitioner Honrada based on the same incidentand facts that are subject of the preceding criminal cases. The rest are incidents ofthese cases, being the petition for review and motions for reconsideration in CriminalCase No. 13800 and A.P. Case No. P-90-396.

Thus the present cases involve substantially different transactions, facts andcircumstances from those involved in the other, though related, cases. Although theyarose from the same incident, i.e., petitioners public land application, they involvedifferent issues. It is well settled that a single act may offend against two or moredistinct and related provisions of law15or that the same act may give rise to criminal aswell as administrative liability.16As such, they may be prosecuted simultaneously or one
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after another, so long as they do not place the accused in double jeopardy of beingpunished for the same offense.

Petitioners call attention to the fact that the administrative complaint againstpetitioner Honrada was dismissed. They invoke our ruling in Maceda v. Vasquez17thatonly this Court has the power to oversee court personnels compliance with laws and

take the appropriate administrative action against them for their failure to do so and thatno other branch of the government may exercise this power without running afoul of theprinciple of separation of powers.

But one thing is administrative liability. Quite another thing is the criminal liability forthe same act. Our determination of the administrative liability for falsification of publicdocuments is in no way conclusive of his lack of criminal liability. As we have heldin Tan v. Comelec,18the dismissal of an administrative case does not necessarily barthe filing of a criminal prosecution for the same or similar acts which were the subject ofthe administrative complaint.

Petitioners assertion that private respondent Alterado has resorted to forum-

shopping is unacceptable. The investigation then being conducted by the Ombudsmanon the criminal case for falsification and violation of the Anti-Graft and Corrupt Practices

Act, on the one hand, and the inquiry into the administrative charges by the COMELEC,on the other hand, are entirely independent proceedings. Neither would the results inone conclude the other. Thus an absolution from a criminal charge is not a bar to anadministrative prosecution (Office of the Court administrator v. Enriquez, 218 SCRA 1)or vice versa.19

B. As final argument, petitioners allege that the complaint in Criminal Case Nos.17791, 17792 and 17793 was filed by political enemies of petitioner Paredes, Jr. merelyto harass him and that there is in fact no probable cause to support the prosecution of

these cases. Petitioners cite the following which allegedly indicate that the chargesbelow have merely been trumped up:

(1) The affidavit of Agusan del Sur District Citizens Attorney Lou Nueva, stating thatthen Congressman Democrito O. Plaza instructed Atty. Leonardo Cadiz to secure acertification from Judge Ciriaco C. Ario that no arraignment had been held in CriminalCase No. 1393, threatening that if the judge refused to give the certification, he(Congressman Plaza) would do everything against

Judge Ciriaco C. Ario, including reviving certain cases against JudgeArio;20and (2) The affidavit, dated November5, 1990, of Judge Ario in which hestated that he did not expect that the certificate which he had previously issued would

be used in evidence and that the use of the certificate in the cases below was againsthis conscience, because the cases were politically motivated and he was not going totestify in any investigation concerning such certificate.21At the same time petitionersseek to minimize the retraction of Atty. Sansaet by ascribing political motivation for itsexecution. Petitioner Ceferino Paredes, Jr. claims that Sansaets obsession has been towin in an election and that his loss to petitioner Paredes, Jr. in the May 11,1992 congressional elections was Sansaets sixth defeat. As for private respondentTeofilo Gelacio, petitioners say he is a political leader ofDemocrito Plaza. They claim
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that in 1991 Atty. Sansaet changed political affiliation and allied himselfwith Democrito Plaza and Teofilo Gelacio.

Petitioners argue that the certifications made by the clerk of court with respect to anarraignment allegedly held on July 9, 1985 in Criminal Case No. 1393 is conclusive andcannot be altered by Atty. Sansaets claim to the contrary. They cite what is now Rule132, 23 of the Revised Rules on Evidence, which provides that public instruments areevidence, even against a third person, of the fact which gave rise to their execution andof the date of the latter.

We find the foregoing averments to be unpersuasive. First of all, that the filing of thecharges is politically motivated cannot justify the prohibition of a criminal prosecution ifthere is otherwise evidence to support them. Here a preliminary investigation of thecomplaint against petitioners was held during which petitioners were heard. Theirevidence, as well as that of private respondent Gelacio, was considered in great detailin the resolution of GIO II Violan. Violans resolution was reviewed by SpecialProsecutor Erdulfo Querubin who made his own detailed resolution concurring in the

finding of Violn. We cannot say that, in approving the resolutions of two investigators,the respondent Ombudsman and Special Prosecutor committed an abuse of theirdiscretion.

Indeed, this Court is loath to interfere with the discretion of the Ombudsman unlesssuch discretion is clearly shown to have been abused. As explained in Young v. Officeof the Ombudsman:22

The rule is based not only upon respect for the investigatory and prosecutory powersgranted by the Constitution to the Office of the Ombudsman but upon practicality aswell. Otherwise, the functions of the courts will be grievously hampered by innumerablepetitions assailing the dismissal of investigatory proceedings conducted by the Office of

the Ombudsman with regard to complaints filed before it, in much the same way that thecourts would be extremely swamped if they could be compelled to review the exerciseof discretion on the part of the fiscals or prosecuting attorneys each time they decide tofile an information in court or dismiss a complaint by a private complainant.

There are instances, constituting exceptions to the general rule, when this Court willintervene in the prosecution of cases. Some of these instances were enumeratedin Brocka v. Enrile,23as follows:

a. Where injunction is justified by the necessity to afford protection to theconstitutional rights of the accused; (Hernandez vs. Albano, et al., L-19272,

January 25, 1967, 19 SCRA 95)b. When necessary for the orderly administration of justice or to avoid

oppression or multiplicity of actions; (Dimayuga, et al. vs. Fernandez, 43 Phil.304; Hernandez vs. Albano, supra; Fortun vs. Labang, et al. L-38383, May27 1981, 104 SCRA 607)

c. When there is a prejudicial question which is sub judice;. (De Leon vs.Mabanag, 70 Phil. 202)


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d. When the acts of the officer are without or in excess of authority; (Planas vs.Gil, 67 Phil 62)

e. Where the prosecution is under an invalid law, ordinance or regulation;(Young vs. Rafferty, 33 Phil 556; Yu Co Eng vs. Trinidad, 47 Phil. 385, 389)

f. When double jeopardy is clearly apparent; (Sangalang vs. People andAvendia, 109 Phil. 1140)

g. Where the court has no jurisdiction over the offense; (Lopez vs. City Judge,L-25795, October 29, 1966, 18 SCRA 616).

h. Where it is a case of persecution rather than prosecution; (Rustia vs.Ocampo, CA-G.R. No. 4760, March 25, 1960)

i. Where the charges are manifestly false and motivated by the lust forvengeance; (Recto vs. Castelo, 18 L.J. (1953), citedin Ranoa vs. Alvendia,CA G.R. No. 30720-R, October 8, 1962; cf Guingona, et al. vs. City Fiscal, L-60033,April 4, 1984, 128 SCRA 577).

j. When there is clearly noprima facie case against the accused and motion toquash on that ground has been denied; (Salonga vs. Pano, et al., L-59524, February 18, 1985, 134 SCRA 438); and

k. Preliminary injunction has been issued by the Supreme Court to prevent thethreatened unlawful arrest of petitioners. (Rodriguez vs. Castelo, L-6374,

August 1, 1953) (citedin Regalado, REMEDIAL LAW COMPENDIUM, p. 1881988 Ed).

But none of these instances is present here.

What petitioners raise are questions which go to the weight to be given to theaffidavits by Atty. Nueva and Judge Ario. These are matters for the trial courtsappreciation. A preliminary investigation is not a trial. The function of the governmentprosecutor during the preliminary investigation is merely to determine the existence ofprobable cause.24As we explained in Pilapil vs. Sandiganbayan,25this function involvesonly the following:

Probable cause is a reasonable ground of presumption that a matter is, or may be, well-founded, such a state of facts in the mind of the prosecutor as would lead a person ofordinary caution and prudence to believe, or entertain an honest or strong suspicion,that a thing is so. (Words and Phrases, Probable Cause v. 34, p. 12) The term does notmean actual and positive cause nor does it import absolute certainty. It is merely

based on opinion and reasonable belief. Thus a finding of probable cause does notrequire an inquiry into whether there is sufficient evidence to procure a conviction. It isenough that it is believed that the act or omission complained of constitutes the offensecharged. Precisely, there is a trial for the reception of evidence of the prosecution insupport of the charge.

Secondly, to warrant a finding of political harassment so as to justify the grant of theextraordinary writs of certiorari and prohibition, it must be shown that the complainant


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possesses the power and the influence to control the prosecution of cases. Here, theprosecution is handled by the Office of the Ombudsman. Although it is intimated thatPetitioner Ceferino S. Paredes, Jr. is the subject of persecution by his political enemiesin Agusan del Sur, it has not been alleged, much less shown, that his enemies haveinfluence and power over the national prosecution service.

To show political harassment petitioners must prove that public prosecutor, and notjust the private complainant, is acting in bad faith in prosecuting the case26or has lenthimself to a scheme that could have no other purpose than to place the accused incontempt and disrepute.27For it is only if he does so may the prosecutor, in conductingthe preliminary investigation, be said to have deserted the performance of his office todetermine objectively and impartially the existence of probable cause and thus justify

judicial intervention in what is essentially his province.

WHEREFORE, the petition for certiorari and prohibition is DISMISSED.

SO ORDERED.

Narvasa, C.J. (Chairman), Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo,Puno, Vitug, Kapunan, Francisco, Hermosisima, Jr., and Panganiban, JJ., concur.

A.C. No. 4058 March 12, 1998

BENGUET ELECTRIC COOPERATIVE, INC. complainant,vs.ATTY. ERNESTO B. FLORES, respondent.

PANGANIBAN, J .:The profession of law exacts the highest standards from its members and brooks noviolation of its code of conduct. Accordingly, a lawyer who trifles with judicial processes,engages in forum shopping and blatantly lies in his pleadings must be sanctioned.

The Case

This is an administrative complaint against Atty. Ernesto Flores filed by Benguet ElectricCooperative, Inc. (BENECO) before this Court on July 5, 1993, seeking his removal orsuspension from the bar for forum shopping, which amounted to "grave misconduct, . . .

unduly delaying the administration of justice, and violating with impunity his oath ofoffice and applicable laws and jurisprudence." 1

After the respondent submitted his Comment, dated August 21, 1993, we referred thecase to the Integrated Bar of the Philippines (IBP) on September 27, 1993 forinvestigation, report and recommendation. On August 15, 1997, we received aresolution from the IBP Board of Governors, finding respondent guilty of violating
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Canons 10 and 12 of the Code of Professional Responsibility and recommending hissuspension from the practice of law for a period of six months, viz:

RESOLUTION NO. XII-97-149

Adm. Case NO. 4058

Benguet Electric Cooperative, Inc. vs.

Atty. Ernesto B. Flores

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED andAPPROVED, the Report and Recommendation of the InvestigatingCommissioner in the above-entitled case, hereinmande [sic] part of thisResolution/Decision as Annex "A"; and finding the recommendation therein to befully supported by the evidence on record and the applicable laws and rules,

Respondent Atty. Ernesto Flores is hereby SUSPENDED from the practice of lawfor six (6) months for violating the provision of Canon[s] 10 and 12 of the Code ofProfessional Responsibility. 2

The Facts

Because the parties 3 agreed to dispense with the presentation of testimonial evidence,the case was submitted for resolution on the basis of their documentary evidence. Asfound by Investigating Commissioner Plaridel C. Jose, the facts are as follows:

. . . On February 25, 1993, Labor Arbiter Irenarco Rimando of the National Labor

Relations Commission, Regional Arbitration Branch, Cordillera AdministrativeRegion, Baguio City, issued a Writ of Execution (. . .) in NLRC Case No. RAB-1-0313-84 to enforce the decision rendered by the Supreme Court on May 18,1992 in G.R. No. 89070 (Benguet Electric Cooperative, Inc. vs. NLRC, 209SCRA 55). The Writ of Execution was issued on motion of Benguet ElectricCooperative (BENECO for short) to collect the amount of P344,000.00 which itpaid to Peter Cosalan during the pendency of the case before the SupremeCourt, on the basis of its decision ordering the respondent board members "toreimburse petitioner BENECO any amount that it may be compelled to pay torespondent Cosalan by virtue of the decision of Labor Arbiter Amado T.

Adquilen."

After issuance of the writ of execution, the respondent, as new counsel for thelosing litigant-members of the BENECO Board of Directors, filed a Motion forClarification with the Third Division of the Supreme Court in G.R. No. 89070, theminute resolution to wit: "to note without action the aforesaid motion".

Thereafter, the respondent instituted a suit docketed as Civil Case NO. 2738-R (.. .) with the Regional Trial Court, Branch 7, Baguio City, seeking to enjoin the


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defendants Clerk of Court, et al. from levying on their properties in satisfaction ofthe said writ of execution. That case, however, was dismissed by the PresidingJudge Clarence Villanueva in his Order dated March 18, 1993 (. . .).

Accordingly, the Office of the Clerk of Court, MTC, Baguio City, through Sheriff III

Wilfredo Mendez, proceeded to levy on the properties of the losing boardmembers of BENECO. Thus, a sale at public auction was set on June 1, 1993, at10:00 o'clock in the morning in front of the Baguio City Hall, per Sheriff's Noticeof Sale dated May 4, 1993 (. . .), of the properties of Abundio Awal and Nicasio

Aliping[,] two of the losing members of the Board of Directors of BENECO in theaforementioned case.

Respondent claims in his comment (. . .) that Branch 7, motu proprio, dismissedCivil Case No. 2738-R for lack of jurisdiction on March 18, 1993, which dismissalwas [sic] became final due to respondent's failure to perfect an appeal therefromwhich claim according to the complainant, constitute[s] deliberate

misrepresentation, if not falsehood, because the respondent indeed interposedan appeal such that on May 11, 1993, the RTC 7 of Baguio City transmitted theentire record of Civil Case No. 2738-8 to the Court of Appeals per certifiedmachine copy of the letter transmittal of same date (. . .).

While respondent "never essentially intended to assail the issuance by the NLRCof the Writ of Execution . . . nor sought to undo it" (. . .) the complaint in CivilCase No. 2738-R which he filed prays for the immediate issuance of a temporaryrestraining order and/or preliminary writ of injunction for defendants Clerk ofCourt and Ex-Officio City Sheriff to cease and desist from enforcing the executionand levy of the writ of execution issued by the NLRC-CAR, pending resolution of

the main action in said court (. . .) which complainant likewise claims as anunprocedural maneuver to frustrate the execution of the decision of the SupremeCourt in G.R. No. 89070 in complete disregard of settled jurisprudence thatregular courts have no jurisdiction to hear and decide questions which arise andare incidental to the enforcement of decisions, orders and awards rendered inlabor cases citing the case ofCangco vs. CA, 199 SCRA 677, a display of grossignorance of the law.

On May 26, 1993, respondent again filed for Abundio Awal and Nicasio Alipingwith the Regional Trial Court, Branch 9, La Trinidad, Benguet, separatecomplaints for Judicial Declaration of Family Home Constituted, Ope Lege, andthus Exempt from Levy and Execution the subject properties with Damages, etc.docketed as Civil Cases Nos. 93-F-0414 (. . .) and 93-F-0415 (. . .), which areessentially similar actions to enjoin the enforcement of the judgment rendered inNLRC Case No. RAB-1-0313-84. He also filed an urgent MotionEx-parte (. . .)praying for temporary restraining order in these two (2) cases.

The complainant further alleges that respondent's claim for damages against thedefendant Sheriff is another improper and unprocedural maneuver which is


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likewise a violation of respondent's oath not to sue on groundless suit since thesaid Sheriff was merely enforcing a writ of execution as part of his job.

Recommendation of the IBP

As noted earlier, Investigating Commissioner Plaridel C. Jose recommended, and theIBP Board of Governors concurred, that respondent be suspended from the bar for sixmonths for:

1. Falsehood, for stating in his comment before this Court that the order of the RTCdismissing the complaint in Civil Case No. 2738-R was not appealed on time

2. Failure to comply with Supreme Court Circular No. 28-91 on forum shopping

Commissioner Jose ratiocinated:

A cursory glance of (sic) . . . the complaint filed by the respondent in Civil CaseNo. 2738-R before the RTC of Baguio City, which complaint was signed andverified under oath by the respondent, reveals that it lacks the certificationrequired by Supreme Court Circular No. 28-91 which took effect on January 1,1992 to the effect that "to the best of his knowledge, no such action orproceeding is pending in the Supreme Court, Court of Appeals or differentdivisions thereof or any tribunal or agency. If there is any other action pending,he must state the status of the same. If he should learn that a similar action orproceeding has been filed or pending before the Supreme Court, Court of

Appeals or different divisions thereof or any tribunal or agency[,] he should notifythe court, tribunal or agency within five (5) days from such notice."

Among the other penalties, the said circular further provides that the lawyer mayalso be subjected to disciplinary proceedings for non-compliance thereof.

In sum, it is clear that the respondent violated the provisions of Canon[s] 10 and12 of the Code of Professional Responsibility under which the lawyer owescandor, fairness and good faith to the court and exert[s] every effort andconsider[s] it his duty to assist in the speedy and efficient administration of

justice. 4

This Court's Ruling

We adopt and affirm the recommendation of the IBP suspending the respondent fromthe bar, but we increase the period from six (6) months to one (1) year and six (6)months.

Forum Shopping


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Circular No. 28-91, 5dated September 4, 1991 which took effect on January 1, 1992,requires a certificate of non-forum shopping to be attached to petitions filed before thisCourt and the Court of Appeals. This circular was revised on February 8, 1994. The IBPfound that the respondent had violated it, because the complaint he filed before theRTC of Baguio City "lack[ed] the certification required by Supreme Court Circular No.

28-91."

6

We distinguish. Respondent's failure to attach the said certificate cannot be deemed aviolation of the aforementioned circular, because the said requirement applied only topetitions filed with this Court and the Court of Appeals. 7 Likewise inapplicable is

Administrative Circular No. 04-94 dated February 8, 1994 which extended therequirement of a certificate of non-forum shopping to all initiatory pleadings filed in allcourts and quasi-judicialagencies other than this Court and the Court of Appeals.Circular No. 04-94 became effective only on April 1, 1994, but the assailed complaint forinjunction was filed on March 18, 1993, and the petition for the constitution of a familyhome was instituted on May 26, 1993.

Be that as it may, respondent is still guilty of forum shopping. In Chemphil Export andImport Corporation vs. Court of Appeals, 8 this Court declared that "(t)he rule againstforum shopping has long been established and subsequent circulars 9 of this Courtmerely formalized the prohibition and provided the appropriate penalties againsttransgressors." The prohibition is found in Section 1(e) of Rule 16 and Section 4 of Rule2 of the 1964 Rules of Court, which provide:

Sec. 1. Grounds. Within the time for pleading, a motion to dismiss the actionmay be made on any of the following grounds:

xxx xxx xxx(e) That there is another action pending between the same parties for the samecause;

xxx xxx xxx 10

Sec. 4. Effect of splitting a single cause of action. If two or more complaintsare brought for different parts of a single cause of action, the filing of the first maybe pleaded in abatement of the other or others, in accordance with section 1(e)of Rule 16, and a judgment upon the merits in any one is available as a bar in the

others.

11

The prohibition is also contained in Circular No. 28-91. This circular did not only requirethat a certification of non-forum shopping be attached to the petitions filed before thisCourt or the Court of Appeals; it also decreed that forum shopping constituted directcontempt of court and could subject the offending lawyer to disciplinary action. The thirdparagraph thereof reads:


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3. Penalties.

(a) Any violation of this Circular shall be a cause for the summary dismissal ofthe multiple petition or complaint.

(b)Any willful and deliberate forum shopping by any party and his lawyer wit thefiling of multiple petitions and complaints to ensure favorable action shallconstitute direct contempt of court.

(c) The submission of false certification under Par. 2 of the Circular shall likewiseconstitute contempt of Court, without prejudice to the filing of criminal actionagainst the guilty party. The lawyer may also be subjected to disciplinary

proceedings. (Emphasis supplied.)

The foregoing were substantially reproduced in Revised Circular No. 28-91 12 andAdministrative Circular No. 04-94. 13

In a long line of cases, this Court has held that forum shopping exists when, as a resultof an adverse opinion in one forum, a party seeks a favorable opinion (other than byappeal orcertiorari) in another, 14 or when he institutes two or more actions orproceedings grounded on the same cause, on the gamble that one or the other courtwould make a favorable disposition. 15 The most important factor in determining theexistence of forum shopping is the "vexation caused the courts and parties-litigants by aparty who asks different courts to rule on the same or related causes or grant the sameor substantially the same reliefs." 16

After this Court rendered its Decision 17 in Benguet Electric Cooperative,

Inc. vs. National Labor Relations Commission, et al.

18

and upon motion of BENECO,Labor Arbiter Irenarco R. Rimando issued a writ of execution19 ordering the clerk ofcourt and ex officio city sheriff of the Municipal Trial Court of Baguio City to levy on andsell at public auction personal and real property of the members of the Board ofDirectors of BENECO.

On March 18, 1993, Respondent Flores, acting as counsel for BENECO BoardMembers Victor Laoyan, Nicasio Aliping, Lorenzo Pilando and Abundio Awal, filed withthe RTC an injunction suit praying for the issuance of a temporary restraining order(TRO) "to preserve the status quo as now obtaining between the parties," as well as awrit of preliminary preventive injunction ordering the clerk of court and the ex officio city

sheriff of the MTC of Baguio to "cease and desist from enforcing by execution and levythe writ of execution from the NLRC-CAR, pending resolution of the main action raisedin court." 20

When this injunction case was dismissed, Respondent Flores filed with another branchof the RTC two identical but separate actions both entitled "Judicial Declaration ofFamily Home Constituted, ope lege, Exempt from Levy and Execution; with Damages,etc.," docketed as Civil Case Nos. 93-F-0414 and 93-F-0415. 21 The said complaints


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were supplemented by an "Urgent Motion Ex Parte" 22 which prayed for an order totemporarily restrain Sheriff Wilfredo V. Mendez from proceeding with the auction sale ofplaintiffs' property "to avoid rendering ineffectual and functus [oficio] any judgment of thecourt later in this [sic] cases, until further determined by the court."

Civil Case Nos. 93-F-0414 and 93-F-0415 are groundless suits. Modequillovs. Breva, 23 reiterated in Manacop vs.Court of Appeals, 24 shows the frivolity of theseproceedings:

Under the Family Code, a family home is deemed constituted on a house and lotfrom the time it is occupied as a family residence. There is no need to constitutethe same judicially or extrajudicially as required in the Civil Code. If the familyactually resides in the premises, it is, therefore, a family home as contemplatedby law. Thus, the creditors should take the necessary precautions to protect theirinterest before extending credit to the spouses or head of the family who ownsthe home.

xxx xxx xxx

The exemption provided as aforestated is effective from the time of theconstitution of the family home as such, and lasts so long as any of itsbeneficiaries actually resides therein.

Adhering to the Court's declaration in said cases, the subject properties are deemedconstituted as family homes by operation of law under Article 153 of the Family Code.

The suits for the constitution of a family home were not only frivolous and unnecessary;

they were clearly asking for reliefs identical to the prayer previously dismissed byanother branch of the RTC, i.e, to forestall the execution of a final judgment of the laborarbiter. That they were filed ostensibly for the judicial declaration of a family home was amere smoke screen; in essence, their real objective was to restrain or delay theenforcement of the writ of execution. In his deliberate attempt to obtain the same reliefin two different courts, Respondent Flores was obviously shopping for a "friendly" forumwhich would capitulate to his improvident plea for an injunction and was thereby triflingwith the judicial process. 25

We remind the respondent that, under the Code of Professional Responsibility, 26 hehad a duty to assist in the speedy and efficient administration of justice. 27 The Code

also enjoins him from unduly delaying a case by impeding the execution of a judgmentor by misusing court processes. 28

In consonance with Millare vs. Montero 29 and Garcia vs. Francisco, 30respondentshould be suspended from the practice of law for one year. In Millare, the respondentfiled with different courts a total of six appeals, complaints and petitions which frustratedand delayed the execution of a final judgment. Holding that "respondent 'made amockery of the judicial processes' and disregarded canons of professional ethics in


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intentionally frustrating the rights of a litigant in whose favor a judgment in the case wasrendered [and], thus, 'abused procedural rules to defeat the ends of substantial

justice,'" 31 this Court suspended the respondent from the practice of law for one year.

In Garcia, the respondent was also suspended for one year from the practice of law, for

violating the proscription against forum shopping. This Court held that "he deserve[d] tobe sanctioned, not only as a punishment for his misconduct but also as a warning toother lawyers who may be influenced by his example." 32

Falsehood

The investigating commissioner also held respondent liable for committing a falsehoodbecause, in this administrative case, he stated in his comment that he had not"perfected an appeal on the dismissal" of his petition for injunction. In his said comment,the respondent stated:

Branch 7 (of the RTC) motu proprio, dismissed the case for lack of jurisdiction onMarch 18, 1993. Not having perfected an appeal on the dismissal, the order ofdismissal became final under the Rules 15 days after its receipt by respondenton record, or before April 6, 1993. So that today this case is no longer pending.

xxx xxx xxx

It should be noted that when Civil Case Nos. 93-F-0414 and 93-F-0415 for familyhomes and damages were filed in the court below on May 26, 1993, Civil CaseNO. 2378-R which seems to give basis to the present Complaint was deemedterminated, there being no appeal formally taken and perfected in accordance

with the Rules.xxx xxx xxx

And that precisely was the primal reason why respondent decided not to appealany further anymore [sic] the order of dismissal for lack of jurisdiction of the courtbelow in Civil Case No. 2738, and let it be deemed final by the Rules and

jurisprudence. 33 (Emphasis supplied.)

The indelible fact, however, is that respondent did file an appeal which was perfectedlater on. The original records of the injunction suit had been transmitted to the appellate

court.

34

Moreover, the Court of Appeals issued a resolution dismissing theappeal. 35 Thus, in denying that he had appealed the decision of the RTC, respondentwas making a false statement.

Respondent argues that the withdrawal of his appeal means that no appeal was madeunder Section 2 of Rule 50 of the Rules of Court. The pertinent provisions of Rule50 36 read:


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Sec. 2. Effect of dismissal. Fifteen (15) days after the dismissal of an appeal,the clerk shall return to the court below the record on appeal with a certificateunder the seal of the court showing that the appeal has been dismissed. Uponthe receipt of such certificate in the lower court the case shall stand there asthough no appeal had ever been taken, and the judgment of the said court may

be enforced with the additional costs allowed by the appellate court upondismissing the appeal.

xxx xxx xxx

Sec. 4. Withdrawal of appeal. An appeal may be withdrawn as of right at anytime before the filing of appellee's brief. . . . The withdrawal of an appeal shallhave the same effect as that of a dismissal in accordance with section 2 of thisrule.

Respondent's explanation misses the point. True, he withdrew his appeal. But it is

likewise true that he had actually filed an appeal, and that this was perfected. False thenis his statement that no appeal was perfected in the injunction suit. Worse, he made thestatement before this Court in order to exculpate himself, though in vain, from thecharge of forum shopping.

A lawyer must be a disciple of truth. Under the Code of Professional Responsibility, heowes candor, fairness and good faith to the courts. 37 He shall neither do any falsehood,nor consent to the doing of any. He also has a duty not to mislead or allow the courts tobe misled by any artifice. 38

For this offense, we suspend the respondent from the practice of law for another year.

True, in Ordonio vs.Eduarte,

39

Porac Trucking, Inc., vs. Court ofAppeals 40 and Erectors, Inc. vs. NLRC, 41 we imposed a suspension of only six monthsfor a similar malfeasance. But in Flores' case, his falsehood is aggravated by itsbrazenness, for it was committed in an attempt, vain as it was, to cover up his forumshopping.

Before we close, we note that this simple case was referred to the IBP on September27, 1993. It was deemed submitted for resolution per the investigating commissioner'sorder dated May 10, 1995. However, the investigating commissioner submitted hisreport only on May 5, 1997. Moreover, the IBP transmitted its recommendation to theCourt only through a letter dated July 31, 1997, which was received by the Office of theBar Confidant on August 15, 1997. Why it took the IBP almost four years to finish itsinvestigation of the case and over two years from the date the parties filed their lastpleadings to resolve it escapes us. After all, the case did not require any trial-typeinvestigation, and the parties submitted only documentary evidence to prove or rebuttheir respective cases. Thus, we find it opportune to urge the IBP to hasten thedisposition of administrative cases and to remind it that this Court gives it only ninetydays to finish its investigation, report and recommendation. Should it require more time,it should file with the Court a request for extension, giving the reason for such request.


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WHEREFORE, for trifling with judicial processes by resorting to forum shopping,Respondent Ernesto B. Flores is hereby SUSPENDED from the practice of law for aperiod of ONE (1) YEAR and, for violating his oath and the Canon of ProfessionalResponsibility to do no falsehood, he is SUSPENDED for another period of ONE (1)YEAR, resulting in a total period of TWO (2) YEARS, effective upon finality of this

Decision. He is WARNED that a repetition of a similar misconduct will be dealt withmore severely.

Let a copy of this Decision be included in his files which are with the Office of the BarConfidant, and circularized to all courts and to the Integrated Bar of the Philippines.

SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Romero Bellosillo, Melo, Puno, Vitug, Kapunan,Mendoza, Martinez, Quisumbing and Purisima, JJ., concur.

EN BANC

CONRADO QUE,Complainant,

- versus -

ATTY. ANASTACIO REVILLA, JR.Respondent.

A.C. No. 7054

PUNO, C J.,CARPIO,CORONA,CARPIO MORALES,CHICO-NAZARIO,VELASCO, JR.,NACHURA,LEONARDO-DE CASTRO,BRION,PERALTA,BERSAMIN,DEL CASTILLO,

ABAD, andVILLARAMA, JR., JJ.

Promulgated:

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

D E C I S I O N

PER CURIAM:


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In a complaint for disbarment,[1]Conrado Que (complainant) accused Atty.

Anastacio Revilla, Jr. (respondent) before the Integrated Bar of the

Philippines Committee on Bar Discipline (IBP Committee on Bar Discipline orCBD)

of committing the following violations of the provisions of the Code of Professional

Responsibility and Rule 138 of the Rules of Court:

(1) The respondents abuse of court remedies and processes by filing apetition forcertioraribefore the Court of Appeals (CA), two petitions forannulment of title before the Regional Trial Court (RTC), a petition forannulment of judgment before the RTC and lastly, a petition fordeclaratory relief before the RTC (collectively, subject cases) to assailand overturn the final judgments of the Metropolitan TrialCourt[2](MeTC) and RTC[3]in the unlawful detainer case renderedagainst the respondents clients. The respondent in this regard,repeatedly raised the issue of lack of jurisdiction by the MeTC and RTCknowing fully-well that these courts have jurisdiction over the unlawfuldetainer case. The respondent also repeatedly attacked thecomplainants and his siblings titles over the property subject of theunlawful detainer case;

(2) The respondents commission of forum-shopping by filing the subjectcases in order to impede, obstruct, and frustrate the efficientadministration of justice for his own personal gain and to defeat theright of the complainant and his siblings to execute the MeTC and RTC

judgments in the unlawful detainer case;

(3) The respondents lack of candor and respect towards his adversary andthe courts by resorting to falsehood and deception to misguide, obstructand impede the due administration of justice. The respondent assertedfalsehood in the motion for reconsideration of the dismissal of thepetition for annulment of judgment by fabricating an imaginary orderissued by the presiding judge in open court which allegedly denied themotion to dismiss filed by the respondents in the said case. Thecomplainant alleged that the respondent did this to cover up his lack ofpreparation; the respondent also deceived his clients (who were all

squatters) in supporting the above falsehood.[4]

(4) The respondentswillful and revolting falsehood that unjustly malignedand defamed the good name and reputation of the late Atty. AlfredoCatolico (Atty. Catolico), the previous counsel of the respondentsclients.
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(5) The respondents deliberate, fraudulent and unauthorized appearancesin court in the petition for annulment of judgment for 15 litigants, threeof whom are already deceased;

(6) The respondents willful and fraudulent appearance in the second

petition for annulment of title as counsel for the Republic ofthe Philippines without being authorized to do so.

Additionally, the complaint accused the respondent of representing fifty-two (52)

litigants in Civil Case No. Q-03-48762 when no such authority was ever given to him.

The CBD required the respondent to answer the complaint.

In his Answer,[5] the respondent declared that he is a member of the Kalayaan

Development Cooperative (KDC) that handlespro bono cases for the underprivileged,

the less fortunate, the homeless and those in the marginalized sector in Metro Manila.

He agreed to take over the cases formerly handled by other KDC members. One of

these cases was the unlawful detainer case handled by the late Atty. Catolico where the

complainant and his siblings were the plaintiffs and the respondents present clients

were the defendants.

With respect to paragraph 1 of the disbarment complaint, the respondent

professed his sincerity, honesty and good faith in filing the petitions complained of; he

filed these petitions to protect the interests of his clients in their property. The

respondent asserted that these petitions were all based on valid grounds the lack of

jurisdiction of the MeTC and the RTC over the underlying unlawful detainer case,

theextrinsic fraud committed by the late Atty. Catolico, and the extrinsic fraud

committed by the complainant and his family against his clients; he discovered thatthe allegedly detained property did not really belong to the complainant and his family

but is a forest land. The respondent also asserted that his resort to a petition for

annulment of judgment and a petition for declaratory relief to contest the final judgments
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of the MeTC and RTC were all parts of his legal strategy to protect the interests of his

clients.

On the allegations of falsehood in the motion for reconsideration of the order ofdismissal of the petition for annulment of judgment (covered by paragraph 3 of the

disbarment complaint), the respondent maintained that his allegations were based on

his observations and the notes he had taken during the proceedings on what the

presiding judge dictated in open court.

The respondent denied that he had made any unauthorized appearance in court

(with respect to paragraphs 5 and 6 of the disbarment complaint). He claimed that the

52 litigants in Civil Case No. Q-03-48762 were impleaded by inadvertence; he

immediately rectified his error by dropping them from the case. On the petition for

annulment of judgment, the respondent claimed that a majority (31 out of 49) of the

litigants who signed the certification constituted sufficient compliance with the rules on

forum-shopping. The respondent likewise denied having represented the Republic of

the Philippines in the second petition for annulment of title. The respondent pointed out

that there was no allegation whatsoever that he was the sole representative of both the

complainants (his clients) and the Republic of the Philippines. The respondent pointed

out that the petition embodied a request to the Office of the Solicitor General to

represent his clients in the case.[6]

The respondent submitted that he did not commit any illegal, unlawful, unjust,

wrongful or immoral acts towards the complainant and his siblings. He stressed that he

acted in good faith in his dealings with them and his conduct was consistent with his

sworn duty as a lawyer to uphold justice and the law and to defend the interests of his

clients. The respondent additionally claimed that the disbarment case was filed because

the complainants counsel, Atty. Cesar P. Uy (Atty. Uy), had an axe to grind against him.

Lastly, the respondent posited in his pleadings[7]before the IBP that the present

complaint violated the rule on forum shoppingconsidering that the subject cases were
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also the ones on which a complaint was filed against him in CBD Case No. 03-1099

filed by Atty. Uy before the IBP Committee on Bar Discipline. The respondent also

posited that the present complaint was filed to harass, ridicule and defame his good

name and reputation and, indirectly, to harass his clients who are marginalizedmembers of the KDC.

The Findings of the Investigating Commissioner

Except for the last charge of unauthorized appearance on behalf of 52 litigants in

Civil Case No. Q-03-48762, Investigating Commissioner Renato G.

Cunanan[8](Investigating Commissioner Cunanan) found all the charges against the

respondent meritorious. In his Report and Recommendation, he stated:

While an attorney admittedly has the solemn duty to defend andprotect the cause and rights of his client with all the fervor and energywithin his command, yet, it is equally true that it is the primary duty of thelawyer to defend the dignity, authority and majesty of the law and thecourts which enforce it. A lawyer is not at liberty to maintain and defendthe cause of his clients thru means, inconsistent with truth and honor. Hemay not and must not encourage multiplicity of suits or brazenly engage inforum-shopping.[9]

On the first charge on abuse of court processes, Investigating Commissioner

Cunanan noted the unnecessary use by the respondent of legal remedies to forestall

the execution of the final decisions of the MTC and the RTC in the unlawful detainer

case against his clients.[10]

On the second charge, the Investigating Commissioner ruled that the act of the

respondent in filing two petitions for annulment of title, a petition for annulment ofjudgment and later on a petition for declaratory relief were all done to prevent the

execution of the final judgment in the unlawful detainer case and constituted prohibited

forum-shopping.[11]
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Legal Ethics Cases 101512

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