RED NOTES 2001-2002

POLITICAL LAW
Public Office

JUDGE FRANCISCO IBAY v. VIRGINIA LIM A.M. No. P-99-1309, S !" #$ % 11, &000
F'(")* Judge Ibay charged Virginia Lim, Stenographic Reporter, with serious neglect of duty and grave misconduct. Judge recommends that Lim be dismissed from service by reason of the following: . !or conviction of a crime involving moral turpitude "libel# against another $udge% &. !or gross neglect of duty "failure to transcribe the stenographic notes of ' proceedings in ( inherited cases# '. !or grave misconduct "refusal to transcribe the stenographic notes# ). !or flagrant violation of an *dministrative +ircular "Lim traveled abroad despite her heavy bac,log# -he consultant of the .ffice of the +ourt *dministrator ".+*# recommended that respondent Lim be dismissed from the service. -he .+* adopted said recommendation. I))+ * /hether respondent should be dismissed from service by reason of her conviction in the said charges. , -.* She should be dismissed. 0o less than the +onstitution mandates that all public officers and employees should serve with responsibility, integrity and efficiency. Indeed, public office is a public trust. In the case at bar, respondent Lim1s performance as a court employee is clearly wanting. It is evident from the record that she has shown herself to be less than 2ealous in the performance of the duties of her office which demands utmost dedication and efficiency. 3er lac,adaisical attitude betrays her inefficiency and incompetence and amounts to gross misconduct. Respondent1s unfitness for public service is further bolstered by her failure to manifest to his superior, herein complainant Judge Ibay, utmost respect and obedience to the latter1s orders and instructions issued pursuant to the duties of the office the Judge holds by disregarding the latter1s orders to transcribe the long4pending stenographic notes and choosing instead to go on leave, even when her application for leave has not been approved. -his improper behavior of respondent betrays her abominable disrespect to the court itself. Such a demeanor is a failure of circumspection demanded of every public official and employee. Respondent Lim failed to reali2e that the performance of her duties are essential to the prompt and proper administration of $ustice. 0ot only does her neglect delay the administration of $ustice% it also erodes public faith in the $udiciary. -hus, there is no room in the court or government for that matter for respondent Lim1s ,ind of an employee. *ll the foregoing considered, respondent must be meted the ma5imum penalty because all involved in the dispensation of $ustice must live up to the strictest standard of integrity, probity, uprightness, honesty and diligence in the public service. /36R6!.R6, respondent Virginia 7. Lim is found 78IL-9 of gross neglect of duty, grave misconduct, violation of administrative circulars of the Supreme +ourt and conduct grossly pre$udicial to the best interest of the service, and she is hereby :IS;ISS6: from the service, with forfeiture of all benefits and with pre$udice to re4 employment in any branch or agency of the government, including government4owned and controlled corporations.

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Right to Peacably Assemble; Civil Service; Right to Strike

ACOSTA v). CA G.R. No. 13&0// J+0 &/, &000

F'(")* <etitioners are teachers from different public schools in ;etro ;anila. .n various dates in September and .ctober ==>, petitioners did not report for wor, and instead, participated in mass actions by public school teachers at the Liwasang ?onifacio for the purpose of petitioning the government for redress of their grievances. !or failure to comply with the return4to4wor, order issued by then Secretary of 6ducation petitioners were administratively charged. Secretary +ari@o found petitioners guilty as charged and ordered their immediate dismissal from the service. -he +S+ modified the decision of the Secretary of 6ducation by finding 6verdina *costa guilty of +onduct <re$udicial to the ?est Interest of the Service and changing the penalty to suspension. -he petitioners contended that their only offense was to e5ercise their constitutional right to peaceably assemble and petition the government for redress of grievances. I))+ * /hether the petitioners engaged in peaceable assembly to petition the government for redress of grievances. , -.* -he teachers were e5ercising their right to peaceably assemble. 3owever, the petitioners are being penali2ed not because they e5ercised their right of peaceable assembly and petition for redress of grievances but because of their successive unauthori2ed and unilateral absences which produced adverse effects upon their students for whose education they are responsible. -he actuations of petitioners definitely constituted conduct pre$udicial to the best interest of the service, punishable under the +ivil Service law, rules and regulations -hese mass actions were to all intents and purposes a stri,e% they constituted a concerted and unauthori2ed stoppage of, or absence from, wor, which it was the teachers1 sworn duty to perform, underta,en for essentially economic reasons. -he ability to stri,e is not essential to the right of association. In the absence of statute, public employees do not have the right to engage in concerted wor, stoppages for any purpose. Suspension of public services, however temporary, will inevitably derail services to the public, which is one of the reasons why the right to stri,e is denied government employees.. ?esides, there are efficient and non4 disruptive avenues, other than the mass actions in Auestion, whereby petitioners could petition the government for redress of grievances. Civil Service Commission; Term of Office

GAMINDE v). COA G.R. No. 110332, D ( #$ % 13, &000 F'(")*

In ==', the <resident of the <hilippines appointed petitioner -helma <. 7aminde, ad interim, +ommissioner of the +ivil Service +ommission. She assumed office on June &&, ==', after ta,ing an oath of office. .n September >B, ==', the +ommission on *ppointment, +ongress of the <hilippines confirmed the appointment. In her appointment paper, her term was supposed to e5pire on !ebruary &, ===. .n !ebruary &), ==(, petitioner sought clarification from the .ffice of the <resident. In reply to her reAuest, the +hief <residential Legal +ounsel, opined that it would e5pire on !ebruary >&, &>>>. Relying on said advisory opinion, petitioner remained in office after !ebruary >&, ===. .n !ebruary >), ===, +S+ +hairman de Leon, wrote the +ommission on *udit reAuesting opinion on whether or not 7aminde and her co4terminous staff may be paid their salaries notwithstanding the e5piration of their appointments on !ebruary >&, ===. .n !ebruary (, ===, the 7eneral +ounsel, +ommission on *udit, issued an opinion that Cthe term of +ommissioner 7aminde has e5pired on !ebruary >&, === as stated in her appointment conformably with the constitutional intent.D +orrespondingly the salaries and emoluments pertaining to petitioner and her co4terminous staff were disallowed.

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I))+ )* . /hether the term of office of 7aminde, as +ommissioner, +ivil Service +ommission, e5pired on !ebruary >&, ===, as stated in the appointment paper, or on !ebruary >&, &>>>. &. /hether she is entitled to the salary and other emoluments. , -.* -he terms of the first +hairmen and +ommissioners of the +onstitutional +ommissions under the =(B +onstitution must start on a common date, irrespective of the variations in the dates of appointments and Aualifications of the appointees, in order that the e5piration of the first terms of seven, five and three years should lead to the regular recurrence of the two4year interval between the e5piration of the terms. *pplying the foregoing conditions to the case at bar, we rule that the appropriate starting point of the terms of office of the first appointees to the +onstitutional +ommissions under the =(B +onstitution must be on !ebruary >&, =(B, the date of the adoption of the =(B +onstitution. In case of a belated appointment or Aualification, the interval between the start of the term and the actual Aualification of the appointee must be counted against the latter. In the law of public officers, there is a settled distinction between CtermC and Ctenure.C -he term of an office must be distinguished from the tenure of the incumbent. -he term means the time during the officer may claim to hold office as of right, and fi5es the interval after which the several incumbents shall succeed one another. -he tenure represents the term during which the incumbent actually holds the office. -he term of office is not affected by the hold4over. -he tenure may be shorter than the term for reasons within or beyond the power of the incumbent. <etitioner 7aminde succeeded Samilo 0. ?arlongay who held the initial five4year term, from !ebruary B, =((, until !ebruary >&, ==&. -hus, 7amindeEs term e5pired on !ebruary >&, ===. *lthough it was only on June &&, ==' that she assumed office, she is bound by the term of the appointment she accepted, e5piring !ebruary >&, ===. In this connection, the letter dated *pril >B, ==(, clarifying that her term would e5pire on !ebruary >&, &>>>, was in error. /hat was submitted to the +ommission on *ppointments was a nomination for a term e5piring on !ebruary >&, ===. -hus, the term of her successor must be deemed to start on !ebruary >&, ===, and e5pire on !ebruary >&, &>>F. &. -he term of office of ;s. -helma <. 7aminde as +ommissioner, +ivil Service +ommission, under an appointment e5tended to her by Ramos on June , ==', e5pired on !eb >&, ===. 3owever, she served as de facto officer in good faith until !eb >&, &>>>, and thus entitled to receive her salary and other emoluments for actual service rendered. Election Law; ailure of Elections

BAS,ER v). COMMISSION ON ELECTIONS G.R. No. 1390&/ A!%3- 1&, &000
F'(")* <etitioner 3ad$i Rasul ?atador ?asher and <rivate Respondent *bul,air *mpatua were both candidates for the position of <unong ?arangay in ?arangay ;aidan, -ugaya, Lanao del Sur during the ;ay &, ==B barangay election. -he election was declared a failure and a special one was set for June &, ==B. *gain, the election failed and was reset to *ugust '>, ==B. *ccording to the +omelec, the voting started only around =:>> p.m. on *ugust '>, ==B because of the prevailing tension in the said locality. 6lection .fficer :iana :atu4Imam reported that she was allegedly advised by some religious leaders not to proceed with the election because Cit might trigger bloodshed.C She also claimed that the town mayor, Cbeing too hysterical, yelled and threatened me to declare GaH failure of election in ;aidan.C SubseAuently, the armed followers of the mayor pointed their guns at her and her military escorts, who responded in li,e manner towards the former. -he parties were then pacified at the <0< headAuarters. /ith the arrival of additional troops, the election officer proceeded to ;aidan to conduct the election starting at =:>> p.m. until the early morning of the following day. -he holding of the election at that particular time was allegedly announced Cover the mosAue.C -he tally sheet for the said CelectionC showed the following results: private respondent I &J> votes% petitioner I J votes% and ?aulo *bdul Ra2ul, a third candidate I > votes. <rivate respondent was proclaimed winner.

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<etitioner then filed a <etition before the +omelec praying that the election be declared a failure. *lleging that no election was conducted in the place and at the time prescribed by law. +omelec dismissed the <etition. I))+ * ./hether or not the election held at around >:>> o1cloc, in the evening after the *cting 6lection .fficer had verbally declared or announced a failure of election in <recinct 0o. & is contrary to law, rule and $urisprudence% &./hether or not the election held at the residence of an 654mayor far from the designated <olling <lace of <recinct 0o. &, ?arangay ;aidan, -ugaya% Lanao del Sur is legal or valid% './hether or not the proclamation of the private respondent as the duly elected <unong ?arangay of ?arangay ;aidan and the seven "B# ?arangay Kagawads is illegal, null and void ab initio.C. , -.* <etition is meritorious. -he peculiar set of facts in the present case show not merely a failure of election but the absence of a valid electoral e5ercise. .therwise stated, the disputed CelectionC was illegal, irregular and void. . *s to the time for voting, the law provides that CGtHhe casting of votes shall start at seven o1cloc, in the morning and shall end at three o1cloc, in the afternoon, e5cept when there are voters present within thirty meters in front of the polling place who have not yet cast their votes, in which case the voting shall continue but only to allow said voters to cast their votes without interruption.C Section &&, *rticle IV of +omelec Resolution 0o. &=B also specifies that the voting hours shall start promptly at B:>> a.m. and end at ':>> p.m. of the same day. 3owever, the CelectionC for ?arangay ;aidan officials was supposed to have been held after =:>> p.m. of *ugust '>, ==B until the wee hours of the following day. +ertainly, such schedule was not in accordance with law or the +omelec Rules. -he +omelec erred in relying on the second sentence of Section &&, *rticle IV of +omelec Resolution &=B . -his presupposes that the election commenced during the official time and is simply continued beyond ':>> p.m. in order to accommodate voters who are within thirty meters of the polling place, already waiting for their turn to cast their votes. -he strained interpretation espoused by the +omelec encourages the conduct of clandestine Celections,C for it virtually authori2es the holding of elections beyond normal hours, even at midnight when circumstances could be more threatening and conducive to unlawful activities. .n a doctrinal basis, such nocturnal electoral practice discourages the people1s e5ercise of their fundamental right of suffrage, by e5posing them to the dangers concomitant to the dead of night, especially in far4flung barangays constantly threatened with rebel and military gunfires. &. -he place where the voting was conducted was illegal. Section )& of the .mnibus 6lection +ode provides that CGtHhe chairman of the board of election tellers shall designate the public school or any other public building within the barangay to be used as polling place in case the barangay has one election precinct . . .C -hey failed to specify the e5act venue. In fact, to this date, even the respondents have failed to disclose where e5actly the voting was conducted. '. *s election officer, 6lection .fficer :atu4Imman has no authority to declare a failure of election. Indeed, only the +omelec itself has legal authority to e5ercise such awesome power. *n election officer alone, or even with the agreement of the candidates cannot validly postpone or suspend the elections In sum, the CelectionC supposedly held for officials of ?arangay ;aidan cannot be clothed with any form of validity. It was clearly unauthori2ed and invalid. 0ot only did the suspensionLpostponement not comply with the procedure laid down by law and the +omelec Rules, neither was there sufficient notice of the time and date when and the place where it would actually be conducted. -he electorate of ?arangay ;aidan was not given due notice that the election would push through after =:>> p.m. that same day. Such abbreviated announcement Cover the mosAueC at such late hour did 0.constitute sufficient notice to the electorate. It was thus as if no election was held at all. 3ence, its results could not determine the winning punong barangay. -he proclamation of private respondent as punong barangay is V.I:. Respondent +omelec is .R:6R6: to conduct a special election for punong barangay of ;aidan, -ugaya, Lanao del Sur as soon as possible.

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Office of the Ombu!sman; "uris!iction

BALUYOT v). ,OLGAN4A G.R. No. 135361, F $. 9, &000

F'(")* <etitioner ?aluyot is the chapter administrator of the <hil. 0at1l Red +ross "<0R+#4?ohol +hapter. * team of auditors from the <0R+ headAuarters found a cash shortage in the funds of its ?ohol chapter. <etitioner was held accountable for the shortage. Respondent 3olgan2a, a member of the board of directors of the ?ohol chapter sues petitioner for malversation under *rt. & B of the R<+ before the .ffice of the .mbudsman. *n administrative case for dishonesty was also opened upon recommendation of respondent ;ilitante, a graft investigator officer. <etitioner moved to dismiss on the ground that the .ffice of the .mbudsman lac,s $urisdiction. I))+ * /hether the .mbudsman has $urisdiction over a malversation case involving an chapter administrator of the <0R+ , -.* 96S. <0R+ is a gov1t owned and controlled corporation with an original charter under R* =Jas amended. -he test to determine whether a corporation is gov1t owned or controlled, or private in nature is simple. Is it created by its own charter for the e5ercise of a public function or by incorporation under the general corporation lawM -hose with special charters are gov1t corps whose employees are under the $urisdiction of the +ivil Service commission and are compulsory members of the 7SIS. -he <0R+ is not impliedly converted to a private corporation simply because its charter is amended to vest in it the authority to secure loans, be e5empted from all duties, ta5es, fees, and be allotted one lottery draw a year by the <+S. for the support of its disaster relief operation. +learly then, the .mbudsman has $urisdiction pursuant to Sec. ' of the .mbudsman *ct of =(= "R*FBB># which provides that the C.mbudsman and his :eputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against officers or employees of the 7overnment,N, including gov1t4owned or controlled corporationsN Locus Stan!i Legislative ranchise DEL MAR v). P,ILIPPINE AMUSEMENT AND GAMING CORPORATION

#$R$ %o$ &'()*(+ %ovember )*+ ),,,

60 ?*0+ <80., J. F'(")* -his is a consolidation of two petitions. -he <hilippine *musement and 7aming +orporation "<*7+.R# is a government4owned and controlled corporation organi2ed and e5isting under <: (F= which was enacted on July , =('. <ursuant to Sections and > of <.:. 0o. (F=, respondent <*7+.R reAuested for legal advice from the Secretary of Justice as to whether or not it is authori2ed by its +harter to operate and manage $ai4alai frontons in the country. In its .pinion 0o. FB, Series of ==F dated July J, ==F, the Secretary of Justice opined that Cthe authority of <*7+.R to operate and maintain games of chance or gambling e5tends to $ai4alai which is a form of sport or game played for bets and that the +harter of <*7+.R amounts to a legislative franchise for the purpose.C Similar favorable opinions were received by <*7+.R from the .ffice of the Solicitor 7eneral per its letter dated June ', ==F and the .ffice of the 7overnment +orporate +ounsel under its .pinion 0o. J> dated June ), ==F. -hus, <*7+.R started the operation of $ai4alai frontons. <*7+.R entered into an *greement with private respondents ?elle Jai *lai +orporation "?6LL6# and !ilipinas 7aming 6ntertainment -otali2ator +orporation "!IL7*;6# wherein it was agreed that ?6LL6 will ma,e available to <*7+.R the reAuired infrastructure facilities including the main fronton, as well as provide the needed

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funding for $ai4alai operations with no financial outlay from <*7+.R, while <*7+.R handles the actual management and operation of $ai4alai. <etitioner Raoul ?. del ;ar filed a <etition for <rohibition to prevent respondent <*7+.R from managing andLor operating the $ai4alai or ?asAue pelota games, by itself or in agreement with ?elle +orporation, on the ground that the controverted act is patently illegal and devoid of any basis either from the +onstitution or <*7+.R1s own +harter. <etitioners !ederico S. Sandoval II and ;ichael -. :efensor filed a <etition for In$unction, which see,s to en$oin respondent <*7+.R from operating or otherwise managing the $ai4alai or ?asAue pelota games by itself or in $oint venture with ?elle +orporation, for being patently illegal, having no basis in the law or the +onstitution, and in usurpation of the authority that properly pertains to the legislative branch of the government. In this case, a <etition in Intervention was filed by Juan ;iguel Oubiri alleging that the operation by <*7+.R of $ai4alai is illegal because it is not included in the scope of <*7+.R1s franchise which covers only games of chance. <etitioners Raoul ?. del ;ar, !ederico S. Sandoval II, ;ichael -. :efensor, and intervenor Juan ;iguel Oubiri, are suing as ta5payers and in their capacity as members of the 3ouse of Representatives representing the !irst :istrict of +ebu +ity, the Lone +ongressional :istrict of ;alabon40avotas, the -hird +ongressional :istrict of Pue2on +ity, and the -hird +ongressional :istrict of ?u,idnon, respectively. I))+ )* . :oes the +ourt have $urisdiction to ta,e original cogni2ance of a petition for in$unction considering that it is not one of those actions specifically mentioned in Section , Rule JF of the ==B Rules of +ivil <rocedureM &. ;ay the petitioners file the petitions at bar as ta5payers and as legislators, considering that the operation of $ai4alai does not involve the disbursement of public fundsM '. :oes <*7+.R1s legislative franchise include the right to manage and operate $ai4alaiM , -.* . 96S. It is a5iomatic that what determines the nature of an action and hence, the $urisdiction of the court, are the allegations of the pleading and the character of the relief sought. * cursory perusal of the petition filed in 7.R. 0o. '(=(& will show that it is actually one for <rohibition under Section & of Rule FJ for it see,s to prevent <*7+.R from managing, maintaining and operating $ai4alai games. 6ven assuming, arguendo, that it is an action for in$unction, this +ourt has the discretionary power to ta,e cogni2ance of the petition at bar if compelling reasons, or the nature and importance of the issues raised, warrant the immediate e5ercise of its $urisdiction. It cannot be gainsaid that the issues raised in the present petitions have generated an oasis of concern, even days of disAuiet in view of the public interest at sta,e. In -ano, et al. vs. Socrates, et al., this +ourt did not hesitate to treat a petition for certiorari and in$unction as a special civil action for certiorari and prohibition to resolve an issue of far4reaching impact to our people. -his is in consonance with our case law now accorded near religious reverence at rules of procedure are but tools designed to facilitate the attainment of $ustice such that when its rigid application tends to illustrate rather than promote substantial $ustice, this +ourt has the duty to suspend their operation. &. 96S, the petitioners may file the petitions at bar as legislators but not as ta5payers. * party suing as a ta5payer must specifically prove that he has sufficient interest in preventing the illegal e5penditure of money raised by ta5ation. In essence, ta5payers are allowed to sue where there is a claim of illegal disbursement of public funds, or that public money is being deflected to any improper purpose, or where petitioners see, to restrain respondent from wasting public funds through the enforcement of an invalid or unconstitutional law. In the petitions at bar, the *greement entered into between <*7+.R and private respondents ?6LL6 and !IL7*;6 will show that all financial outlay or capital e5penditure for the operation of $ai4alai games shall be provided for by the latter. ?e that as it may, in line with the liberal policy of this +ourt on locus standi when a case involves an issue of overarching significance to our society, we find and so hold that as members of the 3ouse of Representatives, petitioners have legal standing to file the petitions at bar. In the instant cases, petitioners complain that the operation of $ai4alai constitutes an infringement by <*7+.R of the legislature1s e5clusive power to grant franchise. -o the e5tent the powers of +ongress are impaired, so is the power of each

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member thereof, since his office confers a right to participate in the e5ercise of the powers of that institution, so petitioners contend. -he contention commands our concurrence for it is now settled that a member of the 3ouse of Representatives has standing to maintain inviolate the prerogatives, powers and privileges vested by the +onstitution in his office. '. 0.. -he charter of <*7+.R does not give it any franchise to operate and manage $ai4alai. * CfranchiseC is a special privilege conferred upon a corporation or individual by a government duly empowered legally to grant it. It is a privilege of public concern which cannot be e5ercised at will and pleasure, but should be reserved for public control and administration, either by the government directly, or by public agents, under such conditions and regulations as the government may impose on them in the interest of the public. * franchise thus emanates from a sovereign power and the grant is inherently a legislative power. It may, however, be derived indirectly from the state through an agency to which the power has been clearly and validly delegated. In such cases, +ongress prescribes the conditions on which the grant of a franchise may be made. -hus, the manner of granting the franchise, to whom it may be granted, the mode of conducting the business, the character and Auality of the service to be rendered and the duty of the grantee to the public in e5ercising the franchise are almost always defined in clear and uneAuivocal language. In the absence of these defining terms, any claim to a legislative franchise to operate a game played for bets and denounced as a menace to morality ought to be re$ected. * historical study of the creation, growth and development of <*7+.R will readily show that it was never given a legislative franchise to operate $ai4alai. <*7+.R is engaged in business affected with public interest. -he phrase Caffected with public interestC means that an industry is sub$ect to control for the public good% it has been considered as the eAuivalent of Csub$ect to the e5ercise of the police power.C <erforce, a legislative franchise to operate $ai4alai is imbued with public interest and involves an e5ercise of police power. -he familiar rule is that laws which grant the right to e5ercise a part of the police power of the state are to be construed strictly and any doubt must be resolved against the grant. -he legislature is regarded as the guardian of society, and therefore is not presumed to disable itself or abandon the discharge of its duty. -hus, courts do not assume that the legislature intended to part away with its power to regulate public morals. -he presumption is influenced by constitutional considerations. +onstitutions are widely understood to withhold from legislatures any authority to bargain away their police power for the power to protect the public interest is beyond abnegation. ;elo, <anganiban, <ardo, ?uena, 7on2aga4Reyes and 9nares4Santiago, JJ ., concur. Se-arate O-inions :*VI:6, JR., +.J.: In my Separate .pinion in 7.R. 0o. J>)) "*lfredo Lim vs. 3on. !elipe <acAuing# and 7.R. 0o. B&F' "-eofisto 7uingona vs. 3on. Vetino Reyes#, &)> S+R* F)=, F(J, I reiterated my prior view in a supplemental concurring opinion I submitted in the earlier case, 7.R. 0o. J>)) that $ai alai is not a game of chance, but a sport based on s,ill. ?etting on the results thereof can only be allowed by +ongress, and I am not aware of any new law authori2ing such betting. ;y reading of the charter of the <*7+.R fails to disclose a grant of a congressional authority to allow betting on the results of $ai alai. *ccordingly, all that the <*7+.R may do is operate and conduct the $ai alai, but in no case can it allow betting on the results thereof without obtaining a statutory authority for the purpose. VI-87, J.: 7ambling, universally regarded to be a threat to the moral fiber of any society, is aptly a prohibited activity in the <hilippines. -he Revised <enal +ode, as well as succeeding amendatory laws, ma,es Cbetting, game4fi5ing, point4shaving or game machinationC on games of chance or s,ill unlawful. -he +ivil +ode additionally states

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that Cbetting on the result of sports, athletic competitions, or games of s,ill may be prohibited by local ordinances.C & *n e5ception to the rule was introduced by the former <resident !erdinand 6. ;arcos when he, in the e5ercise of his legislative powers under the =B' +onstitution, created the <hilippine *musement 7ames +orp. "C<*7+.RC# ' and granted it franchise to Coperate and maintain gambling casinos, clubs, and other recreation or amusement places, sports, gaming pools, . . .C ) <*7+.R was authori2ed to implement, among other things, an ob$ective Cto establish and operate clubs and casinos for amusement and recreation, including games of chance, which "might# be allowed by law within the territorial $urisdiction of the <hilippines.C J <*7+.R has entered into a $oint venture agreement with ?elle Jai *lai +orporation "C?6LL6C# and !ilipinas 7aming 6ntertainment -otali2ator +orporation "C!IL7*;6C# in the operation and management $ai alai games. -he two firms, under the agreement, would also furnish the $ai alai fronton facilities. I see in the $oint venture agreement a situation that places ?6LL6 and !IL7*;6 in active endeavor with <*7+.R in conducting $ai alai games. /ithout a congressional franchise of its own, neither ?6LL6 nor !IL7*;6 can lawfully engage into the activity. Indeed, the grant of a franchise is a purely legislative act that cannot be delegated to <*7+.R without violating the +onstitution. -he thesis rests on the ma5im potestas delegata non delegari potest. *ny constitutionally delegated sovereign power constitutes not only a right but a duty to be performed by the delegate, the legislature in this case, through the instrumentality of its own $udgment. * further delegation of such power to <*7+.R would constitute a negation of this duty in violation of the trust reposed in the delegate mandated to discharge it directly. -he broad authority then of <*7+.R under its charter to enter into agreements could not have been meant to empower <*7+.R to pass on or to share its own franchise to others. 3ad its charter intended otherwise, <*7+.R would have been itself virtually capable of e5tending franchise rights and thereby be a recipient of an unlawful delegation of legislative power. !or the foregoing considerations, I vote to grant the petitions in these cases insofar as they see, to en$oin respondent <hilippine *musement and 7aming +orporation "C<*7+.RC# from operating $ai alai or ?asAue <elota games through respondents ?elle Jai alai +orporation "C?6LL6C# andLor !ilipinas 7aming 6ntertainment -otali2ator +orporation "C!IL7*;6C# or through any other agency, but I vote to deny the same insofar as they li,ewise see, to prohibit <*7+.R from itself managing or operating the game. ;endo2a, J . concurs.

.issenting O-inion

DE LEON, JR., J.
Respondent <*7+.R maintains that petitioners have no standing to file a ta5payer1s suit since there is no showing that these cases involve e5penditure of public funds. In Kilosbayan Incorporated vs. ;orato, we have categorically stated that ta5payers, voters, concerned citi2ens and legislators, as such, may bring suit only " # in cases involving constitutional issues and "&# under certain conditions. -a5payers are allowed to sue, for e5ample, where there is a claim of illegal disbursement of public funds or where a ta5 measure is assailed as unconstitutional. +oncerned citi2ens can bring suits if the constitutional Auestion they raise is of transcendental importance which must be settled early. /hile herein petitioners and intervenor claim illegal disbursement of public funds by <*7+.R in the resumption of the operations of $ai alai games, there is nothing on record to show involvement of any e5penditure of public money on the part of <*7+.R. In fact, what is essentially raised as an issue is whether <*7+.R has the reAuisite franchise to operate $ai alai games and whether it is authori2ed under its charter to enter into $oint venture agreements with private corporations. ;ore specifically, under the $oint venture *greement dated June B, === ' it is private respondent corporations ?6LL6 and !IL7*;6 which will provide infrastructure facilities to <*7+.R on a rent free basis. I cannot see how the +ourt could treat the sub$ect petitions as ta5payers1 suits when there is nothing, apart from petitioners1 bare allegations, to prove that the operations of $ai alai would involve e5penditure of public

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funds. 0either does the pivotal issue raised relate to a constitutional Auestion inasmuch as only the scope of <*7+.R1s franchise, and not its validity, is assailed. -he issue as to whether a member of +ongress may bring suit in his capacity as a lawma,er, alleging impairment of any of the powers, rights and privileges belonging to +ongress, is not novel. +iting the *merican cases of +oleman vs. ;iller and 3olt2man vs. Schlesinger, we declared in <hilconsa vs. 6nriAue2 that Cto the e5tent that the powers of +ongress are impaired, so is the power of each member thereof, since his office confers a right to participate in the e5ercise of the powers of that institution.C -here is no dispute that the power to grant franchises rests within the legislative branch of government. In a legal or narrower sense, the term CfranchiseC is more often used to designate a right or privilege conferred by law. -he view ta,en in a number of cases is that to be a franchise, the right possessed must be such as cannot be e5ercised without the e5press permission of a sovereign power, that is, a privilege or immunity of a public nature which cannot be legally e5ercised without legislative grant. 3aving the prerogative to grant franchises, +ongress also has the power to revo,e or repeal or alter franchises. +onsidering that whatever $udgment may be rendered in the interpretation of the law defining the scope of <*7+.R1s franchise would have a bearing on petitioners1 prerogative, as members of +ongress, to consider whether to modify, amend, alter, or repeal, through legislation, <*7+.R1s franchise, I believe, that in limited sense, that petitioners have the reAuisite standing to bring these suits at bar. Respondent <*7+.R, nevertheless, insists that an action for in$unction is not among the cases or proceedings originally cogni2able by the Supreme +ourt. In$unction is a $udicial writ, process or proceeding whereby a party is ordered to do or refrain from doing a particular act. It may be an action in itself brought specifically to restrain or command the performance of an act or it may be $ust a provisional remedy for and as an incident in the main action which may be for other reliefs. -he action for in$unction should not be confused with the ancillary and provisional remedy of preliminary in$unction which cannot e5ist e5cept only as an incident of an independent action or proceeding. In a main action for permanent in$unction, a party may as, for preliminary in$unction pending the final $udgment. 0otwithstanding procedural lapses as to the appropriateness of the remedies prayed for in the petitions filed before 8s, however, this +ourt can ta,e primary $urisdiction over the said petitions in view of the importance of the issues raised. In some instances, this +ourt has even suspended its own rules and e5cepted a case from their operation whenever the higher interests of $ustice so demanded. -he ob$ect of all interpretation and construction of statutes is to ascertain the meaning and intention of the legislature, to the end that the same may be enforced. -his meaning and intention must be sought first of all in the language of the statute itself. !or it must be presumed that the means employed by the legislature to e5press its will are adeAuate for the purpose and do e5press that will correctly. If the language is plain and free from obscurity, it must be ta,en as meaning e5actly what it says, whatever may be the conseAuences. +ontrary to the ma$ority opinion that <*7+.R1s franchise is limited only to the management and operation of casinos, a cursory reading of the aboveAuoted legal provision would readily show that the e5tent and nature of <*7+.R1s franchise is so broad that literally all ,inds of sports and gaming pools, including $ai alai, are covered therein. * sport is defined as Ca game or contest especially when involving individual s,ill or prowess on which money is sta,ed.C 7aming, on the other hand, is defined as Cthe act or practice of playing games for sta,es.C <.:. 0o. (F= has made e5press mention of bas,etball and football as e5ample of gaming pools. ?as,etball and football, however, li,e $ai alai are games of s,ills. +onsidering that under Section of <.:. 0o. (F=, games of s,ill li,e bas,etball and football have been lumped together with the word ClotteriesC $ust before the word Cetc.C and after the words Cgaming pools,C it may be deduced from the wording of the law that when bets or sta,es are made in connection with games of s,ill, they may be classified as games of chance under the coverage of <*7+.R1s franchise. -he meaning of the phrase Cet ceteraC or its abbreviation Cetc.C depends largely on the conte5t of the instrument, description and enumeration of the matters preceding the term and sub$ect matter to which it is applied, and when used in a statute, the words should be given their usual and natural signification. +onseAuently, $ai alai, otherwise ,nown as Cgame of ?asAue pelotaC, while in itself is not per se a game of chance, may be categori2ed as a game of chance when bets are accepted as a form

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of gambling. It is a cardinal rule of statutory construction that when words and phrases of a statute are clear and uneAuivocal, their meaning must be determined from the language employed and the statute must be ta,en to mean e5actly what it says. 6ven if the +ourt is fully persuaded that the legislature really meant and intended something different from what it enacted, and that the failure to convey the real meaning was due to inadvertence or mista,e in the use of language, yet, if the words chosen by the legislature are not obscure or ambiguous, but convey a precise and sensible meaning "e5cluding the case of obvious clerical errors or elliptical forms of e5pression#, then the +ourt must ta,e the law as it finds it, and give it its literal interpretation, without being influenced by the probable legislative meaning lying at the bac, of the words. In that event, the presumption that the legislature meant what it said, though it be contrary to the fact, is conclusive. /hile there is no specific mention of $ai alai as among the games of chance which <*7+.R can operate under its franchise, the language of the law defining the scope of <*7+.R1s franchise is broad enough to include the operations of $ai alai as a game of chance. /here the franchise contains no words either defining or limiting the powers which the holder may e5ercise, such holder has, by implication, all such powers as are reasonably necessary to enable it to accomplish the purposes and ob$ect of its creation. It is well recogni2ed that the principle of strict construction does not preclude a fair and reasonable interpretation of such charter and franchises, nor does it $ustify withholding that which satisfactorily appears to have been intended to be conveyed to the grantee. +onsidering that <*7+.R1s franchise is broad enough to cover the operation and management of $ai alai games as well as supervised betting activities in connection therewith, let us come to the Auestion as to whether <*7+.R may enter into a $oint venture agreement with the private corporations, ?6LL6 and !IL7*;6, to operate, manage and conduct $ai alai games as well as supervised betting activities both at the fronton site and selected off4fronton betting stations. <*7+.R1s right to enter into management contracts is not limited to those relating to the efficient operation of gambling casinos under Section of <.:. 0o. (F= which reads: S6+-I.0 . Scope of !ranchise. I In addition to the rights and privileges granted it under the preceding section, this !ranchise shall entitle the corporation to do and underta,e the following: " # enter into operating andLor managing contracts with any registered and accredited company possessing the ,nowledge, s,ill and e5pertise and facilities to insure the efficient operation of gambling casinos . . . * $oint venture is an association of persons or companies $ointly underta,ing some commercial enterprise I generally, all contribute assets and share ris,s. It reAuires a community of interests in the performance of the sub$ect matter, a right, and governs the policy connected therewith, and duty, which may be altered by agreement to share in both profit and losses. In this $urisdiction, a $oint venture is a form of partnership and is thus governed by the law on partnerships. +learly, in Section of <.:. 0o. (F=, the powers granted to <*7+.R is broad enough to include the power to enter into a $oint venture agreement with private corporations li,e ?6LL6 and !IL7*;6 relating to the operation, management and conduct not only of gambling casinos but also of those relating to $ai alai as legali2ed gambling. /here the language of the statute is clear, it is the duty of the court to enforce it according to the plain meaning of the word. -here is no occasion to resort to other means of interpretation. It is not allowable to interpret what has no need of interpretation, and, when the words have a definite and precise meaning, to go elsewhere in search of con$ecture in order to restrict or e5tend the meaning. /hen an act is e5pressed in clear and concise terms, and the sense is manifest and leads to nothing absurd, there can be no reason not to adopt the sense which it naturally presents. -o go elsewhere in search of con$ectures in order to find a different meaning is not so much to interpret the law as to elude it. 8nder the rule potestas delegata non delegari potest a delegated power cannot be delegated. -his is based upon the ethical principle that such delegated power constitutes not only a right but a duty to be performed by the delegate through the instrumentality of his own $udgment acting immediately upon the matter of legislation and not through the intervening mind of another. 3owever, the said rule is inapplicable in the

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case at bar. -he legislative grant of franchise to <*7+.R has not accorded unto the latter legislative powers nor Auasi4legislative powers. -he $oint venture *greement was entered by <*7+.R with !IL7*;6 and ?6LL6 pursuant to the powers granted under <.:. 0o. (F= to <*7+.R to Center into, ma,e, perform, and carry out contracts of every ,ind and for any purpose pertaining to the business of the corporation . . . with any person, firm or corporation.C 8nder the $oint venture *greement, ?6LL6 and !IL7*;6 will provide financial reAuirements and technical assistance to <*7+.R in connection with the use of their operational facilities. <*7+.R however shall still manage, regulate and control all aspects of $ai alai operations. -he sub$ect $oint venture *greement is in consonance with the powers granted to <*7+.R that it may Cdo anything and everything necessary, proper, desirable, convenient or suitable for the accomplishment of any of the purposes or attainment of any of the ob$ects or the furtherance of any of the powers herein stated, either alone or in association with other corporations, firms or individuals.C !inally, while on one hand, $ai alai, as a form of legali2ed gambling under the control and supervision of <*7+.R, does not promote good morals, on the other hand it is e5pected to provide entertainment to the public and much needed revenues to the government. In balancing those two apparently conflicting interests, it must be stressed that courts are not supposed to pass upon and do not pass upon Auestions of wisdom or e5pediency of legislation, for it is not within their province to supervise and ,eep legislation within the bounds of propriety. -hat is primarily and e5clusively a legislative concern. *ny shortcoming of a statute is for the legislature alone to correct by appropriate enactment. ?ellosillo, Kapunan and Puisumbing, JJ ., concur.

LABOR LAW
ABASOLO ".'-. v). NLRC G. R. No. 11/162, Nov #$ % &9, &000
F'(")* <etitioners have been under the employ of L8-.R+. for several years their employment was abruptly interrupted when -*?*+*L6R* too, over L8-.R+.ES operations. <etitioners were caught unaware of the sudden change of ownership and its effect on the status of their employment due to the closure of L8-.R+. as a result of the sale and turnover to -*?*+*L6R*. -he Labor *rbiter dismissed the complaint finding that petitioners are not entitled to the benefits under *rticle &(' of the Labor +ode since L8-.R+. ceased to operate due to serious business losses and, furthermore, -*?*+*L6R* has assumed the sonority rights of the petitioners and other employment liabilities of L8-.R+.. *ffirming the dismissal of the complaints, the 0LR+ held that petitioners are not entitled to the protection of *rt. &(' of the Labor +ode since there was no closure of establishment or termination of services to spea, of. It declared that there was no dismissal but a Q non4hiring due mainly to GpetitionersH own violation Q. ;oreover, the benefits of *rt. &(' apply only to regular employees, not seasonal wor,ers li,e petitioners. I))+ )* . /hether or not *rticle &(' of the Labor +ode is applicable &. /hether petitioners are regular employees, as defined by law

, -.* . -he employment of petitioners with respondent L8-.R+. was technically terminated when -*?*+*L6R* too, over the formers tobacco4redrying operations in =='. -he records spea, of a sale to -*?*+*L6R* in ==' under conditions evidently so concealed that petitioners were not formally notified of the impending sale of L8-.R+.Es tobacco re4drying operations to -*?*+*L6R* and its attendant conseAuences with respect to their continued employment status under -*?*+*L6R*. -hey came to ,now of the fact of that sale only when -*?*+*L6R* too, over the said tobacco re4dying operations.

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&. <etitioners were regular employees of L8-.R+. when their employment was terminated. -he nature of oneEs employment does not depend solely on the will or word of the employer. 0or on the procedure for hiring and the manner of designating the employee, but on the nature of the activities to be performed by the employee, considering the employees nature of business and the duration and scope of wor, to be done. In the case at bar, while it may appear that the wor, of petitioners is seasonal, in as much as petitioners have served the company for many years , some for over &> years, performing services necessary and indispensable to L8-.R+.ES business, serve as badges of regular employment. ;oreover, the fact that petitioners do not wor, continuously for one whole year but only for the duration of the tobacco season does not detract from considering them in regular employment since in a litany of cases this +ourt has already settled that seasonal wor,ers who are called to wor, from time to time and are temporarily laid off during off4season are not separated from service in said period, but are merely considered on leave until reemployed.

Termination of Em-loyment; Loss of Trust an! Confi!ence NO7OM v. NLRC G.R. No. 110013, J+-8 1/, &000
!acts: +armelita 0o,om was employed as a manager by Rento,il for its 3ealthcare :ivision. Later, Rento,ilEs officers received information that fictitious invoices were sent to Rento,ilEs clients whose contracts have already been terminated. -he fictitious invoices were allegedly made to inflate the gross revenues of said :ivision to ma,e up for the shortfall in its target revenues. Initial findings showed that 0o,om was involved in the anomaly so she was placed on preventive suspension. -hereafter, 0o,om admitted the irregularities and, in her written e5planation, she said that she had no e5planation and that she was leaving her fate up to management. :uring the hearing conducted by Rento,il management, 0o,om failed to appear despite notice. . *fter the investigation, it was found out that 0o,om was aware, tolerated and in fact participated in the production of fictitious invoices. -hus, 0o,omEs employment was terminated. 0o,om filed a complaint for illegal suspension, illegal dismissal and non4payment of salaries against Rento,il before the Labor *rbiter and prayed for reinstatement, payment of bac,wages, damages and attorneyEs fees. L* ruled in favor of 0o,om. .n appeal, 0LR+ reversed the ruling of the L*. +* affirmed the 0LR+ decision holding that 0o,om was legally dismissed for loss of confidence. Issue: . /hether the acts of 0o,om constitute willful breach of trust that will $ustify her dismissal. &. /hether she was afforded due process. 3eld: -he dismissal is legal. -o constitute a valid dismissal, two reAuisites must concur, namely: "a# the dismissal must be for any of the causes provided for in *rticle &(& of the Labor +ode and "b# the employee must be afforded an opportunity to be heard and defend himself. . In the case at bar, 0o,omEs position demands a high degree of responsibility that necessarily includes unearthing of fraudulent and irregular activities. 0o,omEs failure to detect and report to Rento,il the fraudulent activities in her division as well as her failure to give a satisfactory e5planation on the e5istence of the said irregularities constitute Cfraud or willful breach of the trust reposed on her by her employer or duly authori2ed representativeC I one of the $ust causes in terminating employment as provided for by paragraph c, *rticle &(' of the Labor +ode, as amended. +oncomitantly, petitioner1s actuations betrayed the utmost trust and confidence reposed on her by the respondent company. /e cannot, therefore, compel Rento,il to retain the employment of herein petitioner who is shown to be lac,ing in candor, honesty and efficiency reAuired of her position. Loss of confidence is a valid ground for dismissing an employee and proof beyond reasonable doubt of the employee1s misconduct is not reAuired to dismiss him on this charge. It is enough that there be 1some basis1 for such loss of confidence, or that

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the employer has reasonable grounds to believe, if not entertain the moral conviction that the employee concerned is responsible for the misconduct and that the nature of his participation therein rendered him absolutely unworthy of the trust and confidence demanded of his position. &. :ue process was e5ercised by Rento,il since 0o,om was given an opportunity to answer the accusations against her although she did not avail of the same.

T %#30'"3o0 o9 E#!-o8# 0": M'0'; # 0" P% %o;'"3v LEONARDO ".'-. v). NLRC GR NO.1&2303, JUNE 15,&000
F'(")* *urelio !uerte was originally employed by defendant R690*L:.1S ;*RK6-I07 +.R<.R*-I.0 as a muffler specialist, receiving <)J.>> per day. 3e was later appointed as supervisor with an increased compensation of < &&.>> a day. .n the other hand, :anilo Leonardo was hired by defendant as an auto4aircon mechanic at a salary rate of <'J.>> per day. 3is pay was increased to <=>.>> a day when he attained regular status si5 months later. !uerte alleges that he was he was informed by the company1s personnel manager that he would be transferred to its Sucat plant due to his failure to meet his sales Auota, and for that reason, his supervisor1s allowance would be withdrawn. !or a short time, complainant reported for wor, at the Sucat plant% however, he protested his transfer, subseAuently filing a complaint for illegal termination. .n his part, Leonardo alleges that he was also approached by the same personnel manager who informed him that his services were no longer needed. 3e, too, filed a complaint for illegal termination. I))+ * /hether the dismissal based on the failure to meet the sales Auota is legal. , -.* -he practice of a company in laying off wor,ers because they failed to ma,e the wor, Auota has been recogni2ed in this $urisdiction. (Philippine American Embroideries vs. Embroidery and Garment Workers, 26 SC A 6!", 6!#$ . In the case at bar, the petitioners1 failure to meet the sales Auota assigned to each of them constitute a $ust cause of their dismissal, re%ardless o& the permanent or probationary stat's o& their employment. !ailure to observe prescribed standards of wor,, or to fulfill reasonable wor, assignments due to inefficiency may constitute $ust cause for dismissal. Such inefficiency is understood to mean failure to attain wor, goals or wor, Auotas, either by failing to complete the same within the allotted reasonable period, or by producing unsatisfactory results. -his management prerogative of reAuiring standards may be availed of so long as they are e5ercised in good faith for the advancement of the employer1s interest.

T %#30'"3o0 o9 E#!-o8# 0": M'0'; # 0" P% %o;'"3v APARENTE v). NLRC G.R. No. 11652&, A!%3- &6, &000
F'(")* <etitioner was an employee by private respondent corporation until he was terminated for alleged violation of company rules and regulations, which was premised from the fact that, sometime prior his termination, petitioner while driving without driverEs license sideswiped a ten4year old girl using the companyEs truc,. 3ospital e5penses was shouldered by the company but was not reimbursed by the insurance company. -hereafter, private respondent conducted an investigation of the incident where petitioner was given the opportunity to e5plain his side and to defend himself, and in result thereof, petitioner was dismissed from employment for having violated the company rules and regulations for blatant disregard of established control procedures resulting in company damages of considerable amount. *ggrieved, petitioner instituted a case for illegal dismissal against private respondent before the Labor *rbiter.

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I))+ * /hether the dismissal is valid and lawfulM

, -.* -he dismissal is valid. <etitionerEs dismissal was $ustified by the companyEs rules and regulations. It is recogni2ed that company policies and regulations, unless shown to be grossly oppressive or contrary to law, are generally valid and binding on the parties and must be complied with until finally revised or amended, unilaterally or preferably through negotiation, by competent authority. -he +ourt has upheld a company1s management prerogatives so long as they are e5ercised in good faith for the advancement of the employer1s interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements. *lso, under the Labor +ode, in order that an employer may dismiss an employee on the ground of willful disobedience, there must be concurrence of at least two reAuisites: the employee1s assailed conduct must have been willful or intentional, and the order violated must have been reasonable, lawful, made ,nown to the employee and must pertain to the duties which he had been engaged to discharge. /hich are present in this case, as evidenced by the willful act of petitioner in driving without a valid driver1s license, which is a clear violation of the companyEs rules and regulations.

Right of Self/Organi0ation; Coverage PAPER INDUSTRIES CORPORATION OF T,E P,ILIPPINES v). LAGUESMA G.R. No. 10163/, A!%3- 1&, &000
F'(")* +omplainant <aper Industries +orporation of the <hilippines "<I+.<# is engaged in the manufacture of paper and timber products. It has over =,>>> employees, =)) of whom are supervisory and technical staff employees. ;ore or less )(B of these supervisory and technical staff employees are signatory members of the private respondent <I+.<4?islig Supervisory and -echnical Staff 6mployees 8nion "<?S-S68#. .n *ugust =, =(=. <?S-S68 instituted a <etition for +ertification 6lection to determine the sole and e5clusive bargaining agent of the supervisory and technical staff employees of <I+.< for collective bargaining agreement "+?*# purposes. -he Secretary of the Labor issued a Resolution which upheld the ;ed4*rbiter1s .rder dated September B, =(=, with modification allowing the supervising and staff employees in +ebu, :avao and Iligan +ity to participate in the certification election. :uring the pre4election conference on January (, ==>, <I+.< Auestioned and ob$ected to the inclusion of some section heads and supervisors in the list of voters whose positions it averred were reclassified as managerial employees in the light of the reorgani2ation effected by it. !ollowing the submission by the parties of their respective position papers and evidence on this issue, the ;ed4*rbiter issued an .rder, holding that supervisors and section heads of the complainant are managerial employees and therefore e5cluded from the list of voters for purposes of certification election. I))+ * /hether the managerial employees are disAualified from $oining or forming a union represented by co4respondent <?S-S68, in view of a supervening event brought about by the changes in the organi2ational structure. , -.* -hey are disAualified. In 8nited <epsi4+ola Supervisory 8nion v. Laguesma, we had occasion to elucidate on the term Cmanagerial employees.C ;anagerial employees are ran,ed as -op ;anagers, ;iddle ;anagers and !irst Line ;anagers. -op and ;iddle ;anagers have the authority to devise, implement and control strategic and operational policies while the tas, of !irst4Line ;anagers is simply to ensure that such policies are carried out by the ran,4and4file employees of an organi2ation. 8nder this distinction, Cmanagerial employeesC therefore fall in two "&# categories, namely, the CmanagersC per se composed of -op and ;iddle ;anagers, and the CsupervisorsC composed of !irst4Line ;anagers. -hus, the mere fact that an employee is designated QmanagerC does not ipso facto ma,e him one. :esignation should be reconciled with the actual $ob description of the employee, for it is the $ob description that determines the nature of employment.

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* thorough dissection of the $ob description of the concerned supervisory employees and section heads indisputably show that they are not actually managerial but only supervisory employees since they do not lay down company policies. <I+.<1s contention that the sub$ect section heads and unit managers e5ercise the authority to hire and fire is ambiguous and Auite misleading for the reason that any authority they e5ercise is not supreme but merely advisory in character. -heirs is not a final determination of the company policies inasmuch as any action ta,en by them on matters relative to hiring, promotion, transfer, suspension and termination of employees is still sub$ect to confirmation and approval by their respective superior. -hus, where such power, which is in effect recommendatory in character, is sub$ect to evaluation, review and final action by the department heads and other higher e5ecutives of the company, the same, although present, is not effective and not an e5ercise of independent $udgment as reAuired by law.

T %#30'"3o0 o9 E#!-o8# 0": M'0'; # 0" P% %o;'"3v OSS SECURITY AND ALLIED SERVICES, INC. VS. NLRC 3&2 SCRA 126 G.R. NO. 11&62& FEB. 9, &000
F'(")* <rivate Respondent 6den Legaspi wor,ed as a lady security guard of .SS Security *gency from June F, =(J to January F, =(F. .n January B, =(F petitioner VasAue2 acAuired the assets and properties of .SS Security *gency and absorbed some of its personnel, including Legaspi. She was assigned to render security services at the V; condominium in ;a,ati. In a memorandum addressed to petitionersE company president, the building administrator of said condominium complained of the la5ity of the guard in enforcing security measures. 3e reAuested to reorgani2e their guards assigned to the building. In compliance therewith, petitioner reassigned Legaspi and another lady security guard to other units or detachments where vacancy e5ists. -hen again, Legaspi was reassigned to another company in Ri2al. 3owever, she did not report for duty at her new assignment. Legaspi filed her complaint for underpayment and constructive dismissed. -he Labor arbiter rendered his decision declaring that LegaspiEs transfer was not sanctioned by law, hence illegal and tantamount to un$ust dismissal. <rivate respondent appealed the decision to the 0LR+ who affirmed the decision of the Labor *rbiter. 3ence, this petition. I))+ * /hether the public respondent 0LR+ committed grave abuse of discretion amounting to lac, or e5cess of $urisdiction in affirming the L*Es ruling that the transfer of assignment of Legaspi by petitioner was illegal tantamount to un$ust dismissal , -.* -he transfer of an employee ordinarily is within the ambit of management prerogatives. 3owever, a transfer amounts to a constructive dismissal when the transfer is unreasonable, inconvenient, or pre$udicial to the employee, and it involves a demotion in ran, or diminution of salaries, benefits and other privilege. In the case at bar, nowhere in the record does it show that the transfer of .SS Security was anything but done in good faith, without grave abuse of discretion and in the best interest of the business. 0o ;alice should be imputed form the fact that Legaspi was relieved of her assignment and, a day later, assigned a new post. /hen security guard is placed Qoff4 detailD or on QfloatingD status, in security agency parlance, it means waiting to be posted, Legaspi has not even been Qoff detailD for a wee, when she filed her complaint. .SS Security, also proved that such transfer was effected in good faith to comply with the reasonable reAuest of its client. -hus, there was no basis to order reinstatement and bac, wage inasmuch as Legaspi was not constructively dismissed. 0either is she entitled to the award of money claim for underpayment.

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CIVIL LAW
Partnershi-; Evi!ence ,EIRS OF TAN ENG 7EE v). CA
F'(")* -an 6ng Kee died September ', =(). 3is heirs filed suit against the decedent1s brother -an 6ng Lay for accounting, liAuidation and winding up of the alleged partnership formed after /orld /ar II between -an 6ng Kee and -an 6ng Lay. *llegedly, after the second /orld /ar, -an 6ng Kee and -an 6ng Lay, pooled their resources and industry together, entered into a partnership engaged in the business of selling lumber and hardware and construction supplies. -hey named their enterprise C?enguet LumberC which they $ointly managed until -an 6ng Kee1s death. <etitioners claim that in =( , -an 6ng Lay and his children caused the conversion of the partnership C?enguet LumberC into a corporation called C?enguet Lumber +ompanyC, purportedly to deprive -an 6ng Kee and his heirs of their rightful participation in the profits of the business. -he R-+ declaring that ?enguet Lumber as a $oint venture a,in to a particular partnership. -he +ourt of *ppeals reversed the $udgment of the trial court. 3ence, the present petition. I))+ * /hether -an 6ng Kee and -an 6ng Lay were partners in ?enguet Lumber.

, -.* In order to constitute a partnership, it must be established that " # two or more persons bound themselves to contribute money, property, or industry to a common fund, and "&# they intend to divide the profits among themselves. -he agreement need not be formally reduced into writing, since statute allows the oral constitution of a partnership, save in two instances: " # when immovable property or real rights are contributed, and "&# when the partnership has a capital of three thousand pesos or more. In both cases, a public instrument is reAuired. *n inventory to be signed by the parties and attached to the public instrument is also indispensable to the validity of the partnership whenever immovable property is contributed to the partnership. 8ndoubtedly, the best evidence would have been the contract of partnership itself, or the articles of partnership but there is none. -hus, we are as,ed to determine whether a partnership e5isted based purely on circumstantial evidence. * review of the record persuades us that the +ourt of *ppeals correctly reversed the decision of the trial court. -he evidence presented by petitioners falls short of the Auantum of proof reAuired to establish a partnership. <etitioners failed to prove that Kee contributed his resources to a common fund for the purpose of establishing a partnership. !urthermore, despite the forty years the partnership was allegedly in e5istence, Kee never as,ed for an accounting. -he essence of a partnership is that the partners share in the profits and losses. * demand for periodic accounting is evidence of a partnership. <etitioners failed to show how much their father received, if any, as his share in the profits of ?enguet Lumber +ompany for any particular period. 3ence, they failed to prove that -an 6ng Kee and -an 6ng Lay intended to divide the profits of the business between themselves, which is one of the essential features of a partnership. 3ence, the Supreme +ourt found that Kee was only an employee, not a partner. 0evertheless, petitioners would still want us to infer or believe the alleged e5istence of a partnership from this set of circumstances: that -an 6ng Lay and -an 6ng Kee were commanding the employees% that both were supervising the employees% that both were the ones who determined the price at which the stoc,s were to be sold% and that both placed orders to the suppliers of the ?enguet Lumber +ompany. -hey also point out that the families of the brothers -an 6ng Kee and -an 6ng Lay lived at the ?enguet Lumber +ompany compound, a privilege not e5tended to its ordinary employees. /here circumstances ta,en singly may be inadeAuate to prove the intent to form a partnership, nevertheless, the collective effect of these circumstances may be such as to support a finding of the e5istence of the parties1 intent. In the case at bench, even the aforesaid circumstances when ta,en together are not persuasive indicia of a partnership.

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-hey only tend to show that -an 6ng Kee was involved in the operations of ?enguet Lumber, but in what capacity is unclear. -here being no partnership, it follows that there is no dissolution, winding up or liAuidation to spea, of. 3ence, the petition must fail.

Partnershi- vs$ "oint 1enture

No" * -he Supreme +ourt in the above case too, the opportunity to discuss the difference between a $oint venture and a partnership. * particular partnership is distinguished from a $oint adventure, to wit: "a# * $oint adventure "an *merican concept similar to our $oint accounts# is a sort of informal partnership, with no firm name and no legal personality. In a $oint account, the participating merchants can transact business under their own name, and can be individually liable therefor. "b# 8sually, but not necessarily a $oint adventure is limited to a SI07L6 -R*0S*+-I.0, although the business of pursuing to a successful termination may continue for a number of years% a partnership generally relates to a continuing business of various transactions of a certain ,ind. * $oint venture Cpresupposes generally a parity of standing between the $oint co4 ventures or partners, in which each party has an eAual proprietary interest in the capital or property contributed, and where each party e5ercises eAual rights in the conduct of the business.C 0onetheless, in Aurbach+ et$ al$ v$ Sanitary 2ares 3anufacturing Cor-oration+ et$ al$, we e5pressed the view that a $oint venture may be li,ened to a particular partnership, thus: -he legal concept of a $oint venture is of common law origin. It has no precise legal definition, but it has been generally understood to mean an organi2ation formed for some temporary purpose. It is hardly distinguishable from the partnership, since their elements are similar I community of interest in the business, sharing of profits and losses, and a mutual right of control. -he main distinction cited by most opinions in common law $urisdiction is that the partnership contemplates a general business with some degree of continuity, while the $oint venture is formed for the e5ecution of a single transaction, and is thus of a temporary nature. 3owever, this observation is not entirely accurate in this $urisdiction, since under the +ivil +ode, a partnership may be particular or universal, and a particular partnership may have for its ob$ect a specific underta,ing. It would seem therefore that under <hilippine law, a $oint venture is a form of partnership and should thus be governed by the law of partnerships. -he Supreme +ourt has however recogni2ed a distinction between these two business forms, and has held that although a corporation cannot enter into a partnership contract, it may however engage in a $oint venture with others.

3ortgage; Accomo!ation 3ortgagor; Re!em-tion Price SPOUSES BELO v). P,ILIPPINE NATIONAL BAN7 '0. SPOUSES ESLABON G.R. No. 131330, M'%(< 1, &001
F'(")* 6duarda ?elo owned an agricultural land. She leased a portion of the said tract of land to respondents spouses ;arcos and *rsenia 6slabon in connection with the said spouses1 sugar plantation business.-he 6slabons obtained a loan from respondent <0? secured by a real estate mortgage on their own four residential houses, as well as on the agricultural land. -he assent of 6duarda to the mortgage was acAuired through a special power of attorney which she e5ecuted in favor of respondent ;arcos 6slabon. Spouses 6slabon failed to pay their loan obligation, thus, e5tra$udicial foreclosure proceedings against the mortgaged properties were instituted by <0?. *t the auction sale on June >, == , <0? was the highest bidder of the foreclosed properties. <0? appraised 6duarda of the sale at public auction of her land as well as the registration of the +ertificate of Sheriff1s Sale in its favor, and the one4year period to redeem the land.

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;eanwhile, 6duarda sold her right of redemption to petitioners spouses 6nriAue and !lorencia ?elo under a deed of absolute sale of proprietary and redemption rights. ?efore the e5piration of the redemption period, spouses ?elo tendered payment for the redemption of the agricultural land in the amount of <)(),)(&.=F, which includes the bid price of <0?, plus interest and e5penses. <0? re$ected the tender of payment. It contended that the redemption price should be the total claim of the ban, on the date of the auction sale and custody of property plus charges accrued and interests amounting to <&,BB=,=B(.B&. <etitioners spouses disagreed and refused to pay the said total claim of <0?. I))+ )* . /hether the Special <ower of *ttorney, the real estate mortgage contract, the foreclosure proceedings and the subseAuent auction sale involving 6duarda s property are valid. &. *ssuming they are valid, whether the petitioners are reAuired to pay, as redemption price, the entire claim of respondent <0?. , -.* . -he sub$ect S<*, the real estate mortgage contract, the foreclosure proceedings and the subseAuent auction sale are valid and legal. -he validity of the S<* and the mortgage contract cannot anymore be assailed due to petitioners1 failure to appeal the same after the trial court rendered its decision affirming their validity. *fter the trial court rendered its decision granting petitioners their alternative cause of action, i.e., that they can redeem the sub$ect property on the basis of the winning bid price of respondent <0?, petitioners did not anymore bother to appeal that decision on their first cause of action. It is an abuse of legal remedies for petitioners to belatedly pursue a claim that was settled with finality due to their own shortcoming. &. .nly the amount of the winning bidder1s purchase together with the interest thereon and on all other related e5penses should be paid as redemption price in accordance with Section F of *ct 0o. ' 'J -he respondent ban, however tries to renege on this contractual commitment by see,ing refuge in the =(= case of Sy v. +ourt of *ppeals '' wherein this +ourt ruled that the redemption price is eAual to the total amount of indebtedness to the ban,1s claim inasmuch as Section B( of the 7eneral ?an,ing *ct is an amendment to Section F of *ct 0o. ' 'J, despite the fact that the e5tra$udicial foreclosure procedure followed by the <0? was e5plicitly under or in accordance with *ct 0o. ' 'J. ?y invo,ing the said *ct, there is no doubt that it must Cgovern the manner in which the sale and redemption shall be effected.C +learly, the fundamental principle that contracts are respected as the law between the contracting parties finds application in the present case, specially where they are not contrary to law, morals, good customs and public policy It is therefore our view and we hold that Section B( of the 7eneral ?an,ing *ct, as amended by <.:. 0o. (&(, is inapplicable to accommodation mortgagors in the redemption of their mortgaged properties. /hile the petitioners, as assignees of 6duarda, are not reAuired to pay the entire claim of <0? against the principal debtors, they can only e5ercise their right of redemption with respect to the parcel of land belonging to ?elo, the accommodation mortgagor. -hus, they have to pay the bid price less the corresponding loan value of the foreclosed four ")# residential lots of the spouses 6slabon. <0? contends that to allow petitioners to redeem only the property belonging to their assignor would violate the principle of indivisibility of mortgage contracts. /e disagree. *rticle &>(= of the +ivil +ode of the <hilippines, provides that: * pledge or mortgage is indivisible, even though the debt may be divided among the successors in interest of the debtor or of the creditor. -herefore, the debtor1s heir who has paid a part of the debt cannot as, for the proportionate e5tinguishment of the pledge or mortgage as the debt is not completely satisfied. -he indivisibility concept does not apply to the right of redemption of an accommodation mortgagor and her assignees. !rom the wording of the law, indivisibility arises only when there is a debt, that is, there is a debtor4creditor relationship. ?ut, this relationship is wanting in the case at bar in the sense that petitioners are assignees of an accommodation mortgagor and not of a debtor4mortgagor. 3ence, it is fair and logical to allow the petitioners to redeem only the property belonging to their assignor, ?elo.

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Sales; Lease; Rescission CENTRAL BAN7 OF T,E P,ILIPPINES v). SPOUSES BIC,ARA G.R. No. 131061, M'%(< &6, &000
F'(")* Respondents, as the registered owners, sold the lots in Auestion to petitioner. .ne of the pertinent provisions of the :eed of Sale states that Qthe V60:.RS underta,e at their e5pense to fill the parcels of land with an escombro free from waste materials compacted to the street level upon signing of the :eed of Sale to suit the ground for the construction of the regional office of the +entral ?an, of the <hilippines thereatD. :espite respondents1 failure to pay the capital gains ta5 and other transfer fees, a -ransfer +ertificate of -itle "-+-# was nonetheless issued in petitioner1s name. :espite the issuance of the title, petitioner failed to pay respondent. .n its part, respondents did not fill up the lot with escombro despite several demands made by petitioner. <etitioner was thus constrained to underta,e the filling up of the said lots, by contracting the services of ?7V +onstruction. -he filling up of the lots cost petitioner <)J,>>>.>>. <etitioner deducted the said amount from the purchase price payable to respondents. Respondents commenced an action for rescission or specific performance, with damages, against petitioner before the R-+. <etitioner tendered payment to respondents but the latter refused the tender in view of their complaint for rescission. <etitioner filed a motion for consignation before the trial court. -he motion was granted. -he trial court ordered the respondents to accept petitionerEs consignation. .n appeal, the +ourt of *ppeals reversed the said decision and ordered the rescission of the contract of sale and the reconveyance of the properties to respondents. 3ence, this petition. I))+ * /hether the rescission of the said contract of sale is proper.

, -.* ?y law, the vendee is bound to accept the delivery and to pay the price of the thing sold at the time and place stipulated in the contract. In the case at bench, petitioner1s obligation to pay arose as soon as the deed of sale was registered and a clean title was issued. 3owever, petitioner $ustifies non4payment on respondents1 breach of several stipulations in the contract. /e have e5amined these alleged violations vis4a4 vis the pertinent provisions of the deed of sale, ,eeping in mind that only a substantial breach of the terms and conditions thereof will warrant rescission. /hether a breach is substantial is largely determined by the attendant circumstances. <etitioner1s argument was that it was not obliged to pay until respondents compact the lots. -a,ing into account the facts of the case, we find that particular argument of petitioner to be well4ta,en. -he use to which the parcels of land was to be devoted was no secret between the parties. -he consolidated estate, which incorporated the lots sold by respondents to petitioner, was intended as the site of petitioner1s regional office. -he pro$ect had its peculiar reAuirements, not the least of which was that since a substantial edifice was to be built on the property, the site had to be made suitable for the purpose. -hus, petitioner specified that the lots be filled up in the manner specified in paragraph ) of the contract. -he importance thereof could not have been lost on respondents. 6vidently then, respondents were guilty of non4performance of said stipulation. -he deed of sale e5pressly stipulated that the vendors were to underta,e the filling. -his was to be accomplished upon the signing of the contract and insofar as petitioner was concerned, respondents obligation was demandable at once. Respondents should not be allowed to rescind the contract where they themselves did not perform their essential obligation thereunder. It should be emphasi2ed that a contract of sale involves reciprocity between the parties. Since respondents were in bad faith, they may not see, the rescission of the agreement they themselves breached.

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Sales; 4na!e5uacy of the Price ABAPO v). CA G.R. No. 1&/566, M'%(< &, &000
F'(")* -he late spouses Victoriano and <lacida *bapo owned a parcel of land in +ebu. .f the J children the spouses left behind, only Santiago *bapo and +rispula *bapo4?acalso have heirs who are currently the antagonists in this case. In =FB, Santiago and +rispula e5ecuted a deed of sale under pacto de retro on the land in favor of -eodulfo Puimada. -he land was sold for <J>> with right to repurchase within J years failing which the conveyance would become absolute and irrevocable without the necessity of drawing up a new deed. 0o redemption was done within the J year period. ;ore than B years later, Puimada through a notari2ed deed of absolute sale sold the land to +rispula and her husband for <J>>. Since then until their death, the spouses ?acalso had possession, en$oyed the fruits of the land and paid the real estate ta5es to the e5clusion of Santiago. .n !eb ==>, the heirs of +rispula e5ecuted an Ce5tra$udicial declaration of heirsC and allotted unto themselves the land. .n *pril ==>, Santiago instituted a petition for reconstitution of the original certificate of title over the land in the name of his father Victoriano. It was granted. 8pon discovery of the said reconstitution of title, +rispula1s heirs interposed a petition to surrender owner1s copy of the reconstituted .+- in the hands of Santiago. -he trial court denied such petition. -hus +rispula1s heirs instituted a complaint for CPuieting of -itle with :amagesC against Santiago. Santiago assailed the due e5ecution of both the deed of sale under pacto de retro and the deed of absolute sale. 3e vehemently swore that he never sold in =FB his interest in the land. I))+ * ./hether the deed of sale under pacto de retro is an eAuitable mortgage in view of the unusually inadeAuate consideration of <J>>. &. /hether the deed of absolute sale is illegal and void. , -.* . -he price of <J>> is not unusually inadeAuate. -he e5tant record reveals that the assessed value of the land in =B> was only <)>>. -hus, at the time of the sale in =FB the price of <J>> is undisputably over and above the assessed value of <)>>. ?esides, the mere fact that the price is inadeAuate does not support the conclusion that the contract was a loan or that the property was not at all sold to Puimada. -he price fi5ed in a sale with right to repurchase is not necessarily the true value of the land sold. -he rationale is that the vendor has the right to repurchase the land. It is the practice to fi5 a relatively reduced price, although not a grossly inadeAuate one, in order to afford the vendor a retro every facility to redeem the land. -hus inadeAuacy of price is not sufficient to set aside a sale unless it is grossly inadeAuate or purely shoc,ing to the conscience. &. -he deed of absolute sale having been e5ecuted and attested through the intervention of the notary public is a public document. *s such, they are evidence of the facts in clear, uneAuivocal manner therein e5pressed. -hey have the presumption of regularity, which Santiago failed to overcome by clear, strong and convincing evidence.

Pro-erty; E6tra7u!icial Partition; 8uil!er in #oo! aith 7ILARIO v). COURT OF APPEALS G.R. No. 1313&9, J'0+'%8 19, &000
F'(")* :uring the lifetime of Jacinto <ada, owner of the land in dispute, his half4 brother, !eliciano <ada obtained permission from him to build a house on the disputed land. /hen !eliciano died, his son survived him, who was in turn survived by his sonEs daughter, the petitioner herein.

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In =J an e5tra$udicial partition of the estate of Jacinto <rada was made among his heirs and e5ecuted in an unregistered private document. -he heirs to whom the disputed land eventually belonged sold the property after sometime. .ne of the buyers demanded the petitioner to vacate the land. /ith the petitionerEs refusal, a complaint for e$ectment was filed. I))+ )* . /hether or not the partition is invalid. &. /hether the petitioners are builders in good faith

, -.* . -he e5tra$udicial partition is valid, albeit e5ecuted in an unregistered private document. 0o law reAuires partition among heirs to be in writing and be registered in order to be valid. -he reAuirement in Sec. , Rule B) of the Revised Rules of +ourt has for its purpose the protection of creditors and the heirs themselves against tardy claims and to serve as constructive notice to others. -hus, the intrinsic validity of partition not e5ecuted with the prescribed formalities is not undermined when no creditors are involved. -he reAuirement of *rticle 'J( of the +ivil +ode that acts which have for their ob$ect the creation, transmission, modification or e5tinguishment of real rights over immovable property, must appear in a public instrument, is only for convenience, non4 compliance with which does not affect the validity or enforceability of the acts of the parties as among themselves. *nd neither does the Statute of !rauds under *rticle )>' of the 0ew +ivil +ode apply because partition among heirs is not legally deemed a conveyance of real property, considering that it involves not a transfer of property from one to the other but rather, a confirmation or ratification of title or right of property that an heir is renouncing in favor of another heir who accepts and receives the inheritance. -he =J e5tra$udicial partition being legal and effective as among his heirs, there was a valid transfer of ownership rights over the involved property. &. +onsidering that petitioners were in possession of the sub$ect property by sheer tolerance of its owners, they ,new that their occupation of the premises may be terminated any time. <ersons who occupy the land of another at the latter1s tolerance or permission, without any contract between them, is necessarily bound by an implied promise that they will vacate the same upon demand, failing in which a summary action for e$ectment is the proper remedy against them. -hus, they cannot be considered possessors nor builders in good faith. It is well4 settled that both *rticle ))( and *rticle J)F of the 0ew +ivil +ode which allow full reimbursement of useful improvements and retention of the premises until reimbursement is made, apply only to a possessor in good faith. Verily, persons whose occupation of a realty is by sheer tolerance of its owners are not possessors in good faith. *s such, petitioners cannot be entitled to the value of the improvements that they built on the said lot.

CRIMINAL LAW
PEOPLE v. CANONIGO G.R. No. 133519 A+;+)" 1, &000
F'(")* +anonigo was ( years old when he raped +arla ;alanay, then under & yrs of age, in front of her sister "aged J#. In the information filed against him, it was stated that the victim was & years of age. 3owever, it was not alleged that the crime of rape was committed in full view of a relative within the 'rd degree of consanguinity.. 0onetheless, the R-+ found +anonigo guilty of the crime of statutory rape and sentenced him to death. !rom this decision, +anonigo appealed. I))+ * /hether the trial court erred in imposing the death penalty since the information filed against the accused did not allege the Aualifying circumstance that the rape was committed in full view of a relative within the third degree of consanguinity of the victim. , -.* 9es. +anonigo should only be sentenced to reclusion perpetua. &

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-he circumstances under Sec. of R* 0o. BFJ= are in the nature of special Aualifying circumstances which, unli,e generic aggravating circumstances which may be appreciated and proved even if not alleged, cannot be considered as such unless so alleged in the information even if proved. +onseAuently, the Aualifying circumstance that +arla was raped in full view of a relative within the third degree of consanguinity cannot be considered against the accused. -he reason for this is that the +onstitution guarantees the right of every person accused in a criminal prosecution to be informed of the nature and the charge against him. Since the facts stated in the body of the information determine the crime for which the accused stands charged and for which he must be tried, every element of the criminal offense must be alleged in the complaint or information to enable the accused to suitably prepare for his defense. In the same vein, the trial court should not have considered the charge filed against accused4appellant as statutory rape. -o effectively prosecute accused4appellant for statutory rape, its elements must be set out in the complaint or information to apprise the accused of the crime of which he is being charged. -he gravamen of the offense of statutory rape is in having carnal ,nowledge with a girl under & years of age. In the case at bar, although it was established during the trial that +arla was only eleven " # years old at the time the crime was committed, the information filed against the accused4 appellant charged him with having carnal ,nowledge of a girl who is twelve " &# years of age. +onseAuently, the trial court erred when it held the accused4appellant liable for statutory rape. Aggravating Circumstances

PEOPLE v). RIGLOS '0. RIGLOS G.R. No. 131653, S !" #$ % 1, &000
F'(")* +amilo Valde2 was sitting at the terrace of house when respondent Lamberto Riglos arrived. Lamberto as,ed money from +amilo but the latter refused, and instead, told him to go home. Suddenly, Lamberto slapped +amilo on the face several times, which caused the latter to push Lamberto away. Lamberto then pulled +amilo1s hand and the latter fell to the ground. Swiftly, Lamberto drew a .'( caliber gun from his waist and shot +amilo. -he first shot missed +amilo. Lamberto fired a second shot hitting +amilo on the chest.. +amilo managed to slowly enter the house and proceed to their room while Lamberto $ust stayed at the terrace *fter the first shot, respondent /ilfredo, who was at a neighbor1s house proceeded to the residence of +amilo. -hen /ilfredo went to where Lamberto was and said: CLet us get inside and ,ill him, brother.C -he two entered the house and went to the bedroom. 8pon seeing the wounded +amilo sitting on the bed, Lamberto and /ilfredo shot him several times. -hey trial court convicted the respondent of murder Aualified by treachery with the aggravating circumstances of abuse of superior strength and dwelling and sentenced him to suffer the supreme penalty of death. Respondent appealed contending that the Aualifying circumstances of treachery and abuse of superior strength are absent, since the act of aggression was preceded by a violent Auarrel between him and the victim. I))+ * . /hether the appreciation of the aggravating circumstances of treachery was proper. &. /hether the appreciation of abuse of superior strength was proper. , -.* . In the instant case, there are two stages of the act of aggression committed against the victim. -he first one was preceded by a heated argument when the victim refused to give money to accused Lamberto, which led the latter to shoot the victim on the chest. -he aggression against the victim, +amilo, had already ceased when after the second shot that hit him on the chest, he slowly retreated to the bedroom in their house. 3owever, the subseAuent act was definitely treacherous. 8pon the arrival of accused4 appellant /ilfredo, he uttered these words to Lamberto, CLet us get inside and ,ill him, brotherC, and then they immediately went inside the victim1s house, and at the entrance of the door leading to the couple1s bedroom, they saw the wounded +amilo sitting on the bed and shot him several times. -he attac, was a total surprise to the victim as he did not e5pect any from accused4appellant /ilfredo with whom he had no Auarrel. !urthermore, the suddenness of the attac, made it impossible for the victim to defend himself. -he victim was totally defenseless when both accused attac,ed him. -reachery

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is to be appreciated even when the victim was warned of danger or initially assaulted frontally, but was attac,ed again after being rendered helpless and had no means to defend himself or to retaliate. -hus, treachery or alevosia clearly attended the ,illing of the victim, +amilo Valde2 because the accused employed means, methods or forms in the commission of the crime which tend directly and specially to insure its e5ecution, without ris, to themselves arising from any defense which the victim might have made. &. 3owever, the trial court erred in considering the aggravating circumstance of abuse of superior strength. /here treachery Aualifies the crime of murder, it absorbs abuse of superior strength and the latter cannot be appreciated even as a generic aggravating circumstance. Ra-e; 9ualifying Circumstances

PEOPLE v). CRU4 G.R. No). 1&/315-1/, A+;+)" 11, &000

F'(")* -he Regional -rial +ourt of +abanatuan +ity convicted Simeon ?. +ru2 of three "'# counts of rape and sentenced him to suffer the supreme penalty of death in each case for having committed the crime with the aggravating circumstance of relationship, the respondent being the father of the complainant. -he criminal complaints in the case at bar alleged that the complainant was the daughter of the respondent. 3owever, the same criminal complaints failed to allege that the private complainant was a minor or under eighteen " (# years of age at the time when each of the crimes of rape was committed against her. I))+ * /hether the correct penalty was imposed.

, -.* -he trial court erred in imposing the supreme penalty of death on the respondent. Section of Republic *ct 0o. BFJ= amending *rticle ''J of the Revised <enal +ode provides: 555 555 555 -he death penalty shall be imposed if the crime of rape is committed with any of the following attendant circumstances: . /hen the victim is under eighteen " (# years of age and the offender is a parent, ascendant, step4parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common4law spouse of the parent of the victim. . . . -he attendant circumstances enumerated parta,e of the nature of Aualifying circumstances since the same are punishable by the single indivisible penalty of death and not reclusion perpetua to death. It has been the rule that Aualifying circumstances must be properly pleaded in the indictment. If the same are not pleaded but proved, they shall be considered only as aggravating circumstances. :ue to the absence of allegation in each of the criminal complaints in these cases that the private complainant was a minor, the respondent can be held liable for three "'# counts of simple rape only and for which the impossible penalty is reclusion perpetua. 4ncom-lete Self .efense

PEOPLE v). LIBRANDO GR No. 13&&21 J+-8 5, &000

F'(")* Librando and his & co4accused were convicted of murder. *ppellants claim that there was incomplete self defense as the victim was the first one who tried to hit him. I))+ * . /hether the mitigating circumstance of incomplete self defense should be appreciated. &. /hether the nighttime and uninhabited place should be considered as only one mitigating circumstance. , -.* .-he +ourt, however, is not inclined to consider the mitigating circumstance of incomplete self defense in Librando1s favor. -o avail of the mitigating circumstance of

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incomplete self defense, there must be unlawful aggression on the part of the victim. In the case at bar, prosecution witness *ileen testified that it was in fact the said accused4 appellant who delivered the first blow without any warning to the deceased. -he severity of the in$uries inflicted on the deceased as well as the fact that Librando who admitted that he was of bigger built than the deceased, could hardly present any evidence of in$uries allegedly inflicted on him by the deceased belie his claim of self defense. &. -he trial court did not err in considering the nighttime and uninhabited place as $ust one aggravating circumstance. In the case of <eople vs. Santos &F it has been held that if the aggravating circumstances of nighttime, uninhabited place or band concur in the commission of the crime, all will constitute one aggravating circumstance only as a general rule although they can be considered separately if their elements are distinctly perceived and can subsist independently, revealing a greater degree of perversity. -he trial court1s decision was affirmed.

3alversation of Public un!s ESTRELLA v). SANDIGANBAYAN GR No. 1&2150 J+0 &0, &000
F'(")* .n July , =BJ, petitioner was appointed as ;unicipal +ashier & in the .ffice of the ;unicipal -reasurer, Isulan, Sultan Kudarat, with a bond in the amount of <&(,>>>.>>. ' <er *udit *ssignment .rder 0o. L7*: (F4 dated January &(, =(F issued by the +ommission on *udit "+.*#, Regional .ffice RII, he was audited of his cash and accounts for the period from ;arch ( to &), =(F only. ) !or reasons un,nown, the cash and accounts of the petitioner were not audited for the period from July , =BJ, the date of his appointment, up to ;arch B, =(F. *ll in all, petitioner received cash advances totalling <&)=,(&=.&J. .f the <&)=,(&=.&J, petitioner was able to liAuidate on 0ovember &>, =(J the amount of <&=,>('.JB ( only. -he amount of <&,'=J.F= resulting from the liAuidation of petitioner1s cash collections was added to <&=,>('.JB, thus, petitioner1s accountability was reduced to <& (,')=.==. *fter establishing the amount of the shortage as reflected in 65hibit C:C, the .I+ ;unicipal -reasurer submitted his progress report demonstrating further restitution of petitioner1s disallowed cash advances and vouchers in the amount of < ),)>F.>> and < &,'>'.>> or a total of <&F,B>=.>>, &F thereby further reducing his liability to < = ,F)>.==. /hile petitioner admitted his accountability to be only <F),J'(.=J, he doubted the accuracy of the said amount for the reason that in his perception, his liability was allegedly between <'>,>>>.>> and <)>,>>>.>> only. &B Resultantly, petitioner was charged with malversation of public funds in the Information filed with respondent Sandiganbayan. -he Sandiganbayan rendered its decision convicting petitioner. -here being no modifying circumstances and applying the Indeterminate Sentence Law, the +ourt imposes on the accused the indeterminate penalty from -/6LV6 " &# 96*RS, !IV6 "J# ;.0-3S and 6L6V60 " # :*9S of reclusion temporal as minimum to 6I73-660 " (# 96*RS, 6I73- "(# ;.0-3S and .06 " # :*9 of reclusion temporal as ma5imum, the fine eAual to -/. 380:R6: 6I73-660 -3.8S*0: -3R66 380:R6: !.R-9 0I06 <6S.S *0: 0I06-940I06 +60-*V.S "<& (,')=.==#, the amount malversed, and perpetual special disAualification. '> 3ence, this petition. I))+ * /hether the Sandiganbayan erred in finding petitioner guilty beyond reasonable doubt. , -.* 9es. *rticle & B of the Revised <enal +ode holds liable for malversation a public officer who shall appropriate public funds or property for which he is accountable, or shall ta,e or misappropriate or shall consent, or through abandonment or negligence, shall permit any other person to ta,e such public funds or property. !urthermore, the failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authori2ed officer, shall be prima facie evidence that he has put such missing funds or property to personal uses. -he elements of malversation of public funds are "a# the offender is a public officer, "b# he had custody or control of the funds or property by reason of the duties of

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his office, "c# these funds or property were public funds or property for which he was accountable, and "d# that he appropriated, too,, misappropriated or consented, or through abandonment or negligence, permitted another person to ta,e them. )& *nent the last element, we have held that to $ustify conviction for malversation of public funds, the prosecution has only to prove that the accused received public funds or property and that he could not account for them or did not have them in his possession and could not give a reasonable e5cuse for the disappearance of the same. )' *n accountable public officer may be convicted of malversation even if there is no direct evidence of misappropriation and the only evidence is that there is a shortage in his accounts which he has not been able to e5plain satisfactorily. <etitioner was not able to produce the missing amount of < = ,F)>.==% and neither was he able to e5plain his failure to produce that amount. *side from petitioner1s feeble attempt to shift the blame to the audit team, nothing in the records of this case supports his allegation that the audit team had committed an error in the Report of +ash 65amination.

REMEDIAL LAW
Civil Proce!ure; Amen!ment to Conform to Evi!ence MAUNLAD SAVINGS = LOAN ASSOCIATION, INC. v). COURT OF APPEALS '0. NUBLA G.R. No. 11191&, Nov #$ % &6, &000
FACTS* <etitioner instituted a complaint for a sum of money against private respondent 0ubla and his brother on the basis of a promissory note allegedly e5ecuted by them to secure a loan, which they failed to pay, and continuously defaulted. In their *nswer the defendants admitted that they e5ecuted the promissory note but denied any liability thereunder, alleging that they did not receive any value out of the transaction nor did the said document reflect the real agreement between the parties. 3owever, the said *nswer was not under oath. ;aunlad Savings presented its evidence relying on the admission by the 0ublas of the genuineness and due e5ecution of the sub$ect promissory note, inasmuch as their *nswer was not under oath as reAuired by Section (, Rule ( of the Rules of +ourt. SubseAuently, 0ubla testified that the loan documents and the promissory note did not embody the real agreement of the parties because they signed blan, documents on the understanding that they were signing as mere representatives of 6ver4Rise, and not in their personal capacity. -he petitioner raised no ob$ection. -he 0ublas filed a ;otion to *dmit *mended *nswer citing Section J, Rule > of the Rules of +ourt, which allows the amendment of pleadings to conform to the evidence. <etitioner filed its opposition to the said motion. ?oth motions were denied ratiocinating that the proposed amendment in the amended answer will ultimately change or alter the theory of the defense and thus cannot be allowed under Section ', Rule > of the Rules of +ourt. ISSUES* . /hether the amended answer of herein respondent, made after the presentation of evidence can be admitted, thus altering the theory of the case to the pre$udice of the petitioner. &. /hether the ob$ection was timely made. ,ELD* . 8nder Sec. B, Rule ( of the Rules of +ourt, when the cause of action is anchored on a document, the genuineness or due e5ecution of the said document shall be deemed impliedly admitted unless the defendant, under oath, specifically denies them, and sets forth what he claims to be the facts. Said rule should be read in con$unction with Sec. = of Rule '> of the Revised Rules of 6vidence which provides, in substance, that when the parties have reduced their agreement to writing they have made such writing the only repository and memorial of the truth, and whatever is not found in the writing must be understood to have been waived or abandoned, 'nless he puts in issue that there is a mista,e or imperfection in the writing, or that it does not

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e5press the true agreement of the parties, or that the agreement is invalid or that there is an intrinsic ambiguity in the writing. In the instant case, while the specific denial in the original answer was not under oath and thus gave rise to the implied admission, private respondent, thr' his testimony, was able to p't in iss'e and present parol evidence to controvert the terms of the promissory note, which are essentially the bedroc, of his defense. (he presentation o& the contrary evidence &or and a%ainst imp'tations o& %en'ineness and d'e e)ec'tion 'ndo'btedly c'red, clari&ied or e)panded, as the case may be, *hatever de&ects in the pleadin%s or va%'eness in the iss'es there mi%ht have been as presented in the ori%inal ans*er. &. <etitioner made no timely ob$ection when private respondent introduced parol evidence. -he rule is that ob$ections to evidence must be made as soon as the grounds therefor become reasonably apparent, otherwise the ob$ection is waived and such evidence will form part of the records of the case as competent and complete evidence. -hus, the ob$ections of petitioner ;aunlad Savings on the subseAuent hearings to no more than a belated attempt to remedy its neglectful act of prior implied consent to the presentation of parol evidence on the terms of the agreement between the parties.

Civil Proce!ure; Service of Summons BANCO DO BRASIL v). T,E COURT OF APPEALS G.R. No). 1&1265-6/, J+0 15, &000
F'(")* *n abandoned vessel was sei2ed by the ?ureau of +ustoms. <rior to the sei2ure, its authori2ed representative had entered into a salvage agreement with private respondent 8R?I0. to secure and repair the vessel. -o enforce its preferred salvorEs lien, 8R?I0. filed with the R-+ of ;anila a <etition for +ertiorari, <rohibition and ;andamus assailing the sei2ure. <rivate respondent amended its petition to include ?anco :o ?rasil as defendant being one of the claimants of the vessel. 8pon motion of the private respondent, the trial court allowed summons by publication to be served upon defendants who were not residents and had no direct representative in the country. <rivate respondent testified during the presentation of evidence that, for being a nuisance defendant, petitioner caused irreparable damage to private respondent in the amount of S'>>,>>>. -he trial court ruled in favor of the private respondent and awarded the damage sought. -he petitioner Auestioned its liability for damages, on the ground that there was no valid service of summons as service was on the wrong party T the ambassador of ?ra2il. 3ence, it argued, the trial court did not acAuire $urisdiction over petitioner. <etitioner now contends that the action filed against it is an action for damages, as such it is an action in personam which reAuires personal service of summons. I))+ * /hether a valid service of summons was made upon the petitioner.

, -.* It is invalid. /hen a defendant is a nonresident and he is not found in the country, summons may be served e5traterritorially. 3owever, e5tra$udicial service of summons apply only where the action is in rem or Auasi in rem. -his is so inasmuch as, in such actions, $urisdiction over the person of the defendant is not a prereAuisite to confer $urisdiction on the court provided that the court acAuires $urisdiction over the res. 3owever, where the action is in personam $urisdiction over the person of the defendant is necessary. /hen the defendant is a non4resident, personal service of summons within the state is essential to the acAuisition of $urisdiction over the person. -his cannot be done, however, if the defendant is not physically present in the country, and thus, the court cannot acAuire $urisdiction over his person and therefore cannot validly try and decide the case against him. It must be stressed that any relief granted in rem or Auasi in rem actions must be confined to the res, and the court cannot lawfully render a personal $udgment against the defendant. +learly, the publication of summons effected by private respondent is invalid and ineffective for the trial court to acAuire $urisdiction over the person of petitioner, since by see,ing to recover damages from petitioner, private respondentEs action became in personam. ?earing in mind the in personam nature of the action, personal or, if not

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possible, substituted service of summons on petitioner, and not e5traterritorial service, is necessary to confer $urisdiction over the person of petitioner and validly hold it liable to private respondent for damages. -hus, the trial court had no $urisdiction to award the damages.

Civil Proce!ure; Com-romise CALLA v). MAGLALANG G.R. No. 110&65, F $%+'%8 9, &000
F'(")* -hrough the years, petitioners1 occupancy and possession of their respective residential units were in the concept of an owners pursuant to the agreement, albeit verbal, that they had with !elipe ;aglalang that their monthly payments shall be treated and considered as installment payments for the purchase of said units. /hen !elipe ;aglalang died, herein petitioners continued to pay their monthly installments to the herein respondent, being one of the successors4in4interest of the late !elipe ;aglalang. SubseAuently, complaints for e$ectment were filed allegedly by the respondent against each of the petitioners. /hen the case reached the Supreme +ourt through a <etition for Review on +ertiorari filed by petitioners, the parties entered into a +ompromise *greement, which states in part: +.;<R.;IS6 *7R66;60CIn compliance with the oral agreement made between the herein petitioners and the respondent1s deceased father during his lifetime, the latter agrees to relinAuish and forever waives all his rights and interests including that of his siblings over the residential housesLunits and presently occupied by the petitioners. C*ll their payments made in the past for more than twenty five "&J# years shall be considered as installment payments and in full satisfaction of the purchase price thereof% 555 555 555 CRespondent underta,es not to disturb or interfere with the petitioners1 actual occupationLpossession of the sub$ect residential housesLunits. C-hat <*R-I6S forever waive all their causes of action against each other and consider the JudgmentLResolutionL.rder to be issued on this +ompromise *greement as final and e5ecutory.D I))+ * /hether the +ompromise *greement is legally acceptable. , -.* -he said +ompromise *greement is legally acceptable as nothing therein is contrary to law, morals, good customs and public policy, and the same having been freely and intelligently e5ecuted by and between petitioners and respondent, $udicial approval thereof is in order.

Criminal Proce!ure; Arrests CUEVAS v). MU>O4 G.R. No. 1102&0, D ( #$ % 1/, &000
F'(")* .n *ug &', ==B, the 3ong Kong ;agistrate1s +ourt at 6astern ;agistracy issued a warrant for the arrest of respondent for seven "B# counts of accepting an advantage as an agent and seven "B# counts of conspiracy to defraud. .n Sept ', ===, the <hilippine :ept. of Justice "R< :.J # received a reAuest for the provisional arrest of the respondent from the ;utual Legal *ssistance 8nit, International Law :ivision of the 3ong Kong :ept. of Justice "3K :.J# pursuant to *rticle " # of the Q*greement ?etween -he 7ovEt .f R< *nd -he 7ovEt .f 3ong Kong !or -he Surrender .f *ccused *nd +onvicted <ersonsC "R<43K 65tradition *greement#. -he R< :.J forwarded the reAuest for provisional arrest to the *nti47raft :ivision of the 0?I. .n Sept B, ===, for and in behalf of the 7ovEt of 3ong Kong, the 0?I filed an application for the provisional arrest of respondent with the R-+ of ;anila, which granted the application and issued the corresponding .rder of *rrest. Respondent was arrested and detained at the 0?I detention cell.

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8pon respondentEs petition, the +ourt of *ppeals declared the .rder of *rrest null and void on the following grounds: " # there was no urgency to warrant the reAuest for provisional arrest "&# the reAuest for provisional arrest and the accompanying warrant of arrest and summary of facts were unauthenticated and mere facsimile copies which are insufficient to form a basis for the issuance of the .rder of *rrest% and, "'# the .rder of *rrest was issued without the Judge having personally determined the e5istence of probable cause. I))+ * , -.* /hether the .rder of *rrest is null and void.

-he .rder of *rrest is valid. +irst. -here was urgency for the provisional arrest of the respondent. Section &>"a# of <.:. 0o. >F= reads as follows:
<rovisional *rrest I "a# In case of urgency, the reAuesting state may, pursuant to the relevant treaty or convention and while the same remains in force, re,'est &or the provisional arrest of the accused, pending receipt of the reAuest for e5tradition made in accordance with Section ) of this :ecree ))).D

and *rticle

of the R<43K 65tradition *greement provides in part that:

" # In urgent cases, the person sought may, in accordance with the law of the reAuested <arty, be provisionally arrested on the application of the reAuesting <arty ))).D

*t the time the reAuest for provisional arrest was made, respondent1s pending application for the discharge of a restraint order over certain assets held in relation to the offenses charged, was set to be heard by the +ourt of !irst Instance of 3ong Kong on Sept B, ===. -he 3K :.J was concerned that the pending reAuest for the e5tradition of the respondent would be disclosed to the latter during the said proceedings, and would motivate respondent to flee the <hilippines before the reAuest could be made. *lso, considering the charges against the respondent, for each count of which, if found guilty, he may be punished with seven "B# and fourteen " )# years imprisonment, respectively. 8ndoubtedly, the gravity of the imposable penalty is a factor to consider in determining the li,elihood that the accused will abscond if allowed provisional liberty. It is, after all, but human to fear a lengthy, if not a lifetime, incarceration. !urthermore, it has also not escaped the attention of this +ourt that respondent appears to be affluent and possessed of sufficient resources to facilitate an escape from this $urisdiction. Second. -he reAuest for provisional arrest of respondent and its accompanying documents are valid despite lac, of authentication. -here is no reAuirement under <: 0o. >F= and in the R<43K 65tradition *greement for the authentication of a reAuest for provisional arrest and its accompanying documents. -ast. -here was sufficient factual and legal basis for the determination of probable cause as a reAuisite for the issuance of the .rder of *rrest. /e have defined probable cause for the issuance of a warrant of arrest as Cthe e5istence of such facts and circumstances that would lead a reasonably discreet and prudent person to believe that an offense has been committed by the person sought to be arrested.C -he determination of probable cause is a function of the Judge. Such is the mandate of our +onstitution which provides that a warrant of arrest shall issue only upon probable cause to be determined personally by the $udge after e5amination under oath or affirmation of the complainant and the witnesses he may produce. -he reAuest for the respondent1s provisional arrest was accompanied by facsimile copies of the outstanding warrant of arrest issued by the 3ong Kong government, a summary of the facts of the case against respondent, particulars of his birth and address, an intention to reAuest his provisional arrest and the reason therefor. -he said documents were appended to the application for respondent1s provisional arrest filed in the R-+, and formed the basis of the $udge1s finding of probable cause for the issuance of the warrant of arrest against respondent.

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S-ecial Civil Actions; Certiorari BANCO FILIPINO SAVINGS = MORTGAGE BAN7 v). COURT OF APPEALS GR No. 13&603, J+0 &3, &000
F'(")* ?anco !ilipino "?!# to filed, on *ug F, ==J, an action for recovery of real properties before the R-+ of Iloilo on the ground of breach of trust. *fter a protracted e5change of pleadings, the trial court dismissed the complaint. * petition for certiorari under Rule FJ before the +ourt of *ppeals alleging that the trial courtEs decision was issued with grave abuse of discretion because it did not comply with the constitutional mandate on the form of decisions. 3owever, the +* dismissed ?!Es petition on the ground, that the CpetitionerEs recourse to Rule FJ of the Revised Rules of +ourt is patently malapropos.C It reiterated the rule that a special civil action for certiorari may be resorted to only when there is no appeal, nor any plain, speedy and adeAuate remedy in the ordinary course of law. ?anco !ilipinoEs failure to appeal by writ of error within the reglementary period and its belated recourse to a petition for certiorari under Rule FJ was interpreted by the +ourt of *ppeals as a desperate attempt by ?anco !ilipino to resurrect what was otherwise already a lost appeal. !urthermore, the +ourt of *ppeals debun,ed ?anco !ilipinoEs theory that the assailed order did not comply with the substantive reAuirements of the +onstitution. ?anco !ilipino then filed with the Supreme +ourt its sub$ect petition for certiorari under Rule FJ of the Revised Rules of +ourt. I))+ )* . /hether the present petition for certiorari before the Supreme +ourt is the proper remedy% whether the +ourt of *ppeals committed grave abuse of discretion. &. /hether the dismissal of the petition for certiorari before the +ourt of *ppeals was proper , -.* . /ithout need of delving into the merits of the case, this +ourt hereby dismisses the instant petition. !or in filing a special civil action for certiorari instead of an ordinary appeal before this +ourt, ?anco !ilipino violated basic tenets of remedial law that merited the dismissal of its petition. +irst. ?anco !ilipinoEs proper remedy from the adverse resolutions of the +ourt of *ppeals is an ordinary appeal to this +ourt via a petition for review under Rule )J and not a petition for certiorari under Rule FJ. /e have said time and again that for the e5traordinary remedy of certiorari to lie by reason of grave abuse of discretion, the abuse of discretion, must be so patent and gross as to amount to an evasion of a positive duty, or a virtual refusal to perform the duty en$oined or act in contemplation of law, or where the power is e5ercised in an arbitrary and despotic manner by reason of passion and personal hostility. 0othing in the record of this case supports ?anco !ilipinoEs bare assertion that the +ourt of *ppeals rendered its assailed resolutions with grave abuse of discretion. In other words, there being no grave abuse of discretion on its part, the +ourt of *ppeals rendered the assailed resolutions in the proper e5ercise of its $urisdiction. 3ence, even if erroneous, the +ourt of *ppealsE resolutions can only be assailed by means of a petition for review. -he distinction is clear: a petition for certiorari see,s to correct errors of $urisdiction while a petition for review see,s to correct errors of $udgment committed by the court. 6rrors of $udgment include errors of procedure or mista,es in the courtEs findings. /here a court has $urisdiction over the person and the sub$ect matter, the decision on all other Auestions arising in the case is an e5ercise of that $urisdiction. +onseAuently, all errors committed in the e5ercise of such $urisdiction are merely errors of $udgment. Second. -he availability to ?anco !ilipino of the remedy of a petition for review from the decision of the +ourt of *ppeals effectively foreclosed its right to resort to a petition for certiorari. &. -he dismissal is proper. +ertiorari cannot be used as a substitute for the lapsed or lost remedy of appeal. /hen ?anco !ilipino filed its petition for certiorari assailing the R-+ order, the reglementary period for filing a petition for review before the +ourt of *ppeals had already lapsed. It is true that this +ourt may treat a petition for certiorari as having been filed under Rule )J to serve the higher interest of $ustice, but not when the petition is filed well

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beyond the reglementary period for filing a petition for review and without offering any reason therefor. <erfection of an appeal within the reglementary period is not only mandatory but also $urisdictional so that failure to do so renders the Auestioned decision final and e5ecutory, and deprives the appellate court of $urisdiction to alter the final $udgment, much less to entertain the appeal.

Evi!ence; 4m-eachment of a 2itness PEOPLE v). CIRILO

F'(")* +irilo was convicted of murder based on the positive identification of eyewitness <anes as the person who shot to death the victim. She testified that during the night of the shooting incident the ,erosene torch that she was holding illuminated the face of the appellant who was then aiming a shotgun at them. *ppellant avers that the differences in the written affidavit and the testimony of the witnesses do not warrant his conviction. I))+ * /hether the credibility of the witness may be impeached. , -.* -he credibility of a witness may not be impeached by simply pointing out the discrepancy in her affidavit and her testimony during the trial to the effect that her testimony mentions the ,erosene torch as a means of illumination while her affidavit states that she saw appellant due to the bright moon. 8nder Section ', Rule '& of the Rules of +ourt, it is provided that: before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and places and the persons present, and he must be as,ed whether he made such statements, and if so, allowed to e5plain them. If the statements be in writing they must be shown to the witness before any Auestion is put to him concerning them. In any event, this +ourt has ruled that discrepancies bet*een the a&&idavit o& a *itness and his testimony in co'rt do not necessarily discredit the *itness because it is a matter of $udicial e5perience that affidavits, being ta,en e54parte, are almost always incomplete and often inaccurate. ?esides, the testimonial discrepancies could have been caused by the natural fic,leness of memory, which tends to strengthen, rather than wea,en credibility as they erase any suspicion of rehearsed testimony. :ecision affirmed.

Evi!ence PEOPLE v). ALVARE4 '0. VILLAS G.R. No. 1&1659, Nov #$ % &&, &000
F'(")* -he trial court declared accused *LV*R6O and VILL*S guilty of ;urder beyond reasonable doubt, as principal. !or insufficiency of evidence co4accused ?860*V60-8R* VILL*S was acAuitted. -he appellants contend that their co4accused were acAuitted by the trial court after it re$ected the respective identifications made and uncorroborated testimony of 0enita, the prosecution witness. * fortiori, appellants claim they can not be convicted on the basis of the same uncorroborated testimony of the prosecution witness which the trial court has characteri2ed as Cundeserving of any belief for being inherently incredible,C Cbeyond any common human e5perience,C Cinherently improbable,C Cpatently incredible,C Cgravely doubtful and unconvincingC and Cundeserving of faith and credenceC. I))+ * /hether a conviction of an accused can be based upon a testimony which was the same basis for the acAuittal of the co4accused. , -.* 0otably, the trial court did not accord full faith and credence to the identification made by the witness of erstwhile accused ?uenaventura Villas as one of the perpetrators of the crime. -hat fact, however, does not entirely impugn her credibility as a witness relative to the other aspects of the case. -he trial court found as sufficiently convincing the testimony of 0enita as regards her identification of the appellants as the perpetrators of the crime. -he settled rule is that the testimony o& a *itness may be believed in part and disbelieved in part as the corroborative evidence or improbabilities

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o& the case may re,'ire. 6ven where a witness has been found to have deliberately falsified the truth in some particulars, it is not reAuired that the whole of his testimony be re$ected.

Evi!ence; Cre!ibility of a 2itness PEOPLE v). ESPERO G.R. No. 116619, D ( #$ % 1, &000
F'(")* *ppellant was found guilty of murder. 3e contends that the lone prosecution eyewitness, Roderic,, is biased for the reason that the deceased victim was his uncle and that he had a grudge against the appellant, and thus said witness wanted to e5act revenge. 3e also contends that Roderic, gave inconsistent testimonies. I))+ * /hether the witness lac,s credibility because of his relation to the victim and grudge against the accused , -.* -he ,inship e5isting between the deceased victim and prosecution witness Roderic, <ere2 as well as the latter1s alleged hostile attitude toward the appellant does not militate against the credibility of the said prosecution eyewitness. It has been held that revenge is a normal reaction of one betrayed, harmed or otherwise of one who has lost a loved one, but it does not &ollo* that the desire to aven%e s'ch betrayal, harm or loss *o'ld incl'de implicatin% even innocent persons. *fter a thorough review of the case, /e find no cogent reason to overturn the decision of the trial court finding the appellant guilty beyond reasonable doubt for ,illing -ababan. <rosecution eyewitness Roderic, gave a clear and convincing account of the stabbing incident which sufficiently established beyond reasonable doubt the liability of the appellant for the death of the victim. 3is presence at the scene of the crime was not successfully disputed by the appellant. .n the other hand, appellant1s uncorroborated defense of alibi is not persuasive and the same pales in the light of the positive identification made by Roderic,.

Evi!ence; 8ur!en of Proof; "ustifying Circumstance BALANAY v). SANDIGANBAYAN

F'(")* ?alanay, a member of the <0< allegedly shot and ,illed *ntabo, a detention prisoner, in order to stop him from escaping. 3e was charged with homicide. -he prosecution presented only one witness in the person of :r. ?enlot who conducted the post mortem e5amination. 3e declared that in his opinion, the tra$ectory of the bullet was going downwards, and that the assailant, at the time he pulled the trigger, was in front of the deceased. :agayluan and 6yas, both members of the <0< testified in favor of defendant, claiming that ?alanay shot the victim while he was trying to escape. ?alanay was found guilty by the Sandiganbayan. I))+ * /hether the sole evidence, the testimony of the lone prosecution witness can prove the defendantEs guilt beyond reasonable doubt. , -.* -he sole evidence is enough. It is a settled $urisprudence that in criminal cases the prosecution has the onus probandi in establishing the guilt of the accused. 3owever, once the de&endant admits the crime char%ed b't raises a .'sti&ication &or its commission, the b'rden o& proo& is shi&ted to him to prove .'sti&ication in order to relieve himself of any criminal liability or to mitigate its gravity. -o prove $ustification, the defendant must rely on the strength of his own evidence and not on the wea,ness of the prosecution, for even if it were wea,, it could not be disbelieved after the accused had admitted the ,illing. In the instant case, by invo,ing the $ustifying circumstance of fulfillment of a duty under *rticle of the Revised <enal +ode, petitioner had the burden of proving that: "a# as the offender, he acted in the performance of a duty, and "b# the in$ury or offense committed was the necessary conseAuence of the due performance or lawful e5ercise of

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such duty. Sadly, however, he failed to prove that these reAuisites were present to $ustify his ,illing of *ntabo. 3is evidence is wea, considering that the defense witnesses had a motive to testify in his favor for they were his co4employees for almost ten years. -hey were biased in favor of the petitioner. * witness is said to be biased when his relation to the cause or to the parties is such that he has an incentive to e5aggerate or give false color to his statements, or to suppress or to pervert the truth, or to state what is false. /ias is that which e5cites the disposition to see and report matters as they are wished for rather than as they are. +orroborative evidence in defense of an accused, if tainted with bias, wea,ened his defense.

Evi!ence; Cre!ibility of a 2itness; Alibi DITC,E v). COURT OF APPEALS '0. TAM G.R. No. 110/99, M'%(< 6, &000
F'(")* *t around F:>> o1cloc, in the evening, -am, his wife, son and a farm helper were on their way home. /hile riding a motorcycle driven by -am they were ambushed at ?gy. San RoAue. -am continued to negotiate the road amid the gunfire. -en meters away from the ambush site, -am loo,ed bac, and this time he saw ) men firing and chasing them. 3e positively identified & of the ) men as petitioner :itche and the now deceased 6spa@a. <etitioner1s defense is basically alibi. 3is testimony was corroborated by defense witness 7ilbuena, his ?arangay Secretary. .n cross4e5amination, witness 7ilbuena admitted that petitioner :itche reAuested him to testify on his behalf. -he trial court convicted petitioner of !rustrated ;urder. .n appeal, the +ourt of *ppeals modified the trial courtEs decision, in that the petitioner is only guilty of *ttempted ;urder. <etitioner filed a ;otion for Reconsideration and a ;otion for 0ew -rial praying that the case be remanded to the lower court for the reception of the testimonies of new witnesses to the effect that at the time relevant to this case, they were residing within the vicinity of the ambush site and that when the shooting incident too, place, it was already dar, as it was already, in their estimate, B:>> o1cloc, and not F:>> o1cloc, in the evening as declared by the prosecution witnesses. -he +ourt of *ppeals denied both ;otion for Reconsideration and ;otion for 0ew -rial. I))+ * . /hether the ;otion for 0ew -rial should be granted on the basis of QallegedlyD newly discovered evidence. &. /hether the defense of alibi should prosper. , -.* . It was correctly dismissed. 0ot only is such allegedly newly discovered evidence necessarily predicated on the alleged incredulousness of the prosecution witness, whose credibility has in fact already been determined by the trial court, but more importantly, it merely attempts to corroborate the earlier defense of the petitioner on the alleged impossibility of positive identification. 3ence, the additional evidence sought to be presented by the defense is not really a ne*ly discovered evidence as contemplated by la* and therefore will not change the result of the case. -he findings of the trial court on the credibility of witnesses deserve great weight, given the clear advantage of a trial $udge over an appellate court in the appreciation of testimonial evidence. +onsidering that the testimonies of the prosecution witnesses were straightforward, consistent and replete with details, aside from the fact that there is nothing in the record which shows that the witnesses were moved by any improper motive, the presumption is that the witnesses were not biased and their testimonies are entitled to full faith and credence. &. /e re$ect the alibi of petitioner that he was in his house preparing the minutes of the *ssociation of ?arangay +ouncil of *sturias. /hen averring alibi, two essential reAuirements must be strictly met in order that the same may be of value to the defense, namely, " # that the accused was not present at the scene of the crime at the time of its commission, and "&# that it was physically impossible for him to be there at the time.

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0ence, &or the de&ense o& alibi to prosper, it is not eno'%h to prove that acc'sed *as some*here else *hen the o&&ense *as committed1 it m'st like*ise be demonstrated that he *as so &ar a*ay that it *as not possible &or him to have been physically present at the place o& the crime or its immediate vicinity at the time o& its commission. *libi is inherently a wea, defense which should be re$ected where the accused was positively identified by an eyewitness to the commission of the offense. -he +ourt of *ppeals correctly convicted :itche more particularly for attempted murder inasmuch the in$ury sustained by the victim was not of such serious nature as would have produced death.

Evi!ence; Cre!ibility PEOPLE v). ?UIBIDO G.R. No. 135113, A+;+)" &3, &000
F'(")* ;ontemayor and his co4accused Puibido, was charged of the crime of robbery with homicide. ?erganio, one of the accused, disclosed to the police his ,nowledge involving the ,illing of Sofio Verguela when he was arrested. 3e confessed that he was in the company of herein appellants when the said crime was committed. ?erganio agreed to testify for the prosecution upon advice of his father after having been assured of immunity from the instant criminal complaint by the prosecution. -rue to his underta,ing, he narrated during the trial a detailed account of the facts and circumstances before, during and after the commission of the crime, sub$ect of the instant criminal case. *fter analy2ing the evidence, the trial court found as follows: It is clear from the testimony of prosecution witness ?erganio that he was certain that ;ontemayor as one of those who robbed and ,illed Sofio Verguela. -hus, the defense of alibi clearly appears nothing but a mere fabrication designed to e5culpate him of the crime charged. Puibido did not put up a defense% instead, he opted to escape from detention. 3is escape even during the pendency of the case is therefore a clear indication of his guilt. I))+ )* . /hether the testimony of ?erganio, a co4conspirator is credible% &. /hether the defense of alibi is to appreciated.

, -.* It is a well4settled rule that testimonial evidence to be believed must not only proceed from the mouth of a credible witness but must foremost be credible in itself. -he test to determine the value or credibility of testimony of a witness is whether or not such is in conformity with common ,nowledge and consistent with the e5perience of man,ind. -he fact that the prosecution witness may have been a co4 conspirator in the commission of the offense is not in itself sufficient to dilute the credibility of, much less a ground to disregard altogether, his testimony. -he general rule is that the testimony of a co4conspirator is not sufficient for conviction unless supported by other evidence. -he reason is that it comes from a polluted source. It must be received with caution because, as is usual with human nature, a culprit, confessing a crime, is li,ely to put the blame as far as possible on others rather than himself. ?y way of e5ception, the testimony of a co4conspirator may, even if uncorroborated, be sufficient as when it is shown to be sincere in itself, because given unhesitatingly and in a straightforward manner, and is full of details which by their nature could not have been the result of deliberate afterthought. &. -he trial court correctly re$ected the defense of alibi of the appellant for the reason that he was positively identified by ?erganio who does not appear to have any motive against him to fabricate evidence. *lso, the distance of the alleged whereabouts of the appellant in relation to the scene of the crime does not preclude any doubt on the physical impossibility of his presence at the locus criminis or its immediate vicinity at the time of its commission. :ecision affirmed.

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Evi!ence; Chil! 2itness PEOPLE v). LIBRANDO, SURDILLAS '0. PURISIMA G.R. No. 13&&21, J+-8 5, &000
F'(")* .n their way home, 6dwin, his daughter *ileen ,and a relative, !ernando, traversed a hilly portion of a trail, when they met accused4appellants. -he three men too, turns hitting 6dwin with pieces of wood until the latter fell and died. *ileen had no trouble identifying the three accused since her father was carrying a lighted torch at the time he was assaulted. *lthough the torch fell to the ground when the deceased was hit by the three accused, the torch continued to burn providing adeAuate illumination for the child to identify her father1s assailants. /hen the three men were as,ed to participate in a police line up during which *ileen identified the assailants. Librando testified that it was 6dwin who started the to swing a piece of wood at him when he chanced upon the latter on his way home with his co4accused. 3e claims that his co4accused did not have a hand in the ,illing of the deceased 6dwin, and that they merely happened to pass by on their way home at the scene of the crime. Surdillas admitted that !ernando was present at that time but claimed that the child, *ileen, was not around. -he trial court did not give credence to the story of the accused4appellants and convicted them of the crime charged on the basis of the testimony of *ileen. I))+ * /hether or not the testimony of the child witness should be given credence. , -.* Settled is the rule that the factual findings of the trial court will not be disturbed on appeal since it is in a better position to appreciate the conflicting testimonies of the witnesses, having observed their deportment and manner of testifying unless certain facts of substance and value have been overloo,ed which, if considered, might affect the result of the case. It is well established that any child regardless of age can be a competent witness if he can perceive and perceiving can ma,e ,nown his perception to others and that he is capable of relating truthfully facts for which he is e5amined. -he child1s competence as a witness are shown by his: "a# capacity of observation% "b# capacity of recollection% and "c# capacity of communication. *s noted by the trial court, *ileen during the trial was not only a picture of innocence and honesty but was possessed with a strong power of observation and recall. /hen as,ed to identify the three "'# accused, she pointed to each of the accused, identifying them by their nic,names, with nary a hesitation. +learly, *ileen1s lone testimony is sufficient to sustain a conviction. /e see no reason how the non4presentation of !ernando as a witness affects the veracity of the child1s testimony in any way. *fter all, the testimony of a single witness, if positive and credible, is sufficient to sustain a conviction even in the absence of corroboration unless such corroboration is e5pressly reAuired by law. -ruth is established not by the number of witnesses but by the Auality of their testimonies.

LEGAL ET,ICS
Lawyer:s Con!uct; .irect Contem-t BUGARING v). ESPA>OL G.R. No. 133090, J'0+'%8 19, &001
F'(")* +ourt of *ppeals affirmed the decision of the Regional -rial +ourt of +avite, declaring petitioner 6fren ?ugaring guilty in direct contempt of court. <etitioner argued that while it might appear that he was carried by his emotions in espousing the case of his client I by persisting to have his documentary evidence mar,ed despite the respondent $udge1s contrary order I he did so in the honest belief

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that he was bound to protect the interest of his client to the best of his ability and with utmost diligence. I))+ * . /hether the petitioner was in contempt of court. &. /hether the penalty imposed was correct.

, -.* . -he +ourt cannot help but notice the sarcasm in the petitioner1s use of the phrase Cyour honor please.C !or, after using said phrase he manifested utter disrespect to the court in his subseAuent utterances. Surely this behavior from an officer of the +ourt cannot and should not be countenanced, if proper decorum is to be observed and maintained during court proceedings. Indeed, the conduct of petitioner in persisting to have his documentary evidence mar,ed to the e5tent of interrupting the opposing counsel and the court showed disrespect to said counsel and the court, was defiant of the court1s system for an orderly proceeding, and obstructed the administration of $ustice. -he power to punish for contempt is inherent in all courts and is essential to the preservation of order in $udicial proceedings and to the enforcement of $udgments, orders, and mandates of the court, and conseAuently, to the due administration of $ustice. :irect contempt is committed in the presence of or so near a court or $udge, as in the case at bar, and can be punished summarily without hearing. 3ence, petitioner cannot claim that there was irregularity in the actuation of respondent $udge in issuing the contempt order inside her chamber without giving the petitioner the opportunity to defend himself or ma,e an immediate reconsideration. -he records show that petitioner was cited in contempt of court during the hearing in the sala of respondent $udge, and he even filed a motion for reconsideration of the contempt order on the same day. -he +ourt of *ppeals aptly stated:
?ut Ca lawyer should not be carried away in espousing his client1s causeC "/'enaseda v. +lavier, 226 SC A 6"2, 626 #. 3e should not forget that he is an officer of the court, bou 0d to e5ert every effort and placed under duty, to assist in the speedy and efficient administration of $ustice pursuant to +anon &, +anons of <rofessional Responsibility " Gome3 v. Presidin% 4'd%e, (C, /r. 52, 63amis City, 2"# SC A "!2, "!# #. 3e should not, therefore, misuse the rules of procedure to defeat the ends of $ustice per Rule >.>'.

&. *lthough respondent $udge was $ustified in citing petitioner in direct contempt of court, she erred in imposing a fine in the amount of <',>>>.>> which e5ceeded the ceiling of <&,>>>.>> under S+ *dm. +irc. 0o. &&4=J which too, effect on 0ovember F, ==J. It was not established that the fine was imposed in bad faith. -he +ourt of *ppeals thus properly ordered the return of the e5cess of < ,>>>.>>. *side from the fine, the three days imprisonment meted out to petitioner was $ustified and within the >4day limit prescribed in Section , Rule B of the Rules of +ourt, as amended. It is our view and we hold, therefore, that the +ourt of *ppeals did not commit any reversible error in its assailed decision

"u!icial Con!uct MANIO v. FERNANDO A.M. No. RTJ-00-12/9, S !" #$ % &9, &000
F'(")* Jeanet ;anio charged Judge !ernando with Cgiving me a hard timeC by free2ing Call my accounts "time deposits and Savings *ccount# at the ban,,C thus preventing her from withdrawing money needed Cto buy a parcel of land.C ?ecause of her complaint against respondent Judge, the latter filed a case for per$ury against her. -o her surprise, a warrant of arrest was served upon her. -hereafter, ;anio reAuested that her complaint against respondent Judge be dismissed. In another letter dated on the same day, she stated that she is withdrawing her complaint since it was out of ignorance and her anger at respondent Judge that she complained against him. -he case was referred to a consultant of the .ffice of the +ourt *dministrator ".+*# to conduct the necessary investigation, report and recommendation. 3owever, no investigation ensued since on the dates the case was set for hearing, complainant did not appear.

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I))+ * /hether Judge !ernando may be held liable for misconduct in office. , -.* -here being no evidence upon which Judge !ernando may be held liable for misconduct in office, the consultant of the .+* recommended the dismissal of the complaint against respondent Judge !ernando. 8nder the circumstances, we have no other recourse e5cept to approve the well4ta,en recommendation of the investigator and dismiss the case. -here is no evidence against respondent Judge.

"u!icial Con!uct; 4ssuance of Or!er of Release SANTIAGO v). JUDGE JOVELLANOS A.M. No. MTJ-00-1&/9, A+;+)" 1, &000
F'(")* +omplainant Jesusa ;. Santiago alleges that she is the private complainant in several criminal cases, all entitled: C<eople of the <hilippines vs. Violeta ;adera,C 8pon failure of the accused to appear at the scheduled hearing of the criminal cases, she was arrested on July &, ==F pursuant to a bench warrant issued against her and detained at the municipal $ail of San Ildefonso, ?ulacan. She was released the following day pursuant to the .rder of Release dated *pril ', ==F issued by respondent Judge Jovellanos. +omplainant Santiago Auestions the propriety of the said .rder of Release on two "&# grounds: first, the authority of Judge Jovellanos to issue the said .rder of Release and, second, the date of issuance thereof. Santiago points out that ;adera was arrested and detained in San Ildefonso, ?ulacan and her cases were pending before the ;-+ of said municipality but it was respondent $udge from the ;+-+ of *lcala4?autista, <angasinan which issued the .rder of Release. *lso, while ;adera was arrested on July &, ==F, the .rder of Release was dated *pril ', ==F. *n investigation was ensued against Judge Jovellanos and the investigating committee found out that the $udge deliberately lied when he said he cancelled the property bond posted by the accused for her failure to register the property within ten " ># days to the proper office. 0o property bond had reached the +ourt that issued the warrant of arrest. Judge Jovellanos had ta,en advantage of his position as <residing Judge, ;+-+, *lcala4?autista, <angasinan, ,nowing fully well that he issued an order for the release of a detained person, even without the approved property bond. I))+ * /hether Judge JovellanoEs issuance of the .rder of Release was proper.

, -.* -his +ourt agrees with the factual findings of the investigating $udge and the .ffice of the +ourt *dministrator. In Victorino +ru2 v. Judge Reynold P. 9ane2a, Section 'J of ?< ?lg. &= and Sections B and = of Rule ) are to be construed and applied in con$unction with each other. -he abovecited rules do not give the ;etropolitan -rial Judge blan,et authority to grant applications for bail. -here are prereAuisites to be complied with. !irst, the application for bail must be filed in the court where the case is pending. In the absence or unavailability of the $udge thereof, the application for bail may be filed with another branch of the same court within the province or city. Second, if the accused is arrested in a province, city or municipality other than where the case is pending, bail may be filed with any regional trial court of the place. If no $udge thereof is available, then with any metropolitan trial $udge or municipal circuit trial $udge therein. It is clear from this +ourt1s disAuisition in 7ane3a that Judge Jovellanos1 reliance on Section =, Rule ) of the =(J Rules of +riminal <rocedure is misplaced. 7ane3a, in fact, only highlights that Judge Jovellanos, contrary to prescribed procedures, approved the applications for bail of accused whose cases were not only pending in other courts but who were li,ewise arrested and detained outside his territorial $urisdiction. It also does not appear from the records of these cases that the $udges having $urisdiction over the accused were absent or otherwise unavailable to act upon their applications for bail. /orse, Judge Jovellanos ordered the release of ;adera without the corresponding bail bond being posted. Judge Jovellanos1 invocation of good faith and his plea that he was only moved by humanitarian considerations cannot e5cuse his conduct. /e have often stressed that

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Cas an advocate of $ustice and a visible representation of the law, a $udge is e5pected to ,eep abreast with and be proficient in the interpretation of our laws. * $udge should be acAuainted with legal norms and precepts as well as with statutes and procedural rules. 8nfamiliarity with the Rules of +ourt is a sign of incompetence which goes against +anon ', specifically Rule '.> , of the +ode of Judicial +onduct. 3aving accepted the e5alted position of a $udge, Judge Jovellanos owes the public and the court he sits in proficiency in the law. 3e must have the basic rules at the palm of his hands as he is e5pected to maintain professional competence at all times.

.isbarment UI v). ATTY. IRIS BONIFACIO ADM. CASE No. 3319, J+0 /, &000
F'(")* +omplainant Leslie 8i was married to +arlos 8i. -hey had four children. Sometime in :ecember =(B, however, complainant found out that her husband, +arlos 8i, was carrying on an illicit relationship with respondent *tty. Iris ?onifacio, a graduate of the +ollege of Law of the 8niversity of the <hilippines was admitted to the <hilippine ?ar in =(& with whom he begot a daughter sometime in =(F, and that they had been living together. -his illicit relationship was admitted by +arlos to his wife. +onseAuently, complainant went to respondentEs office and introduced herself as the legal wife of +arlos. Respondent, on the other hand, told the complainant that her relationship with the complainantEs husband was over. 3owever, after Auite sometime, complainant learned that the illicit relationship continues and that respondent had another child. * complaint for disbarment, was then filed on *ugust , =(= by the complainant against respondent *tty. Iris ?onifacio before the +ommission on ?ar :iscipline of the Integrated ?ar of the <hilippines on the ground of immorality, more particularly, for carrying on an illicit relationship with the complainant1s husband, +arlos 8i. It is respondent1s contention that her relationship with +arlos 8i is not illicit because they were married abroad and that after June =(( when respondent discovered +arlos 8i1s true civil status, she cut off all her ties with him. Respondent averred that +arlos 8i never lived with her in *labang, and that he resided in, San Juan, ;etro ;anila. It was respondent who lived in *labang in a house which belonged to her mother, Rosalinda L. ?onifacio% and that the said house was built e5clusively from her parents1 funds. -he ?oard of 7overnors of the Integrated ?ar of the <hilippines dismissed the complaint for lac, of merit. *tty. Iris ?onifacio was, however reprimanded. I))+ * /hether the alleged illicit relationship with a married man constitutes grossly immoral conduct. , -.* /e agree with the findings. * lawyer may be disbarred for Cgrossly immoral conduct, or by reason of his conviction of a crime involving moral turpitudeC. * member of the bar should have moral integrity in addition to professional probity. It is difficult to state with precision and to fi5 an infle5ible standard as to what is Cgrossly immoral conductC or to specify the moral delinAuency and obliAuity which render a lawyer unworthy of continuing as a member of the bar. -he rule implies that what appears to be unconventional behavior to the straight4 laced may not be the immoral conduct that warrants disbarment. Immoral conduct has been defined as Cthat conduct which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community.C In the case at bar, it is the claim of respondent *tty. ?onifacio that when she met +arlos 8i, she ,new and believed him to be single. Respondent fell in love with him and they got married and as a result of such marriage, she gave birth to two "&# children. 8pon her ,nowledge of the true civil status of +arlos 8i, she left him. Simple as the facts of the case may sound, the effects of the actuations of respondent are not only far from simple, they will have a rippling effect on how the standard norms of our legal practitioners should be defined. <erhaps morality in our liberal society today is a far cry from what it used to be before. -his permissiveness

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notwithstanding, lawyers, as ,eepers of public faith, are burdened with a higher degree of social responsibility and thus must handle their personal affairs with greater caution. -he facts of this case lead us to believe that perhaps respondent would not have found herself in such a compromising situation had she e5ercised prudence and been more vigilant in finding out more about +arlos 8i1s personal bac,ground prior to her intimate involvement with him. Surely, circumstances e5isted which should have at least aroused respondent1s suspicion that something was amiss in her relationship with +arlos 8i, and moved her to as, probing Auestions. *ll these ta,en together leads to the inescapable conclusion that respondent was imprudent in managing her personal affairs. 3owever, the fact remains that her relationship with +arlos 8i, clothed as it was with what respondent believed was a valid marriage, cannot be considered immoral. !or immorality connotes conduct that shows indifference to the moral norms of society and the opinion of good and respectable members of the community. ;oreover, for such conduct to warrant disciplinary action, the same must be Cgrossly immoral,C that is, it must be so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree. /e have held that Ca member o& the /ar and o&&icer o& the co'rt is not only re,'ired to re&rain &rom ad'ltero's relationships . . . b't m'st also so behave himsel& as to avoid scandali3in% the p'blic by creatin% the belie& that he is &lo'tin% those moral standards.C Respondent1s act of immediately distancing herself from +arlos 8i upon discovering his true civil status belies $ust that alleged moral indifference and proves that she had no intention of flaunting the law and the high moral standard of the legal profession.

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