Practice Court Assignment No.
1|1
1. G.R. No. L-19450 May 27, 1965
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SIMPLICIO VILLANUEVA, defendant-appellant.
SYLLABUS
1. ATTORNEYS-AT-LAW EMPLOYED IN THE GOVERNMENT; PROHIBITION
TO ENGAGE IN PRIVATE PRACTICE; MEANING. Practice is more than an
isolated appearance, for it consists in frequent or customary actions a
succession of acts of the same kind. The practice of law by attorneys
employed in the government, to fall within the prohibition of statute has
been interpreted as customarily or habitually holding ones self out to the
public, as a lawyer and demanding payment for such services. The
appearance as counsel on one occasion, is not conclusive as determinative
of engagement in the private practice of law. The word private practice of
law implies that one must have presented himself to be in the active and
continued practice of the legal profession and that his professional services
are available to the public for a compensation, as a source of his livelihood
or in consideration of his said services.
2. ID.; ID.; ASSISTANT CITY ATTORNEY HANDLING CASE FOR RELATIVE
WITH PERMISSION OF SUPERIOR NOT IN PROHIBITED PRIVATE PRACTICE.
The isolated appearance as a private prosecutor, previously authorized
by his superior, of an assistant city attorney in a criminal case for malicious
mischief before a justice of the peace court where the offended party is his
relative, does not violate Section 32, Rule 127, now Sec. 35, Rule 138,
Revised Rules of Court, which bars certain attorneys from practicing.
PAREDES, J.:
On September 4, 1959, the Chief of Police of Alaminos, Laguna, charged
Simplicio Villanueva with the Crime of Malicious Mischief before the Justice
of the Peace Court of said municipality. Said accused was represented by
counsel de officio but later on replaced by counsel de parte. The
complainant in the same case was represented by City Attorney Ariston
Fule of San Pablo City, having entered his appearance as private
prosecutor, after securing the permission of the Secretary of Justice. The
condition of his appearance as such, was that every time he would appear
at the trial of the case, he would be considered on official leave of absence,
and that he would not receive any payment for his services. The
appearance of City Attorney Fule as private prosecutor was questioned by
the counsel for the accused, invoking the case of Aquino, et al. vs. Blanco,
et al.,
L-1532, Nov. 28, 1947, wherein it was ruled that "when an attorney had
been appointed to the position of Assistant Provincial Fiscal or City Fiscal
and therein qualified, by operation of law, he ceased to engage in private
law practice." Counsel then argued that the JP Court in entertaining the
appearance of City Attorney Fule in the case is a violation of the above
ruling. On December 17, 1960 the JP issued an order sustaining the
legality of the appearance of City Attorney Fule.
Under date of January 4, 1961, counsel for the accused presented a
"Motion to Inhibit Fiscal Fule from Acting as Private Prosecutor in this
Case," this time invoking Section 32, Rule 27, now Sec. 35, Rule 138,
Revised Rules of Court, which bars certain attorneys from practicing.
Counsel claims that City Attorney Fule falls under this limitation. The JP
Court ruled on the motion by upholding the right of Fule to appear and
further stating that he (Fule) was not actually enagaged in private law
practice. This Order was appealed to the CFI of Laguna, presided by the
Hon. Hilarion U. Jarencio, which rendered judgment on December 20,
1961, the pertinent portions of which read:
The present case is one for malicious mischief. There being no
reservation by the offended party of the civil liability, the civil
action was deemed impliedly instituted with the criminal action.
The offended party had, therefore, the right to intervene in the
case and be represented by a legal counsel because of her interest
in the civil liability of the accused.
Sec. 31, Rule 127 of the Rules of Court provides that in the court of
a justice of the peace a party may conduct his litigation in person,
with the aid of an agent or friend appointed by him for that
purpose, or with the aid of an attorney. Assistant City Attorney Fule
appeared in the Justice of the Peace Court as an agent or friend of
the offended party. It does not appear that he was being paid for
his services or that his appearance was in a professional capacity.
As Assistant City Attorney of San Pablo he had no control or
intervention whatsoever in the prosecution of crimes committed in
the municipality of Alaminos, Laguna, because the prosecution of
criminal cases coming from Alaminos are handled by the Office of
 Practice Court Assignment No. 1|2

the Provincial Fiscal and not by the City Attornev of San Pablo.
There could be no possible conflict in the duties of Assistant City
Attorney Fule as Assistant City Attorney of San Pablo and as
private prosecutor in this criminal case. On the other hand, as
already pointed out, the offended party in this criminal case had a
right to be represented by an agent or a friend to protect her rights
in the civil action which was impliedly instituted together with the
criminal action.
determinative of engagement in the private practice of law. The following
observation of the Solicitor General is noteworthy:
Essentially, the word private practice of law implies that one must
have presented himself to be in the active and continued practice
of the legal profession and that his professional services are
available to the public for a compensation, as a source of his
livelihood or in consideration of his said services.

In view of the foregoing, this Court holds that Asst. City Attorney
Ariston D. Fule may appear before the Justice of the Peace Court of
Alaminos, Laguna as private prosecutor in this criminal case as an
agent or a friend of the offended party.
WHEREFORE, the appeal from the order of the Justice of the Peace
Court of Alaminos, Laguna, allowing the apprearance of Ariston D.
Fule as private prosecutor is dismissed, without costs.
For one thing, it has never been refuted that City Attorney Fule had been
given permission by his immediate superior, the Secretary of Justice, to
represent the complainant in the case at bar, who is a relative.
CONFORMABLY WITH ALL THE FOREGOING, the decision appealed from
should be, as it is hereby affirmed, in all respects, with costs against
appellant..

The above decision is the subject of the instant proceeding.

The appeal should be dismissed, for patently being without

merits.1wph1.t

Aside from the considerations advanced by the learned trial judge,

heretofore reproduced, and which we consider plausible, the fallacy of the
theory of defense counsel lies in his confused interpretation of Section 32
of Rule 127 (now Sec. 35, Rule 138, Revised Rules), which provides that
"no judge or other official or employee of the superior courts or of the
office of the Solicitor General, shall engage in private practice as a member
of the bar or give professional advice to clients." He claims that City
Attorney Fule, in appearing as private prosecutor in the case was engaging
in private practice. We believe that the isolated appearance of City
Attorney Fule did not constitute private practice within the meaning and
contemplation of the Rules. Practice is more than an isolated appearance,
for it consists in frequent or customary actions, a succession of acts of the
same kind. In other words, it is frequent habitual exercise (State vs.
Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall
within the prohibition of statute has been interpreted as customarily or
habitually holding one's self out to the public, as customarily and
demanding payment for such services (State vs. Bryan, 4 S.E. 522, 98 N.C.
644, 647). The appearance as counsel on one occasion is not conclusive as
 Practice Court Assignment No. 1|3

2. G.R. No. 100113 September 3, 1991 Black defines "practice of law" as:

RENATO CAYETANO, petitioner, The rendition of services requiring the knowledge and the application of
vs. legal principles and technique to serve the interest of another with his
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON consent. It is not limited to appearing in court, or advising and assisting in
APPOINTMENT, and HON. GUILLERMO CARAGUE, in his capacity as the conduct of litigation, but embraces the preparation of pleadings, and
Secretary of Budget and Management, respondents. other papers incident to actions and special proceedings, conveyancing, the
preparation of legal instruments of all kinds, and the giving of all legal
PARAS, J.: advice to clients. It embraces all advice to clients and all actions taken for
them in matters connected with the law. An attorney engages in the
We are faced here with a controversy of far-reaching proportions. While practice of law by maintaining an office where he is held out to be-an
ostensibly only legal issues are involved, the Court's decision in this case attorney, using a letterhead describing himself as an attorney, counseling
would indubitably have a profound effect on the political aspect of our clients in legal matters, negotiating with opposing counsel about pending
national existence. litigation, and fixing and collecting fees for services rendered by his
associate. (Black's Law Dictionary, 3rd ed.)
The 1987 Constitution provides in Section 1 (1), Article IX-C:
The practice of law is not limited to the conduct of cases in court. (Land
There shall be a Commission on Elections composed of a Chairman and six Title Abstract and Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650) A
Commissioners who shall be natural-born citizens of the Philippines and, at person is also considered to be in the practice of law when he:
the time of their appointment, at least thirty-five years of age, holders of a
college degree, and must not have been candidates for any elective ... for valuable consideration engages in the business of advising person,
position in the immediately preceding -elections. However, a majority firms, associations or corporations as to their rights under the law, or
thereof, including the Chairman, shall be members of the Philippine Bar appears in a representative capacity as an advocate in proceedings
who have been engaged in the practice of law for at least ten years. pending or prospective, before any court, commissioner, referee, board,
(Emphasis supplied) body, committee, or commission constituted by law or authorized to settle
controversies and there, in such representative capacity performs any act
The aforequoted provision is patterned after Section l(l), Article XII-C of or acts for the purpose of obtaining or defending the rights of their clients
the 1973 Constitution which similarly provides: under the law. Otherwise stated, one who, in a representative capacity,
engages in the business of advising clients as to their rights under the law,
or while so engaged performs any act or acts either in court or outside of
There shall be an independent Commission on Elections composed of a
court for that purpose, is engaged in the practice of law. (State ex. rel.
Chairman and eight Commissioners who shall be natural-born citizens of
Mckittrickv..C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852)
the Philippines and, at the time of their appointment, at least thirty-five
years of age and holders of a college degree. However, a majority thereof,
including the Chairman, shall be members of the Philippine Bar who have This Court in the case of Philippine Lawyers Association v.Agrava, (105
been engaged in the practice of law for at least ten years.' (Emphasis Phil. 173,176-177) stated:
supplied)
The practice of law is not limited to the conduct of cases or litigation in
Regrettably, however, there seems to be no jurisprudence as to what court; it embraces the preparation of pleadings and other papers incident
constitutes practice of law as a legal qualification to an appointive office. to actions and special proceedings, the management of such actions and
proceedings on behalf of clients before judges and courts, and in addition,
conveying. In general, all advice to clients, and all action taken for them in

matters connected with the law incorporation services, assessment and
condemnation services contemplating an appearance before a judicial
body, the foreclosure of a mortgage, enforcement of a creditor's claim in
bankruptcy and insolvency proceedings, and conducting proceedings in
attachment, and in matters of estate and guardianship have been held to
constitute law practice, as do the preparation and drafting of legal
instruments, where the work done involves the determination by the
trained legal mind of the legal effect of facts and conditions. (5 Am. Jr. p.
262, 263). (Emphasis supplied)
Practice of law under modem conditions consists in no small part of work
performed outside of any court and having no immediate relation to
proceedings in court. It embraces conveyancing, the giving of legal advice
on a large variety of subjects, and the preparation and execution of legal
instruments covering an extensive field of business and trust relations and
other affairs. Although these transactions may have no direct connection
with court proceedings, they are always subject to become involved in
litigation. They require in many aspects a high degree of legal skill, a wide
experience with men and affairs, and great capacity for adaptation to
difficult and complex situations. These customary functions of an attorney
or counselor at law bear an intimate relation to the administration of
justice by the courts. No valid distinction, so far as concerns the question
set forth in the order, can be drawn between that part of the work of the
lawyer which involves appearance in court and that part which involves
advice and drafting of instruments in his office. It is of importance to the
welfare of the public that these manifold customary functions be performed
by persons possessed of adequate learning and skill, of sound moral
character, and acting at all times under the heavy trust obligations to
clients which rests upon all attorneys. (Moran, Comments on the Rules of
Court, Vol. 3 [1953 ed.] , p. 665-666, citing In re Opinion of the
Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar Assoc. v.
Automobile Service Assoc. [R.I.] 179 A. 139,144). (Emphasis ours)
The University of the Philippines Law Center in conducting orientation
briefing for new lawyers (1974-1975) listed the dimensions of the practice
of law in even broader terms as advocacy, counselling and public service.
One may be a practicing attorney in following any line of employment in
the profession. If what he does exacts knowledge of the law and is of a
kind usual for attorneys engaging in the active practice of their profession,
and he follows some one or more lines of employment such as this he is a
Practice Court Assignment No. 1|4
practicing attorney at law within the meaning of the statute. (Barr v.
Cardell, 155 NW 312)
Practice of law means any activity, in or out of court, which requires the
application of law, legal procedure, knowledge, training and experience.
"To engage in the practice of law is to perform those acts which are
characteristics of the profession. Generally, to practice law is to give notice
or render any kind of service, which device or service requires the use in
any degree of legal knowledge or skill." (111 ALR 23)
The following records of the 1986 Constitutional Commission show that it
has adopted a liberal interpretation of the term "practice of law."
MR. FOZ. Before we suspend the session, may I make a manifestation
which I forgot to do during our review of the provisions on the Commission
on Audit. May I be allowed to make a very brief statement?
THE PRESIDING OFFICER (Mr. Jamir).
The Commissioner will please proceed.
MR. FOZ. This has to do with the qualifications of the members of the
Commission on Audit. Among others, the qualifications provided for by
Section I is that "They must be Members of the Philippine Bar" I am
quoting from the provision "who have been engaged in the practice of
law for at least ten years".
To avoid any misunderstanding which would result in excluding members
of the Bar who are now employed in the COA or Commission on Audit, we
would like to make the clarification that this provision on qualifications
regarding members of the Bar does not necessarily refer or involve actual
practice of law outside the COA We have to interpret this to mean that as
long as the lawyers who are employed in the COA are using their legal
knowledge or legal talent in their respective work within COA, then they
are qualified to be considered for appointment as members or
commissioners, even chairman, of the Commission on Audit.
This has been discussed by the Committee on Constitutional Commissions
and Agencies and we deem it important to take it up on the floor so that
this interpretation may be made available whenever this provision on the

qualifications as regards members of the Philippine Bar engaging in the
practice of law for at least ten years is taken up.
MR. OPLE. Will Commissioner Foz yield to just one question.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is
equivalent to the requirement of a law practice that is set forth in the
Article on the Commission on Audit?
MR. FOZ. We must consider the fact that the work of COA, although it is
auditing, will necessarily involve legal work; it will involve legal work. And,
therefore, lawyers who are employed in COA now would have the
necessary qualifications in accordance with the Provision on qualifications
under our provisions on the Commission on Audit. And, therefore, the
answer is yes.
MR. OPLE. Yes. So that the construction given to this is that this is
equivalent to the practice of law.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Thank you.
... ( Emphasis supplied)
Section 1(1), Article IX-D of the 1987 Constitution, provides, among
others, that the Chairman and two Commissioners of the Commission on
Audit (COA) should either be certified public accountants with not less than
ten years of auditing practice, or members of the Philippine Bar who have
been engaged in the practice of law for at least ten years. (emphasis
supplied)
Corollary to this is the term "private practitioner" and which is in many
ways synonymous with the word "lawyer." Today, although many lawyers
do not engage in private practice, it is still a fact that the majority of
lawyers are private practitioners. (Gary Munneke, Opportunities in Law
Careers [VGM Career Horizons: Illinois], [1986], p. 15).
Practice Court Assignment No. 1|5
At this point, it might be helpful to define private practice. The term, as
commonly understood, means "an individual or organization engaged in the
business of delivering legal services." (Ibid.). Lawyers who practice alone
are often called "sole practitioners." Groups of lawyers are called "firms."
The firm is usually a partnership and members of the firm are the partners.
Some firms may be organized as professional corporations and the
members called shareholders. In either case, the members of the firm are
the experienced attorneys. In most firms, there are younger or more
inexperienced salaried attorneyscalled "associates." (Ibid.).
The test that defines law practice by looking to traditional areas of law
practice is essentially tautologous, unhelpful defining the practice of law as
that which lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West
Publishing Co.: Minnesota, 1986], p. 593). The practice of law is defined as
the performance of any acts . . . in or out of court, commonly understood
to be the practice of law. (State Bar Ass'n v. Connecticut Bank & Trust Co.,
145 Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v.
Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]). Because lawyers
perform almost every function known in the commercial and governmental
realm, such a definition would obviously be too global to be
workable.(Wolfram, op. cit.).
The appearance of a lawyer in litigation in behalf of a client is at once the
most publicly familiar role for lawyers as well as an uncommon role for the
average lawyer. Most lawyers spend little time in courtrooms, and a large
percentage spend their entire practice without litigating a case. (Ibid., p.
593). Nonetheless, many lawyers do continue to litigate and the litigating
lawyer's role colors much of both the public image and the self perception
of the legal profession. (Ibid.).
In this regard thus, the dominance of litigation in the public mind reflects
history, not reality. (Ibid.). Why is this so? Recall that the late Alexander
SyCip, a corporate lawyer, once articulated on the importance of a lawyer
as a business counselor in this wise: "Even today, there are still
uninformed laymen whose concept of an attorney is one who principally
tries cases before the courts. The members of the bench and bar and the
informed laymen such as businessmen, know that in most developed
societies today, substantially more legal work is transacted in law offices
than in the courtrooms. General practitioners of law who do both litigation
and non-litigation work also know that in most cases they find themselves
spending more time doing what [is] loosely desccribe[d] as business
 Practice Court Assignment No. 1|6

counseling than in trying cases. The business lawyer has been described as decisional contexts, are finding that understanding the major emerging
the planner, the diagnostician and the trial lawyer, the surgeon. I[t] need trends in corporation law is indispensable to intelligent decision-making.
not [be] stress[ed] that in law, as in medicine, surgery should be avoided
where internal medicine can be effective." (Business Star, "Corporate Constructive adjustment to major corporate problems of today requires an
Finance Law," Jan. 11, 1989, p. 4). accurate understanding of the nature and implications of the corporate law
research function accompanied by an accelerating rate of information
In the course of a working day the average general practitioner wig engage accumulation. The recognition of the need for such improved corporate
in a number of legal tasks, each involving different legal doctrines, legal legal policy formulation, particularly "model-making" and "contingency
skills, legal processes, legal institutions, clients, and other interested planning," has impressed upon us the inadequacy of traditional procedures
parties. Even the increasing numbers of lawyers in specialized practice wig in many decisional contexts.
usually perform at least some legal services outside their specialty. And
even within a narrow specialty such as tax practice, a lawyer will shift from In a complex legal problem the mass of information to be processed, the
one legal task or role such as advice-giving to an importantly different one sorting and weighing of significant conditional factors, the appraisal of
such as representing a client before an administrative agency. major trends, the necessity of estimating the consequences of given
(Wolfram, supra, p. 687). courses of action, and the need for fast decision and response in situations
of acute danger have prompted the use of sophisticated concepts of
By no means will most of this work involve litigation, unless the lawyer is information flow theory, operational analysis, automatic data processing,
one of the relatively rare types a litigator who specializes in this work to and electronic computing equipment. Understandably, an improved
the exclusion of much else. Instead, the work will require the lawyer to decisional structure must stress the predictive component of the policy-
have mastered the full range of traditional lawyer skills of client making process, wherein a "model", of the decisional context or a segment
counselling, advice-giving, document drafting, and negotiation. And thereof is developed to test projected alternative courses of action in terms
increasingly lawyers find that the new skills of evaluation and mediation of futuristic effects flowing therefrom.
are both effective for many clients and a source of employment. (Ibid.).
Although members of the legal profession are regularly engaged in
Most lawyers will engage in non-litigation legal work or in litigation work predicting and projecting the trends of the law, the subject of corporate
that is constrained in very important ways, at least theoretically, so as to finance law has received relatively little organized and formalized attention
remove from it some of the salient features of adversarial litigation. Of in the philosophy of advancing corporate legal education. Nonetheless, a
these special roles, the most prominent is that of prosecutor. In some cross-disciplinary approach to legal research has become a vital necessity.
lawyers' work the constraints are imposed both by the nature of the client
and by the way in which the lawyer is organized into a social unit to Certainly, the general orientation for productive contributions by those
perform that work. The most common of these roles are those of corporate trained primarily in the law can be improved through an early introduction
practice and government legal service. (Ibid.). to multi-variable decisional context and the various approaches for
handling such problems. Lawyers, particularly with either a master's or
In several issues of the Business Star, a business daily, herein below doctorate degree in business administration or management, functioning at
quoted are emerging trends in corporate law practice, a departure from the the legal policy level of decision-making now have some appreciation for
traditional concept of practice of law. the concepts and analytical techniques of other professions which are
currently engaged in similar types of complex decision-making.
We are experiencing today what truly may be called a revolutionary
transformation in corporate law practice. Lawyers and other professional Truth to tell, many situations involving corporate finance problems would
groups, in particular those members participating in various legal-policy require the services of an astute attorney because of the complex legal
implications that arise from each and every necessary step in securing and
 Practice Court Assignment No. 1|7

maintaining the business issue raised. (Business Star, "Corporate Finance perceived by many as glamorous, tills is an area coveted by corporate
Law," Jan. 11, 1989, p. 4). lawyers. In most cases, however, the overseas jobs go to experienced
attorneys while the younger attorneys do their "international practice" in
In our litigation-prone country, a corporate lawyer is assiduously referred law libraries. (Business Star, "Corporate Law Practice," May 25,1990, p. 4).
to as the "abogado de campanilla." He is the "big-time" lawyer, earning big
money and with a clientele composed of the tycoons and magnates of This brings us to the inevitable, i.e., the role of the lawyer in the realm of
business and industry. finance. To borrow the lines of Harvard-educated lawyer Bruce Wassertein,
to wit: "A bad lawyer is one who fails to spot problems, a good lawyer is
Despite the growing number of corporate lawyers, many people could not one who perceives the difficulties, and the excellent lawyer is one who
explain what it is that a corporate lawyer does. For one, the number of surmounts them." (Business Star, "Corporate Finance Law," Jan. 11, 1989,
attorneys employed by a single corporation will vary with the size and type p. 4).
of the corporation. Many smaller and some large corporations farm out all
their legal problems to private law firms. Many others have in-house Today, the study of corporate law practice direly needs a "shot in the arm,"
counsel only for certain matters. Other corporation have a staff large so to speak. No longer are we talking of the traditional law teaching
enough to handle most legal problems in-house. method of confining the subject study to the Corporation Code and the
Securities Code but an incursion as well into the intertwining modern
A corporate lawyer, for all intents and purposes, is a lawyer who handles management issues.
the legal affairs of a corporation. His areas of concern or jurisdiction may
include, inter alia: corporate legal research, tax laws research, acting out Such corporate legal management issues deal primarily with three (3)
as corporate secretary (in board meetings), appearances in both courts and types of learning: (1) acquisition of insights into current advances which
other adjudicatory agencies (including the Securities and Exchange are of particular significance to the corporate counsel; (2) an introduction
Commission), and in other capacities which require an ability to deal with to usable disciplinary skins applicable to a corporate counsel's management
the law. responsibilities; and (3) a devotion to the organization and management of
the legal function itself.
At any rate, a corporate lawyer may assume responsibilities other than the
legal affairs of the business of the corporation he is representing. These These three subject areas may be thought of as intersecting circles, with a
include such matters as determining policy and becoming involved in shared area linking them. Otherwise known as "intersecting managerial
management. ( Emphasis supplied.) jurisprudence," it forms a unifying theme for the corporate counsel's total
learning.
In a big company, for example, one may have a feeling of being isolated
from the action, or not understanding how one's work actually fits into the Some current advances in behavior and policy sciences affect the counsel's
work of the orgarnization. This can be frustrating to someone who needs to role. For that matter, the corporate lawyer reviews the globalization
see the results of his work first hand. In short, a corporate lawyer is process, including the resulting strategic repositioning that the firms he
sometimes offered this fortune to be more closely involved in the running provides counsel for are required to make, and the need to think about a
of the business. corporation's; strategy at multiple levels. The salience of the nation-state is
being reduced as firms deal both with global multinational entities and
Moreover, a corporate lawyer's services may sometimes be engaged by a simultaneously with sub-national governmental units. Firms increasingly
multinational corporation (MNC). Some large MNCs provide one of the few collaborate not only with public entities but with each other often with
opportunities available to corporate lawyers to enter the international law those who are competitors in other arenas.
field. After all, international law is practiced in a relatively small number of
companies and law firms. Because working in a foreign country is
 Practice Court Assignment No. 1|8

Also, the nature of the lawyer's participation in decision-making within the loops, inventory levels, and rates of flow, enable users to simulate all sorts
corporation is rapidly changing. The modem corporate lawyer has gained a of systematic problems physical, economic, managerial, social, and
new role as a stakeholder in some cases participating in the organization psychological. New programming techniques now make the system
and operations of governance through participation on boards and other dynamics principles more accessible to managers including corporate
decision-making roles. Often these new patterns develop alongside existing counsels. (Emphasis supplied)
legal institutions and laws are perceived as barriers. These trends are
complicated as corporations organize for global operations. ( Emphasis Second Decision Analysis. This enables users to make better decisions
supplied) involving complexity and uncertainty. In the context of a law department,
it can be used to appraise the settlement value of litigation, aid in
The practising lawyer of today is familiar as well with governmental policies negotiation settlement, and minimize the cost and risk involved in
toward the promotion and management of technology. New collaborative managing a portfolio of cases. (Emphasis supplied)
arrangements for promoting specific technologies or competitiveness more
generally require approaches from industry that differ from older, more Third Modeling for Negotiation Management. Computer-based models can
adversarial relationships and traditional forms of seeking to influence be used directly by parties and mediators in all lands of negotiations. All
governmental policies. And there are lessons to be learned from other integrated set of such tools provide coherent and effective negotiation
countries. In Europe, Esprit, Eureka and Race are examples of collaborative support, including hands-on on instruction in these techniques. A
efforts between governmental and business Japan's MITI is world famous. simulation case of an international joint venture may be used to illustrate
(Emphasis supplied) the point.

Following the concept of boundary spanning, the office of the Corporate
Counsel comprises a distinct group within the managerial structure of all
kinds of organizations. Effectiveness of both long-term and temporary
groups within organizations has been found to be related to indentifiable
factors in the group-context interaction such as the groups actively revising
their knowledge of the environment coordinating work with outsiders,
promoting team achievements within the organization. In general, such
external activities are better predictors of team performance than internal
group processes.
[Be this as it may,] the organization and management of the legal function,
concern three pointed areas of consideration, thus:
Preventive Lawyering. Planning by lawyers requires special skills that
comprise a major part of the general counsel's responsibilities. They differ
from those of remedial law. Preventive lawyering is concerned with
minimizing the risks of legal trouble and maximizing legal rights for such
legal entities at that time when transactional or similar facts are being
considered and made.

In a crisis situation, the legal managerial capabilities of the corporate
lawyer vis-a-vis the managerial mettle of corporations are challenged.
Current research is seeking ways both to anticipate effective managerial
procedures and to understand relationships of financial liability and
insurance considerations. (Emphasis supplied)
Regarding the skills to apply by the corporate counsel, three factors
are apropos:
First System Dynamics. The field of systems dynamics has been found an
effective tool for new managerial thinking regarding both planning and
pressing immediate problems. An understanding of the role of feedback
Managerial Jurisprudence. This is the framework within which are
undertaken those activities of the firm to which legal consequences attach.
It needs to be directly supportive of this nation's evolving economic and
organizational fabric as firms change to stay competitive in a global,
interdependent environment. The practice and theory of "law" is not
adequate today to facilitate the relationships needed in trying to make a
global economy work.
Organization and Functioning of the Corporate Counsel's Office. The
general counsel has emerged in the last decade as one of the most vibrant
subsets of the legal profession. The corporate counsel hear responsibility
for key aspects of the firm's strategic issues, including structuring its global

operations, managing improved relationships with an increasingly
diversified body of employees, managing expanded liability exposure,
creating new and varied interactions with public decision-makers, coping
internally with more complex make or by decisions.
This whole exercise drives home the thesis that knowing corporate law is
not enough to make one a good general corporate counsel nor to give him
a full sense of how the legal system shapes corporate activities. And even
if the corporate lawyer's aim is not the understand all of the law's effects
on corporate activities, he must, at the very least, also gain a working
knowledge of the management issues if only to be able to grasp not only
the basic legal "constitution' or makeup of the modem corporation.
"Business Star", "The Corporate Counsel," April 10, 1991, p. 4).
The challenge for lawyers (both of the bar and the bench) is to have more
than a passing knowledge of financial law affecting each aspect of their
work. Yet, many would admit to ignorance of vast tracts of the financial law
territory. What transpires next is a dilemma of professional security: Will
the lawyer admit ignorance and risk opprobrium?; or will he feign
understanding and risk exposure? (Business Star, "Corporate Finance law,"
Jan. 11, 1989, p. 4).
Respondent Christian Monsod was nominated by President Corazon C.
Aquino to the position of Chairman of the COMELEC in a letter received by
the Secretariat of the Commission on Appointments on April 25, 1991.
Petitioner opposed the nomination because allegedly Monsod does not
possess the required qualification of having been engaged in the practice of
law for at least ten years.
On June 5, 1991, the Commission on Appointments confirmed the
nomination of Monsod as Chairman of the COMELEC. On June 18, 1991, he
took his oath of office. On the same day, he assumed office as Chairman of
the COMELEC.
Challenging the validity of the confirmation by the Commission on
Appointments of Monsod's nomination, petitioner as a citizen and taxpayer,
filed the instant petition for certiorari and Prohibition praying that said
confirmation and the consequent appointment of Monsod as Chairman of
the Commission on Elections be declared null and void.
Practice Court Assignment No. 1|9
Atty. Christian Monsod is a member of the Philippine Bar, having passed
the bar examinations of 1960 with a grade of 86-55%. He has been a dues
paying member of the Integrated Bar of the Philippines since its inception
in 1972-73. He has also been paying his professional license fees as lawyer
for more than ten years. (p. 124, Rollo)
After graduating from the College of Law (U.P.) and having hurdled the
bar, Atty. Monsod worked in the law office of his father. During his stint in
the World Bank Group (1963-1970), Monsod worked as an operations
officer for about two years in Costa Rica and Panama, which involved
getting acquainted with the laws of member-countries negotiating loans
and coordinating legal, economic, and project work of the Bank. Upon
returning to the Philippines in 1970, he worked with the Meralco Group,
served as chief executive officer of an investment bank and subsequently
of a business conglomerate, and since 1986, has rendered services to
various companies as a legal and economic consultant or chief executive
officer. As former Secretary-General (1986) and National Chairman (1987)
of NAMFREL.Monsod's work involved being knowledgeable in election law.
He appeared for NAMFREL in its accreditation hearings before the Comelec.
In the field of advocacy, Monsod, in his personal capacity and as former
Co-Chairman of the Bishops Businessmen's Conference for Human
Development, has worked with the under privileged sectors, such as the
farmer and urban poor groups, in initiating, lobbying for and engaging in
affirmative action for the agrarian reform law and lately the urban land
reform bill. Monsod also made use of his legal knowledge as a member of
the Davide Commission, a quast judicial body, which conducted numerous
hearings (1990) and as a member of the Constitutional Commission (1986-
1987), and Chairman of its Committee on Accountability of Public Officers,
for which he was cited by the President of the Commission, Justice Cecilia
Muoz-Palma for "innumerable amendments to reconcile government
functions with individual freedoms and public accountability and the party-
list system for the House of Representative. (pp. 128-129 Rollo) (
Emphasis supplied)
Just a word about the work of a negotiating team of which Atty. Monsod
used to be a member.
In a loan agreement, for instance, a negotiating panel acts as a team, and
which is adequately constituted to meet the various contingencies that
arise during a negotiation. Besides top officials of the Borrower concerned,
there are the legal officer (such as the legal counsel), the finance manager,
 Practice Court Assignment No. 1|10

and an operations officer (such as an official involved in negotiating the devotion to that principle which in the ultimate analysis is sine qua non for
contracts) who comprise the members of the team. (Guillermo V. Soliven, foreign loan agreements-an adherence to the rule of law in domestic and
"Loan Negotiating Strategies for Developing Country Borrowers," Staff international affairs of whose kind U.S. Supreme Court Justice Oliver
Paper No. 2, Central Bank of the Philippines, Manila, 1982, p. 11). Wendell Holmes, Jr. once said: "They carry no banners, they beat no
(Emphasis supplied) drums; but where they are, men learn that bustle and bush are not the
equal of quiet genius and serene mastery." (See Ricardo J. Romulo, "The
After a fashion, the loan agreement is like a country's Constitution; it lays Role of Lawyers in Foreign Investments," Integrated Bar of the Philippine
down the law as far as the loan transaction is concerned. Thus, the meat of Journal, Vol. 15, Nos. 3 and 4, Third and Fourth Quarters, 1977, p. 265).
any Loan Agreement can be compartmentalized into five (5) fundamental
parts: (1) business terms; (2) borrower's representation; (3) conditions of Interpreted in the light of the various definitions of the term Practice of
closing; (4) covenants; and (5) events of default. (Ibid., p. 13). law". particularly the modern concept of law practice, and taking into
consideration the liberal construction intended by the framers of the
In the same vein, lawyers play an important role in any debt restructuring Constitution, Atty. Monsod's past work experiences as a lawyer-economist,
program. For aside from performing the tasks of legislative drafting and a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator
legal advising, they score national development policies as key factors in of contracts, and a lawyer-legislator of both the rich and the poor verily
maintaining their countries' sovereignty. (Condensed from the work paper, more than satisfy the constitutional requirement that he has been
entitled "Wanted: Development Lawyers for Developing Nations," engaged in the practice of law for at least ten years.
submitted by L. Michael Hager, regional legal adviser of the United States
Agency for International Development, during the Session on Law for the Besides in the leading case of Luego v. Civil Service Commission, 143
Development of Nations at the Abidjan World Conference in Ivory Coast, SCRA 327, the Court said:
sponsored by the World Peace Through Law Center on August 26-31,
1973). ( Emphasis supplied) Appointment is an essentially discretionary power and must be performed
by the officer in which it is vested according to his best lights, the only
Loan concessions and compromises, perhaps even more so than purely condition being that the appointee should possess the qualifications
renegotiation policies, demand expertise in the law of contracts, in required by law. If he does, then the appointment cannot be faulted on the
legislation and agreement drafting and in renegotiation. Necessarily, a ground that there are others better qualified who should have been
sovereign lawyer may work with an international business specialist or an preferred. This is a political question involving considerations of wisdom
economist in the formulation of a model loan agreement. Debt which only the appointing authority can decide. (emphasis supplied)
restructuring contract agreements contain such a mixture of technical
language that they should be carefully drafted and signed only with the No less emphatic was the Court in the case of (Central Bank v. Civil Service
advise of competent counsel in conjunction with the guidance of adequate Commission, 171 SCRA 744) where it stated:
technical support personnel. (See International Law Aspects of the
Philippine External Debts, an unpublished dissertation, U.S.T. Graduate It is well-settled that when the appointee is qualified, as in this case, and
School of Law, 1987, p. 321).( Emphasis supplied) all the other legal requirements are satisfied, the Commission has no
alternative but to attest to the appointment in accordance with the Civil
A critical aspect of sovereign debt restructuring/contract construction is the Service Law. The Commission has no authority to revoke an appointment
set of terms and conditions which determines the contractual remedies for on the ground that another person is more qualified for a particular
a failure to perform one or more elements of the contract. A good position. It also has no authority to direct the appointment of a substitute
agreement must not only define the responsibilities of both parties, but of its choice. To do so would be an encroachment on the discretion vested
must also state the recourse open to either party when the other fails to upon the appointing authority. An appointment is essentially within the
discharge an obligation. For a compleat debt restructuring represents a discretionary power of whomsoever it is vested, subject to the only

condition that the appointee should possess the qualifications required by
law. ( Emphasis supplied)
The appointing process in a regular appointment as in the case at bar,
consists of four (4) stages: (1) nomination; (2) confirmation by the
Commission on Appointments; (3) issuance of a commission (in the
Philippines, upon submission by the Commission on Appointments of its
certificate of confirmation, the President issues the permanent
appointment; and (4) acceptance e.g., oath-taking, posting of bond, etc. . .
. (Lacson v. Romero, No. L-3081, October 14, 1949; Gonzales, Law on
Public Officers, p. 200)
The power of the Commission on Appointments to give its consent to the
nomination of Monsod as Chairman of the Commission on Elections is
mandated by Section 1(2) Sub-Article C, Article IX of the Constitution
which provides:
The Chairman and the Commisioners shall be appointed by the President
with the consent of the Commission on Appointments for a term of seven
years without reappointment. Of those first appointed, three Members shall
hold office for seven years, two Members for five years, and the last
Members for three years, without reappointment. Appointment to any
vacancy shall be only for the unexpired term of the predecessor. In no case
shall any Member be appointed or designated in a temporary or acting
capacity.
Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his
definition of the practice of law is the traditional or stereotyped notion of
law practice, as distinguished from the modern concept of the practice of
law, which modern connotation is exactly what was intended by the
eminent framers of the 1987 Constitution. Moreover, Justice Padilla's
definition would require generally a habitual law practice, perhaps practised
two or three times a week and would outlaw say, law practice once or twice
a year for ten consecutive years. Clearly, this is far from the constitutional
intent.
Upon the other hand, the separate opinion of Justice Isagani Cruz states
that in my written opinion, I made use of a definition of law practice which
really means nothing because the definition says that law practice " . . . is
what people ordinarily mean by the practice of law." True I cited the
definition but only by way of sarcasm as evident from my statement that
Practice Court Assignment No. 1|11
the definition of law practice by "traditional areas of law practice is
essentially tautologous" or defining a phrase by means of the phrase itself
that is being defined.
Justice Cruz goes on to say in substance that since the law covers almost
all situations, most individuals, in making use of the law, or in advising
others on what the law means, are actually practicing law. In that sense,
perhaps, but we should not lose sight of the fact that Mr. Monsod is a
lawyer, a member of the Philippine Bar, who has been practising law for
over ten years. This is different from the acts of persons practising
law, without first becoming lawyers.
Justice Cruz also says that the Supreme Court can even disqualify an
elected President of the Philippines, say, on the ground that he lacks one or
more qualifications. This matter, I greatly doubt. For one thing, how can an
action or petition be brought against the President? And even assuming
that he is indeed disqualified, how can the action be entertained since he is
the incumbent President?
We now proceed:
The Commission on the basis of evidence submitted doling the public
hearings on Monsod's confirmation, implicitly determined that he possessed
the necessary qualifications as required by law. The judgment rendered by
the Commission in the exercise of such an acknowledged power is beyond
judicial interference except only upon a clear showing of a grave abuse of
discretion amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1
Constitution). Thus, only where such grave abuse of discretion is clearly
shown shall the Court interfere with the Commission's judgment. In the
instant case, there is no occasion for the exercise of the Court's corrective
power, since no abuse, much less a grave abuse of discretion, that would
amount to lack or excess of jurisdiction and would warrant the issuance of
the writs prayed, for has been clearly shown.
Additionally, consider the following:
(1) If the Commission on Appointments rejects a nominee by the
President, may the Supreme Court reverse the Commission, and thus in
effect confirm the appointment? Clearly, the answer is in the negative.
 Practice Court Assignment No. 1|12

(2) In the same vein, may the Court reject the nominee, whom the
Commission has confirmed? The answer is likewise clear.

(3) If the United States Senate (which is the confirming body in the U.S.
Congress) decides to confirm a Presidential nominee, it would be incredible
that the U.S. Supreme Court would still reverse the U.S. Senate.

Finally, one significant legal maxim is:

We must interpret not by the letter that killeth, but by the spirit that giveth
life.

Take this hypothetical case of Samson and Delilah. Once, the procurator of
Judea asked Delilah (who was Samson's beloved) for help in capturing
Samson. Delilah agreed on condition that

No blade shall touch his skin;

No blood shall flow from his veins.

When Samson (his long hair cut by Delilah) was captured, the procurator
placed an iron rod burning white-hot two or three inches away from in
front of Samson's eyes. This blinded the man. Upon hearing of what had
happened to her beloved, Delilah was beside herself with anger, and
fuming with righteous fury, accused the procurator of reneging on his
word. The procurator calmly replied: "Did any blade touch his skin? Did any
blood flow from his veins?" The procurator was clearly relying on the letter,
not the spirit of the agreement.

In view of the foregoing, this petition is hereby DISMISSED.

SO ORDERED.
 Practice Court Assignment No. 1|13

3. G.R. No. L-51813-14 November 29, 1983 nor reserve his right to institute it separately and, therefore, the civil action
is deemed impliedly instituted in said criminal cases. Thus, said
ROMULO CANTIMBUHAN, NELSON B. MALANA, and ROBERT V. complainant Romulo Cantimbuhan has personal interest in the success of
LUCILA, petitioners, the civil action and, in the prosecution of the same, he cannot be deprived
vs. of his right to be assisted by a friend who is not a lawyer.
HON. NICANOR J. CRUZ, JR., Presiding Judge of the Municipal Court
of Paraaque, Metro Manila, and FISCAL LEODEGARIO C. MELENCIO-HERRERA, J., dissenting:
QUILATAN, respondents.
1. REMEDIAL LAW; SECTION 34, RULE 138, RULES OF COURT; "A PARTY"
SYLLABUS WHO MAY CONDUCT HIS LITIGATION IN THE COURT OF THE JUSTICE OF
THE PEACE, CONSTRUED. Section 34, Rule 138 of the Rules of Court
specifically provides that it is "a party" who may conduct his litigation in
1. REMEDIAL LAW; LITIGATION BEFORE THE MUNICIPAL COURT; BY person, with the aid of an agent or friend appointed by him for that
WHOM CONDUCTED. Section 34, Rule 138 of the Rules of Court, clearly purpose in the Court of a Justice of the Peace. Romulo Cantimbuhan, as
provides that in the municipal court a party may conduct his litigation in the complaining witness in Criminal Cases Nos. 58549 and 58550 of the
person with the aid of an agent appointed by him for the purpose. Thus, in then Municipal Court of Paraaque, Metro Manila.is not a "party" within the
the case of Laput v. Bernabe, 55 Phil. 621, a law student was allowed to meaning of the said Rule. The parties in a criminal case are the accused
represent the accused in a case pending before the then Municipal Court, and the People. A complaining witness or an offended party only intervenes
the City Court of Manila, who was charged for damages to property in a criminal action in respect of the civil liability. The case of Laput end
through reckless imprudence. Salas v. Bernabe, 55 Phil. 621, is authority only In respect of the accused,
an a "party," in a criminal case.
2. ID.; ID.; APPEARANCE OF PRIVATE PROSECUTOR; PERMISSION OF
FISCAL NOT REQUIRED. The permission of the fiscal is not necessary for 2. ID.; SECTIONS 4 AND 15, RULE 110 OF THE RULES OF COURT;
one to enter his appearance as private prosecutor. In the first place, the CONTROLLING AND TAKE PRECEDENCE OVER SECTION 34, RULE 138.
law does not impose this condition. What the fiscal can do, if he wants to Sections 4 and 15, Rule 110 of the Rules of Court, being the more specific
handle the case personally is to disallow the private prosecutors provisions in respect of criminal cases, should take precedence over
participation, whether he be a lawyer or not, in the trial of the case. On the Section 34, Rule 138 and should be controlling (Bagatsing v. Hon. Ramirez,
other hand, if the fiscal desires the active participation of the private 74 SCRA 306 [1976]). Section 4 provides that all criminal actions shall be
prosecutor, he can just manifest to the court that the private prosecutor, prosecuted under the control of the Fiscal, while Section 15 specially
with its approval, will conduct the prosecution of the case: under his provides that the offended party may intervene, personally or by attorney,
supervision and control. Further, We may add that if a non-lawyer can in the prosecution of the offense.
appear as defense counsel or as friend of the accused in a case before the
municipal trial court, with more reason should he be allowed to appear as RELOVA, J.:
private prosecutor under the supervision and control of the trial fiscal.
Appeal from the Order, dated August 16, 1979, of respondent Judge
3. ID.; ID.; PROSECUTION FOR LESS SERIOUS PHYSICAL INJURIES; Nicanor J. Cruz, Jr., of the then Municipal Court of Paraaque, Metro
COMPLAINANT ENTITLED TO ASSISTANCE OF A NON-LAWYER FRIEND IN Manila, disallowing the appearances of petitioners Nelson B. Malana and
THE PROSECUTION OF THE CIVIL ACTION IF NOT EXPRESSLY WAIVED Robert V. Lucila as private prosecutors in Criminal Cases Nos. 58549 and
NOR RESERVATION TO INSTITUTE IT SEPARATELY IS MADE. In the two 58550, both for less serious physical injuries, filed against Pat. Danilo San
criminal cases, filed before the Municipal Court of Paraaque, petitioner Antonio and Pat. Rodolfo Diaz, respectively, as well as the Order, dated
Cantimbuhan, as the offended party, did expressly waive the civil action September 4, 1979, denying the motion for reconsideration holding, among
 Practice Court Assignment No. 1|14

others, that "the fiscal's claim that appearances of friends of party-litigants SEC. 34. By whom litigation conducted. In the court of a justice of the
should be allowed only in places where there is a scarcity of legal peace a party may conduct his litigation in person, with the aid of an agent
practitioner, to be well founded. For, if we are to allow non-members of the or friend appointed by him for that purpose, or with the aid of an attorney.
bar to appear in court and prosecute cases or defend litigants in the guise In any other court, a party may conduct his litigation personally or by aid
of being friends of the litigants, then the requirement of membership in the of an attorney, and his appearance must be either personal or by a duly
Integrated Bar of the Philippines and the additional requirement of paying authorized member of the bar.
professional taxes for a lawyer to appear in court, would be put to naught.
" (p. 25, Rollo) Thus, a non-member of the Philippine Bar a party to an action is
authorized to appear in court and conduct his own case; and, in the inferior
Records show that on April 6, 1979, petitioner Romulo Cantimbuhan filed courts, the litigant may be aided by a friend or agent or by an attorney.
separate criminal complaints against Patrolmen Danilo San Antonio and However, in the Courts of First Instance, now Regional Trial Courts, he can
Rodolfo Diaz for less serious physical injuries, respectively, and were be aided only by an attorney.
docketed as Criminal Cases Nos. 58549 and 58550 in the then Municipal
Court of Paraaque, Metro Manila. On the other hand, it is the submission of the respondents that pursuant to
Sections 4 and 15, Rule 110 of the Rules of Court, it is the fiscal who is
Petitioners Nelson B. Malana and Robert V. Lucila, in 1979, were senior law empowered to determine who shall be the private prosecutor as was done
students of the U.P.assistance to the needy clients in the Office of the Legal by respondent fiscal when he objected to the appearances of petitioners
Aid. Thus, in August 1979, petitioners Malana and Lucila filed their Malana and Lucila. Sections 4 and 15, Rule 110 of the Rules of Court
separate appearances, as friends of complainant-petitioner Cantimbuhan. provide: t.hqw
Herein respondent Fiscal Leodegario C. Quilatan opposed the appearances
of said petitioners, and respondent judge, in an Order dated August 16, SEC. 4. Who must prosecute criminal actions. All criminal actions either
1979, sustained the respondent fiscal and disallowed the appearances of commenced by complaint or by information shall be prosecuted under the
petitioners Malana and Lucila, as private prosecutors in said criminal cases. direction and control of the fiscal.
Likewise, on September 4, 1979, respondent Judge issued an order
denying petitioners' motion for reconsideration. xxxxxxxxx

Hence, this petition for certiorari, mandamus and prohibition with prayers,
among others, that the Orders of respondent judge, dated August 16, 1979
and September 4, 1979, be set aside as they are in plain violation of
Section 34, Rule 138 of the Rules of Court and/or were issued with grave
abuse of discretion amounting to lack of jurisdiction. Upon motion, the
Court, on November 8, 1979, issued a temporary restraining order
"enjoining respondent judge and all persons acting for and in his behalf
from conducting any proceedings in Criminal Cases Nos. 58549 (People of
the Philippines vs. Danilo San Antonio) and 58559 (People of the
Philippines vs. Rodolfo Diaz) of the Municipal Court of Paraaque, Metro
Manila on November 15, 1979 as scheduled or on any such dates as may
be fixed by said respondent judge.
Basis of this petition is Section 34, Rule 138 of the Rules of Court which
states: t.hqw
SEC. 15. Intervention of the offended party in criminal action. Unless the
offended party has waived the civil action or expressly reserved the right to
institute it separately from the criminal action, and subject to the
provisions of section 4 hereof, he may intervene, personally or by attorney,
in the prosecution of the offense.
And, they contend that the exercise by the offended party to intervene is
subject to the direction and control of the fiscal and that his appearance,
no less than his active conduct of the case later on, requires the prior
approval of the fiscal.
We find merit in the petition. Section 34, Rule 138 of the Rules of Court,
clearly provides that in the municipal court a party may conduct his
litigation in person with the aid of an agent appointed by him for the
 Practice Court Assignment No. 1|15

purpose. Thus, in the case of Laput vs. Bernabe, 55 Phil. 621, a law
student was allowed to represent the accused in a case pending before the
then Municipal Court, the City Court of Manila, who was charged for
damages to property through reckless imprudence. "It is accordingly our
view that error was committed in the municipal court in not allowing
Crispiniano V. Laput to act as an agent or friend of Catalino Salas to aid the
latter in conducting his defense." The permission of the fiscal is not
necessary for one to enter his appearance as private prosecutor. In the
first place, the law does not impose this condition. What the fiscal can do,
if he wants to handle the case personally is to disallow the private
prosecutor's participation, whether he be a lawyer or not, in the trial of the
case. On the other hand, if the fiscal desires the active participation of the
private prosecutor, he can just manifest to the court that the private
prosecutor, with its approval, will conduct the prosecution of the case
under his supervision and control. Further, We may add that if a non-
lawyer can appear as defense counsel or as friend of the accused in a case
before the municipal trial court, with more reason should he be allowed to
appear as private prosecutor under the supervision and control of the trial
fiscal.

In the two criminal cases filed before the Municipal Court of Paraaque,
petitioner Cantimbuhan, as the offended party, did not expressly waive the
civil action nor reserve his right to institute it separately and, therefore, the
civil action is deemed impliedly instituted in said criminal cases. Thus, said
complainant Romulo Cantimbuhan has personal interest in the success of
the civil action and, in the prosecution of the same, he cannot be deprived
of his right to be assisted by a friend who is not a lawyer.

WHEREFORE, the Orders issued by respondent judge dated August 16,

1979 and September 4, 1979 which disallowed the appearances of
petitioners Nelson B. Malana and Robert V. Lucila as friends of party-
litigant petitioner Romulo Cantimbuhan. are hereby SET ASIDE and
respondent judge is hereby ordered to ALLOW the appearance and
intervention of petitioners Malana and Lucila as friends of Romulo
Cantimbuhan. Accordingly, the temporary restraining order issued on
November 8, 1979 is LIFTED.

SO ORDERED.

4. G.R. No. L-77691 August 8,1988
PATERNO R. CANLAS, petitioner,
vs.
HON. COURT OF APPEALS, and FRANCISCO HERRERA, respondents.
SYLLABUS
1. REMEDIAL LAW; JUDGMENT; ANNULMENT; BASED ON EXTRINSIC
FRAUD; CASE AT BAR. Annulment of judgment, we have had occasion to
rule, rests on a single ground: extrinsic fraud. What "extrinsic fraud"
means is explained in Macabingkil v. Peoples Homesite and Housing
Corporation: It is only extrinsic or collateral fraud, as distinguished from
intrinsic fraud, however, that can serve as a basis for the annulment of
judgment. Fraud has been regarded as extrinsic or collateral, within the
meaning of the rule, "where it is one the effect of which prevents a party
from having a trial, or real contest, or from presenting all of his case to the
court, or where it operates upon matters pertaining, not to the judgment
itself, but of the manner in which it was procured so that there is not a fair
submission of the controversy." In other words, extrinsic fraud refers to
any fraudulent act of the prevailing party in the litigation which is
committed outside of the trial of the case, whereby the defeated party has
been prevented from exhibiting fully his side of the case, by fraud or
deception practiced on him by his opponent. A perusal of the petition of
therein private respondent Herrera pending before the respondent Court
reveals no cause of action for annulment of judgment. In the first place,
and as herein petitioner Canlas correctly points out, the judgment itself is
not assailed, but rather, the orders merely implementing it. Secondly,
there is no showing that extrinsic fraud, as Makabingkil defines it, indeed
vitiated the proceedings presided over by Judge Castro. On the contrary,
Herreras petition in the respondent court will show that he was privy to
the incidents he complains of, and in fact, had entered timely oppositions
and motions to defeat Atty. Canlas claims under the compromise
agreement.
2. ID.; ID.; EXECUTION; NOT APPEALABLE; EXCEPTION.
Certiorari presupposes the absence of an appeal and while there is no
appeal from execution of judgment, appeal lies in case of irregular
implementation of the writ. In the case at bar, there is no irregular
execution to speak of. As a rule, "irregular execution" means the failure of
the writ to conform to the decree of the decision executed. In the instant
Practice Court Assignment No. 1|16
case, respondent Herreras charges, to wit, that Judge Castro had erred in
denying his motions for temporary restraining order and to recall writ of
possession, or that His Honor had acted hastily (." . . that respondent
court/judge took only one [1] day to resolve petitioners motion for
issuance of [a] [restraining] order . . .") in denying his twofold motions, do
not make out a case for irregular execution. The orders impugned are
conformable to the letter of the judgment approving the parties
compromise agreement.
3. ID.; CONSTRUCTION; OBJECT OF PROCEDURAL RULES. Procedural
rules, after all, have for their object assistance unto parties "in obtaining
just, speedy, and inexpensive determination of every action and
proceeding." If procedure were to be an impediment to such an objective,
"it deserts its proper office as an aid to justice and becomes its great
hindrance and chief enemy." It was almost eight decades ago that the
Court held: . . . A litigation is not a game of technicalities in which one,
more deeply schooled and skilled in the subtle art of movement and
position, entraps and destroys the other. It is, rather, a contest in which
each contending party fully and fairly lays before the court the facts in
issue and then, brushing aside as wholly trivial and indecisive all
imperfections of form and technicalities of procedure, asks that justice be
done upon the merits. Lawsuits, unlike duels, are not to be won by the a
rapiers thrust . . . It is a ruling that almost eight decades after it was
rendered, holds true as ever.
4. LEGAL ETHICS; PRACTICE OF LAW; NOT A COMMERCIAL ENTERPRISE.
The Court finds the occasion fit to stress that lawyering is not a
moneymaking venture and lawyers are not merchants, a fundamental
standard that has, as a matter of judicial notice, eluded not a few law
advocates. The petitioners efforts partaking of a "shakedown" of his own
client are not becoming of a lawyer and certainly, do not speak well of his
fealty to his oath to "delay no man for money." It is true that lawyers are
entitled to make a living, in spite of the fact that the practice of law is not a
commercial enterprise; but that does not furnish an excuse for plain lust
for material wealth, more so at the expense of another. Law advocacy, we
reiterate, is not capital that yields profits. The returns it births are simple
rewards for a job done or service rendered. It is a calling that, unlike
mercantile pursuits which enjoy a greater deal of freedom from
government interference, is impressed with a public interest, for which it is
subject to State regulation.

5. REMEDIAL LAW; ATTORNEYS FEES; SECTION 24, RULE 138, RULES OF
COURT; DETERMINATION THEREOF; CASE AT BAR. Anent attorneys
fees, section 24, of Rule 138, of the Rules, provides in part as follows: SEC.
24. Compensation of attorneys, agreement as to fees. An attorney shall
be entitled to have and recover from his client no more than a reasonable
compensation for his services, with a view to the importance of the subject
matter of the controversy, the extent of the services rendered, and the
professional standing of the attorney. . . A written contract for services
shall control the amount to be paid therefor unless found by the court to be
unconscionable or unreasonable. So also it is decreed by Article 2208 of
the Civil Code, reproduced in part, as follows: Art. 2208 . . . In all cases,
the attorneys fees and expenses of litigation must be reasonable. We do
not find the petitioners claim of attorneys fees in the sum of P100,000.00
reasonable. We do not believe that it satisfies the standards set forth by
the Rules. The extent of the services he had rendered in Civil Case No.
30679, and as far as the records will yield, is not impressive to justify
payment of such a gargantuan amount. The case itself moreover did not
involve complex questions of fact or law that would have required
substantial effort as to research or leg work for the petitioner to warrant
his demands. The fact that the properties subject thereof commanded quite
handsome prices in the market should not be a measure of the importance
or non-importance of the case. We are not likewise persuaded that the
petitioners stature warrants the sum claimed.
6. REMEDIAL LAW; REDEMPTION OF REAL PROPERTY SOLD; SECTION 29,
RULE 39, RULES OF COURT; DOES NOT APPLY TO AN ATTORNEYS LIEN;
CASE AT BAR. It is futile to invoke the rule granting attorneys a lien
upon the things won in litigation similar to that vested upon redemptioners.
To begin with, the rule refers to realty sold as a result of execution in
satisfaction of judgment. In this case, however, redemption was decreed
by agreement (on compromise) between the mortgagor and mortgagee. It
did not give the petitioner any right to the properties themselves, much
less the right of redemption, although provisions for his compensation were
purportedly provided. It did not make him a redemptioner for the plain
reason that he was not named one in the amicable settlement. To this
extent, we reverse Judge Pedro Santiagos ruling in Civil Case No. 40066,
recognizing Atty. Canlas "legal right, independent of the questioned deed
of sale and transfer which was executed subsequently on May 3, 1983, to
redeem the subject realty from the L & R Corporation pursuant to Sec. 29
(b), Rule 39 of the Rules of Court." Whatever right he had, it was,
arguably, with respect alone to his remuneration. It did not extend to the
Practice Court Assignment No. 1|17
lands. Secondly, and assuming that such a right exists, it must be in
proportion to the "just fees and disbursements" due him. It is still subject
to the tempering hand of this Court.
7. CIVIL LAW; SALES; ART. 1491, CIVIL CODE; PROHIBITION ON
ACQUISITION BY ATTORNEYS OF THINGS IN LITIGATION; NOT
APPLICABLE IN THE CASE AT BAR. This brings us to the final question:
Whether or not the conveyance in favor of the petitioner is subject to the
ban on acquisition by attorneys of things in litigation. The pertinent
provisions of the Civil Code state as follows: Art. 1491. The following
persons cannot acquire by purchase, even at a public or judicial action,
either in person or through the mediation of another: (5) Justice, judges,
prosecuting attorneys, clerks of superior and inferior courts, and other
officers and employees connected with the administration of justice, the
property and rights in litigation or levied upon an execution before the
court within whose jurisdiction or territory they exercise their respective
functions; this prohibition includes the act of acquiring by assignment and
shall apply to lawyers, with respect to the property and rights which may
be the object of any litigation in which they may take part by virtue of their
profession. In the instant case, the Court observes that the "Deed of Sale
and Transfer of Rights of Equity of Redemption and/or to Redeem" was
executed following the finality of the decision approving the compromise
agreement. It is actually a new contract not one in pursuance of what
had been agreed upon on compromise in which, as we said, the
petitioner purportedly assumed redemption rights over the disputed
properties (but in reality, acquired absolute ownership thereof). By virtue
of such a subsequent agreement, the lands had ceased to be properties
which are "the object of any litigation." The transfer, therefore, is not
subject to the injunction of Article 1491 of the Civil Code.
8. REMEDIAL LAW; WRIT OF POSSESSION; GENERALLY, CANNOT BE
PROPERLY AVAILED OF TO EJECT ANOTHER IN POSSESSION; EXCEPTION.
Parenthetically, the Court states that a writ of possession is improper to
eject another from possession unless sought in connection with: (1) a land
registration proceeding; (2) an extrajudicial foreclosure of mortgage of real
property; (3) in a judicial foreclosure of property provided that the
mortgagor has possession and no third party has intervened; and (4) in
execution sales. It is noteworthy that in this case, the petitioner moved for
the issuance of the writ pursuant to the deed of sale between him and the
private respondent and not the judgment on compromise. (He was, as we
said, issued a writ of execution on the compromise agreement but as we

likewise observed, he did not have the same enforced. The sale agreement
between the parties, it should be noted, superseded the compromise.) The
writ does not lie in such a case. His remedy is specific performance.
9. CIVIL LAW; VOIDABLE CONTRACTS; GROUNDS FOR ANNULMENT
THEREOF; INVALIDATION OF THE CONTRACT IN THE CASE AT BAR. But
like all voidable contracts, it is open to annulment on the ground of
mistake, fraud, or undue influence, which is in turn subject to the right of
innocent purchasers for value. For this reason, we invalidate the transfer in
question specifically for undue influence as earlier detailed. While the
respondent Herrera has not specifically prayed for invalidation, this is the
clear tenor of his petition for annulment in the Appellate Court. It
appearing, however, that the properties have been conveyed to third
persons whom we presume to be innocent purchasers for value, the
petitioner, Atty. PaternoCanlas, must be held liable, by way of actual
damages, for such a loss of properties.
10. REMEDIAL LAW; CONSTRUCTION; RIGIDITY OF PROCEDURAL RULES
WILL NOT BE APPLIED IF IT WOULD DEFEAT THE ADMINISTRATION OF
JUSTICE. Let the Court further say that while its business is to settle
actual controversies and as a matter of general policy, to leave alone moot
ones, its mission is, first and foremost, to dispense justice. At the outset,
we have made clear that from a technical vantage point, certiorari,
arguably, lies, but as we have likewise stated, the resolution of the case
rests not only on the mandate of technical rules, but if the decision is to
have any real meaning, on the merits too. This is not the first time we
would have done so; in many cases we have eschewed the rigidity of the
Rules of Court if it would establish a barrier upon the administration of
justice. It is especially so in the case at bar, in which no end to suit and
counter-suit appears imminent, and for which it is high time that we have
the final say. We likewise cannot, as the overseer of good conduct in both
the bench and the bar, let go unpunished what convinces us as serious
indiscretions on the part of a lawyer.
SARMIENTO, J.:
The case dramatizes the unpleasant spectacle of a lawyer tangling with his
own client, more often than not, in the matter of fees. The lawyer, the
petitioner himself, would have his petition decided on pure questions of
procedure, yet, the Court cannot let pass unnoticed the murkier face of the
controversy, wherein the law is corrupted to promote a lawyer's
Practice Court Assignment No. 1|18
selfseekingends, and the law profession, debased into a simple business
dealing. Accordingly, we resolve it on the basis not only of the questions
raised by the petitioner pertaining to procedure, but considering its serious
ethical implications, on its merits as well.
We turn to the facts.
The private respondent was the registered owner of eight (six, according to
the petitioner) parcels of land located in Quezon City. 1 Between 1977 and
1978, 2 he obtained various loans from the L & R Corporation, a financing
institution, in various sums totalling P420,000.00 As security therefor, he
executed deeds of mortgage in favor of the corporation over the parcels
aforesaid. On August 28,1979, and upon the maturing of said loans, the
firm caused an extrajudicial foreclosure of mortgage following his failure to
pay, as a consequence of which, the said eight (six, according to the
petitioner) parcels of land were disposed of at public auction, and in which
L & R Corporation was itself the highest bidder.
Pending redemption, the private respondent filed a complaint for injunction
against L & R Corporation, to enjoin consolidation of title in its name, in
which he succeeded in obtaining preliminary injunctive relief. He was
represented by the petitioner. Two years later, and with no imminent end
to the litigation in sight, the parties entered into a compromise agreement
whereby L & R Corporation accorded the private respondent another year
to redeem the foreclosed properties subject to payment of P600,000.00,
with interest thereon at one per cent per month. They likewise stipulated
that the petitioner shall be entitled to attorney's fees of P100,000.00. On
November 19, 1982, the court 3 approved the compromise.
The private respondent, however, remained in dire financial straits a fact
the petitioner himself concede 4 for which reason he failed to acquire the
finding to repay the loans in question, let alone the sum of P100,000.00 in
attorney's fees demanded by the petitioner. That notwithstanding, the
petitioner moved for execution insofar as his fees were concemed. The
court granted execution, although it does not appear that the sum was
actually collected. 5
Sometime thereafter, the petitioner and the private respondent met to
discuss relief for the latter with respect to his liability to L & R Corporation
on the one hand, and his obligation to the petitioner on the other. The
petitioner contends that the private respondent "earnestly implored" 6 him

to redeem the said properties; the private respondent maintains that it was
the petitioner himself who 'offered to advance the money," 7 provided that
he, the private respondent, executed a "transfer of mortgage" 8 over the
properties in his favor. Who implored whom is a bone of contention, but as
we shall see shortly, we are inclined to agree with the private respondent's
version, considering primarily the petitioner's moral ascendancy over his
client and the private respondent's increasing desperation.
The records further show that the parties, pursuant to their agreement,
executed a "Deed of Sale and Transfer of Rights of Redemption and/or to
Redeem," a document that enabled the petitioner, first, to redeem the
parcels in question, and secondly, to register the same in his name. The
private respondent alleges that he subsequently filed loan applications with
the Family Savings Bank to finance a wet market project upon the subject
premises to find, according to him, and to his dismay, the properties
already registered in the name of the petitioner. He likewise contends that
the "Deed of Sale and Transfer of Rights of Redemption and/or to Redeem"
on file with the Register of Deeds (for Quezon City) had been falsified as
follows:
WHEREFORE, for and in full settlement of the attorney's fees of
TRANSFEREE in the amount of ONE HUNDRED THOUSAND PESOS
(Pl00,000.00) I, FRANCISCO HERRERA, hereby transfer, assign and convey
unto TRANSFEREE, Atty. Paterno R. Canlas, any and all my rights of the
real properties and/or to redeem from the Mortgagee, L & R Corporation
my mortgaged properties foreclosed and sold at public auction by the
Sheriff of Quezon City and subject matter of the above Compromise
Agreement in Civil Case No. Q30679 ... 9
whereas it originally reads:
WHEREFORE, for and in full settlement of the attorney's fees of
TRANSFEREE in the amount of ONE HUNDRED THOUSAND PESOS
(P100,000.00), I, FRANCISCO HERRERA, hereby transfer, assign and
convey unto TRANSFEREE, Atty. Paterno R. Canlas, any and all my rights of
equity of redemption and/or to redeem from the Mortgagee, L & R
Corporation my mortgaged properties foreclosed and sold at public auction
by the Sheriff of Quezon City and subject matter of the above Compromise
Agreement in Civil Case No. Q30679. . .10
Practice Court Assignment No. 1|19
As a consequence, the private respondent caused the annotation of an
adverse claim upon the respective certificates of title embracing the
properties. Upon learning of the same, the petitioner moved for the
cancellation of the adverse claim and for the issuance of a writ of
possession. The court granted both motions. The private respondent
countered with a motion for a temporary restraining order and later, a
motion to recall the writ of possession. He likewise alleges that he
commenced disbarment proceedings before this Court against the
petitioner 11 as well as various criminal complaints for estafa, falsification,
and "betrayal of trust" 12 with the Department of Justice. On December 1,
1983, finally, he instituted an action for reconveyance and reformation of
document, 13praying that the certificates of title issued in the name of the
petitioner be cancelled and that "the Deed of Sale and Transfer of Rights of
Equity of Redemption and/or to Redeem dated May 3, 1983 ... be reformed
to reflect the true agreement of Francisco Herrera and Paterno R. Canlas,
of a mortgage." 14 He vehemently maintains that the petitioner's
"agreement with [him] was that the latter would lend the money to the
former for a year, so that [petitioner] would have time to look for a loan
for the wet market which [the petitioner] intended to put up on said
property." 15 Predictably, the petitioner moved for dismissal.
The trial court, however, denied the private respondent's petition. It held
that the alteration complained of did not change the meaning of the
contract since it was "well within [the petitioner's] rights" 16 "to protect and
insure his interest of P654,000.00 which is the redemption price he has
paid;" 17 secondly, that the petitioner himself had acquired an interest in
the properties subject of reconveyance based on the
compromise agreement approved by Judge Castro in the injunction case,
pursuant to Section 29(b), of Rule 39, of the Rules of Court, that had,
consequently, made him a judgment creditor in his own right; thirdly, that
the private respondent had lost all rights over the same arising from his
failure to redeem them from L & R Corporation within the extended period;
and finally, that the petitioner cannot be said to have violated the ban
against sales of properties in custodialegis to lawyers by their
clients pendente lite, since the sale in question took place after judgment
in the injunction case abovesaid had attained finality. The complaint was
consequently dismissed, a dismissal that eventually attained a character of
finality.
Undaunted, the private respondent, on December 6, 1985, filed a suit for
"Annulment Of Judgment 18 in the respondent Court of Appeals, 19 praying
 Practice Court Assignment No. 1|20

that the orders of Judge Castro: (1). granting execution over the portion of THAT THE ARGUMENT RAISED THEREIN ARE BUT REHASH OF THE
the compromise agreement obliging the private respondent to pay the ARGUMENTS IN HIS COMMENT TO THE PETITION. 21
petitioner P100,000.00 as attorney's fees; (2) denying the private
respondent's prayer for a restraining order directed against the execution:The petitioner argues that the petition pending with the respondent court
and (3) denying the motion to recall writ of possession, all be set aside. "is actually a petition for certiorari," 22disguised as a pleading for
annulment of judgment and that in such a case, it faces alleged legal
The petitioner filed a comment on the petition, but followed it up with a impediments (1) It had been filed out of time, allegedly two years from the
motion to dismiss. On December 8, 1986, the respondent Court of Appeals issuance of the assailed orders, and (2) It was not preceded by a motion
promulgated the first of its challenged resolutions, denying the motion to for reconsideration. He adds that assuming annulment of judgment were
dismiss. On March 3, 1987, the Appellate Court denied reconsideration. 20 proper, no judgment allegedly exists for annulment, the aforesaid two
orders being in the nature of interlocutory issuances.
Hence the instant petition.
On purely technical grounds, the petitioner's arguments are impressive.
As we stated, the petitioner assails these twin resolutions on grounds of Annulment of judgment, we have had occasion to rule, rests on a single
improper procedure. Specifically, he assigns the following errors: ground: extrinsic fraud. What "extrinsic fraud" means is explained
in Macabingkil v. People's Homesite and Housing Corporation : 23
I.
xxxxxxxxx
THE RESPONDENT COURT GRAVELY ABUSE [sic] ITS DISCRETION IN NOT
DISMISSING AC G.R. NO. 07860 ON THE GROUND THAT IT IS IN REALITY It is only extrinsic or collateral fraud, as distinguished from intrinsic fraud,
A PETITION FOR CERTIORARI FILED OUT OF TIME AND SHOULD NOT BE however, that can serve as a basis for the annulment of judgment. Fraud
GIVEN DUE COURSE. has been regarded as extrinsic or collateral, within the meaning of the rule,
"where it is one the effect of which prevents a party from having a trial, or
II. real contest, or from presenting all of his case to the court, or where it
operates upon matters pertaining, not to the judgment itself, but of the
THE RESPONDENT COURT GRAVELY ABUSE [sic] ITS DISCRETION IN NOT manner in which it was procured so that there is not a fair submission of
DISMISSING AC G.R. NO. 07860 ON THE GROUND OF RES JUDICATA the controversy." In other words, extrinsic fraud refers to any fraudulent
act of the prevailing party in the litigation which is committed outside of
the trial of the case, whereby the defeated party has been prevented from
III.
exhibiting fully his side of the case, by fraud or deception practiced on him
by his opponent. 24
THE RESPONDENT COURT GRAVELY ABUSE [sic] ITS DISCRETION IN NOT
CONSIDERING AC G. R. 07860 AS MOOT AND ACADEMIC SINCE
A perusal of the petition of therein private respondent Herrera pending
PETITIONER HAD DISPOSED OF THE SUBJECT PROPERTIES LONG BEFORE
before the respondent Court reveals no cause of action for annulment of
THE FILING OF THIS SUIT.
judgment. In the first place, and as herein petitioner Canlas correctly
points out, the judgment itself is not assailed, but rather, the orders
IV
merely implementing it. Secondly, there is no showing that extrinsic fraud,
as Makabingkil defines it, indeed vitiated the proceedings presided over by
THE RESPONDENT COURT GRAVELY ABUSED ITS DISCRETION IN NOT Judge Castro. On the contrary, Herrera's petition in the respondent court
DENYING PETITIONER'S MOTION TO DISMISS SOLELY ON THE GROUND will show that he was privy to the incidents he complains of, and in fact,
 Practice Court Assignment No. 1|21

had entered timely oppositions and motions to defeat Atty. Canlas' claims Art. 2038. A compromise in which there is mistake, fraud, violence
under the compromise agreement. intimidation, undue influence, or falsity of documents, is subject to the
provisions of article 1330 of this Code ...
What he objects to is his suspected collusion between Atty. Canlas and His
Honor to expedite the former's collection of his fees. He alleges that his in relation to Article 1330 thereof:
counsel had deliberately, and with malevolent designs, postponed
execution to force him (Herrera) to agree to sell the properties in Art. 1330. A contract where consent is given through mistake, violence,
controversy to him (Atty. Canlas) subject to redemption. ("...[I]t was intimidation, undue influence, or fraud is voidable.
understandable that respondent Atty. Paterno R. Canlas did not implement
the writ of execution, instead he contacted petitioner in order that in relation to its provisions on avoidance of'contracts. 30 The court notes
petitioner would sign the questioned documents. This was the clincher of that he had, for this purpose, gone to the Regional Trial Court, a vain effort
the plan of respondent Atty, Paterno R. Canlas to divest petitioner of his as we stated, and in which the decision had become final.
properties. For this purpose, it is obvious that respondent Atty. Paterno R.
Canlas had to conspire with the respondent court judge to achieve his We, however, sustain Atty. Canlas' position-on matters of procedure for
plan." 25) Aside from being plain speculation, it is no argument to justify the enlightenment solely of the bench and the bar. It does not mean that
annulment. Clearly, it does not amount to extrinsic fraud as the term is we find merit in his petition. As we have intimated, we cannot overlook the
defined in law. unseemlier side of the proceeding, in which a member of the bar would
exploit his mastery of procedural law to score a "technical knockout" over
Neither is it proper for the extraordinary remedy of his own client, of all people. Procedural rules, after all, have for their object
certiorari. Certiorari presupposes the absence of an appeal 26 and while assistance unto parties "in obtaining just, speedy, and inexpensive
there is no appeal from execution of judgment, appeal lies in case of determination of every action and proceeding." 31If procedure were to be
irregular implementation of the writ. 27 In the case at bar, there is no an impediment to such an objective, "it deserts its proper office as an aid
irregular execution to speak of As a rule, "irregular execution" means the to justice and becomes its great hindrance and chief enemy." 32 It was
failure of the writ to conform to the decree of the decision executed. 28 In almost eight decades ago that the Court held:
the instant case, respondent Herrera's charges, to wit, that Judge Castro
had erred in denying his motions for temporary restraining order and to ... A litigation is not a game of technicalities in which one, more deeply
recall writ of possession, or that His Honor had acted hastily (". . . that schooled and skilled in the subtle art of movement and position, entraps
respondent court/judge took only one [1) day to resolve petitioner's motion and destroys the other. It is, rather, a contest in which each contending
for issuance of [a] [restraining] order. . ." 29) in denying his twofold party fully and fairly lays before the court the facts in issue and then,
motions, do not make out a case for irregular execution. The orders brushing aside as wholly trivial and indecisive all imperfections of form and
impugned are conformable to the letter of the judgment approving the technicalities of procedure, asks that justice be done upon the merits.
parties'compromise agreement. Lawsuits, unlike duels, are not to be won by the a rapier's thrust ... 33

The lengths the private respondent, Francisco Herrera, would go to in a
last-ditch bid to hold on to his lands and constraints of economic privation
have not been lost on us. It is obvious that he is uneasy about the
judgment on compromise itself, as well as the subsequent contract
between him and his lawyer. In such a case, Article 2038 of the Civil Code
applies:
It is a ruling that almost eight decades after it was rendered, holds true as
ever.
By Atty. Canlas' own account, "due to lack of paying capacity of respondent
Herrera, no financing entity was willing to extend him any loan with which
to pay the redemption price of his mortgaged properties and petitioner's
P100,000.00 attorney's fees awarded in the Compromise Judgment," 34 a
 Practice Court Assignment No. 1|22

development that should have tempered his demand for his fees. For
obvious reasons, he placed his interests over and above those of his client,
in opposition to his oath to "conduct himself as a lawyer ... with all good
fidelity ... to [his] clients." 35 The Court finds the occasion fit to stress that
lawyering is not a moneymaking venture and lawyers are not merchants, a
fundamental standard that has, as a matter of judicial notice, eluded not a
few law advocates. The petitioner's efforts partaking of a shakedown" of his
own client are not becoming of a lawyer and certainly, do not speak well of
his fealty to his oath to "delay no man for money." 36
not involve complex questions of fact or law that would have required
substantial effort as to research or leg work for the petitioner to warrant
his demands. The fact that the properties subject thereof commanded quite
handsome prices in the market should not be a measure of the importance
or non-importance of the case. We are not likewise persuaded that the
petitioner's stature warrants the sum claimed.
All things considered, we reduce the petitioner's fees, on a quantum
meruit basis, to P20,000.00.

It is true that lawyers are entitled to make a living, in spite of the fact that It is futile to invoke the rule granting attorneys a lien upon the things won
the practice of law is not a commercial enterprise; but that does not in litigation similar to that vested upon redemptioners. 38 To begin with, the
furnish an excuse for plain lust for material wealth, more so at the expense rule refers to realty sold as a result of execution in satisfaction of
of another. Law advocacy, we reiterate, is not capital that yields profits. judgment. In this case, however, redemption was decreed by agreement
The returns it births are simple rewards for a job done or service rendered. (on compromise) between the mortgagor and mortgagee. It did not give
It is a calling that, unlike mercantile pursuits which enjoy a greater deal of the petitioner any right to the properties themselves, much less the right of
freedom from government interference, is impressed with a public interest, redemption, although provisions for his compensation were purportedly
for which it is subject to State regulation. 37 Anent attomey's fees, section provided. It did not make him a redemptioner for the plain reason that he
24, of Rule 138, of the Rules, provides in part as follows: was not named one in the amicable settlement. To this extent, we reverse
Judge Pedro Santiago's ruling in Civil Case No. 40066, recognizing Atty.
SEC. 24.Compensation of attorneys, agreement as to fees. An attorney Canlas' "legal right, independent of the questioned deed of sale and
shall be entitled to have and recover from his client no more than a transfer which was executed subsequently on May 3, 1983, to redeem the
reasonable compensation for his services, with a view to the importance of subject realty from the L & R Corporation pursuant to Sec. 29 (b), Rule 39
the subject matter of the controversy, the extent of the services rendered, of the Rules of Court." 39 Whatever right he had, it was, arguably with
and the professional standing of the attorney... A written contract for respect alone to his renumeration. It did not extend to the lands.
services shall control the amount to be paid therefor unless found by the
court to be unconscionable or unreasonable. Secondly, and assuming that such a right exists, it must be in proportion to
the "just fees and disbursements" 40 due him. It is still subject to the
So also it is decreed by Article 2208 of the Civil Code, reproduced in part, tempering hand of this Court.
as follows:
The Court notes a hidden agenda in the petitioner's haste to execute the
Art. 2208 ... compromise agreement and subsequently, to force the transfer of the
properties to himself. As we have observed, in spite of the issuance of the
In all cases, the attorney's fees and expenses of litigation must be writ of execution, it does not appear that the petitioner took pains to
reasonable. implement it. We find this perplexing given his passionate and persistent
pleas that he was entitled to the proceeds. There can indeed be no
We do not find the petitioner's claim of attorney's fees in the sum of plausible explanation other than to enable him to keep an "ace" against the
P100,000.00 reasonable. We do not believe that it satisfies the standards private respondent that led finally, to the conveyance of the properties in
set forth by the Rules. The extent of the services he had rendered in Civil his favor. To be sure, he would have us beheve that by redeeming the
Case No. 30679, and as far as the records will yield, is not impressive to same from the mortgagee and by in fact parting with his own money he
justify payment of such a gargantuan amount. The case itself moreover did had actually done the private respondent a favor, but this is to assume that
 Practice Court Assignment No. 1|23

he did not get anything out of the transaction. Indeed, he himself admits and all my rights of the real properties and/or to redeem," 46 in his favor.
that "[t]itles to the properties have been issued to the new owners long He admits having entered the intercalations in question but argues that he
before the filing of private respondents [sic] petition for annulment." 41 Todid so "to facilitate the registration of the questioned deed with the
say that he did not profit therefrom is to take either this Court or the Register of Deeds" 47 and that it did not change the meaning of the paper,
petitioner for naive, a proposition this Court is not prepared to accept for which Judge Santiago acquitted him of any falsification charges. 48 To
under the circumstances. start with, the Court is at a loss how such an alteration could "facilitate"
registration. Moreover, if it did not change the tenor of the deed, why was
We are likewise convinced that it was the petitioner who succeeded in it necessary then? And why did he not inform his client? At any rate, the
having the private respondent sign the "Deed of Sale and Transfer of agreement is clearly a contract of adhesion. Its provisions should be read
Rights of Equity of Redemption and/or to Redeem," a pre-prepared against the party who prepared it.
document apparently, that allowed him (the petitioner) to exercise the
right of redemption over the properties and to all intents and purposes, But while we cannot hold the petitioner liable for falsification this is not
acquire ownership thereof. As we have earlier averred, the private the proper occasion for it we condemn him nonetheless for infidelity to
respondent, by reason of bankruptcy, had become an easy quarry to his his oath "to do no falsehood" 49
counsel's moral influence and ascendancy. We are hard put to believe that
it was the private respondent who "earnestly implored" 42 him to undertake This brings us to the final question: Whether or not the conveyance in
the redemption amid the former's obstinate attempts to keep his lands that favor of the petitioner is subject to the ban on acquisition by attorneys of
have indeed led to the multiple suits the petitioner now complains of, apart things in litigation. The pertinent provisions of the Civil Code state as
from the fact that the latter himself had something to gain from the follows:
transaction, as alluded to above. We are of the opinion that in ceding his
right of redemption, the private respondent had intended merely to Art. 1491. The following persons cannot acquire by purchase, even at a
forestall the total loss of the parcels to the mortgagee upon the public or judicial action, either in person or through the mediation of
understanding that his counsel shall acquire the same and keep them another:
therefore within reach, subject to redemption by his client under easier
terms and conditions. Surely, the petitioner himself would maintain that he (1) The guardian, the property of the person or persons who may be under
agreed to make the redemption"in order that [he] may already be paid the his guardianship;
P100,000.00 attorney's fees awarded him in the Compromise
Agreement," 43 and if his sole concern was his fees, there was no point in
(2) Agents, the property whose administration or sale may have been
keeping the properties in their entirety.
intrusted to them, unless the consent of the principal have been given;

The Court simply cannot fag for the petitioner's pretensions that he
(3) Executors and administrators, the property of the estate under
acquired the properties as a gesture of magnanimity and altruism He
administration;
denies, of course, having made money from it, but what he cannot dispute
is the fact that he did resell the properties. 44
(4) Public officers and employees, the property of the State or of any
subdivision thereof, or of any government owned or controlled corporation,
But if he did not entertain intents of making any profit, why was it
or institution, the administration of which has been instrusted to them; this
necessary to reword the conveyance document executed by the private
provision shall apply to judges and government experts who, in any
respondent? It shall be recalled that the deed, as originally drafted,
manner whatsoever, take part in the sale;
provided for conveyance of the private respondent's "rights of equity of
redemption and/or redeem" 45 the properties in his favor, whereas the
instrument registered with the Register of Deeds purported to transfer "any

(5) Justice judges prosecuting attorneys clerks of superior and inferior
courts, and other officers and employees connected with the administration
of justice, the property and rights in litigation or levied upon an execution
before the court within whose jurisdiction or territory they exercise their
respective functions; this prohibition includes the act of acquiring by
assignment and shall apply to lawyers, with respect to the property and
rights which may be the object of any litigation in which they may take
part by virtue of their profession.
(6) Any others specially disqualified by law.**
In Rubias v. Batiller, 50 we declared such contracts to be void by force of
Article 1409, paragraph (7), of the Civil Code, defining inexistent contracts.
In Director of Lands v. Ababa 51 however, we said that the prohibition does
not apply to contingent contracts, in which the conveyance takes place
after judgment, so that the property can no longer be said to be "subject of
litigation."
In the instant case, the Court observes that the "Deed of Sale and Transfer
of Rights of Equity of Redemption and/or to Redeem" was executed
following the finality of the decision approving the compromise agreement.
It is actually a new contract not one in pursuance of what had been
agreed upon on compromise in which, as we said, the petitioner
purportedly assumed redemption rights over the disputed properties (but
in reality, acquired absolute ownership thereof). By virtue of such a
subsequent agreement, the lands had ceased to be properties which are
"the object of any litigation." Parenthetically, the Court states that a writ of
possession is improper to eject another from possession unless sought in
connection with: (1) a land registration proceeding; (2) an extrajudicial
foreclosure of mortgage of real property; (3) in a judicial foreclosure of
property provided that the mortgagor has possession and no third party
has intervened; and (4) in execution sales. 52 It is noteworthy that in this
case, the petitioner moved for the issuance of the writ pursuant to the
deed of sale between him and the private respondent and not the
judgment on compromise. (He was, as we said, issued a writ of execution
on the compromise agreement but as we likewise observed, he did not
have the same enforced. The sale agreement between the parties, it should
be noted, superseded the compromise.) The writ does not lie in such a
case. His remedy is specific performance.
Practice Court Assignment No. 1|24
At any rate, the transfer, so we hold, is not subject to the injunction of
Article 1491 of the Civil Code. But like all voidable contracts, it is open to
annulment on the ground of mistake, fraud, or undue influence, 53 which is
in turn subject to the right of innocent purchasers for value. 54
For this reason, we invalidate the transfer in question specifically for undue
influence as earlier detailed. While the respondent Herrera has not
specifically prayed for invalidation, this is the clear tenor of his petition for
annulment in the Appellate Court. It appearing, however, that the
properties have been conveyed to third persons whom we presume to be
innocent purchasers for value, the petitioner, Atty. PaternoCanlas, must be
held liable, by way of actual damages, for such a loss of properties.
We are not, however, condoning the private respondent's own
shortcomings. In condemning Atty. Canlas monetarily, we cannot overlook
the fact that the private respondent has not settled his hability for payment
of the properties. To hold Atty. Canlas alone liable for damages is to enrich
said respondent at the expense of his lawyer. The parties must then set off
their obligations against the other. To obviate debate as the actual
amounts owing by one to the other, we hold Francisco Herrera, the private
respondent, liable to Atty. PaternoCanlas, the petitioner, in the sum of
P654,000.00 representing the redemption price of the properties, 55 in
addition to the sum of P20,000. 00 as and for attomey's fees. We order
Atty. Canlas, in turn, to pay the respondent Herrera the amount of
P1,000,000.00, the sum he earned from the resale thereof, 56 such that he
shall, after proper adjustments, be indebted to his client in the sum of
P326,000.00 as and for damages.
Needless to say, we sustain the action of the respondent Court of Appeals
in taking cognizance of the petition below. But as we have stated, we are
compelled, as the final arbiter of justiciable cases and in the highest
interestsofjustice, to write finis to the controversy that has taxed
considerably the dockets of the inferior courts.
Let the Court further say that while its business is to settle actual
controversies and as a matter of general policy, to leave alone moot ones,
its mission is, first and foremost, to dispense justice. At the outset, we
have made clear that from a technical vantage point, certiorari, arguably
lies, but as we have likewise stated, the resolution of the case rests not
only on the mandate of technical rules, but if the decision is to have any
real meaning, on the merits too. This is not the first time we would have
 Practice Court Assignment No. 1|25

done so; in many cases we have eschewed the rigidity of the Rules of
Court if it would establish a barrier upon the administration ofjustice. It is
especially so in the case at bar, in which no end to suit and counter-suit
appears imminent and for which it is high time that we have the final say.
We likewise cannot, as the overseer of good conduct in both the bench and
the bar, let go unpunished what convinces us as serious indiscretions on
the part of a lawyer.

WHEREFORE, judgment is hereby rendered.

1. ORDERING the petitioner, Atty. PatemoCanlas, to pay to the private

respondent, Francisco Herrera, the sum of P326,000.00, as and for
damages;

2. ORDERING the petitioner to SHOW CAUSE why no disciplinary action

may be imposed on him for violation of his oath, as a lawyer, within ten
(10) days from notice, after which the same will be consolidated with AC
No. 2625;

3. DISMISSING this petition and REMANDING the case to the respondent

Court of Appeals for execution; and

4. ORDERING the petitioner to pay costs.

SO ORDERED.
 Practice Court Assignment No. 1|26

5. B.M. No. 2540 September 24, 2013 Not having signed in the Roll of Attorneys, he was unable to provide his roll
number.
IN RE: PETITION TO SIGN IN THE ROLL OF ATTORNEYS
About seven years later, or on 6 February 2012, Medado filed the instant
MICHAEL A. MEDADO, Petitioner. Petition, praying that he be allowed to sign in the Roll of Attorneys.11

RESOLUTION
SERENO, CJ.:
We resolve the instant Petition to Sign in the Roll of Attorneys filed by
petitioner Michael A. Medado (Medado).
Medado graduated from the University of the Philippines with the degree of
Bachelor of Laws in 19791 and passed the same year's bar examinations
with a general weighted average of 82.7.2
On 7 May 1980, he took the Attorneys Oath at the Philippine International
Convention Center (PICC) together with the successful bar examinees. He
3
The Office of the Bar Confidant (OBC) conducted a clarificatory conference
on the matter on 21 September 2012 12and submitted a Report and
Recommendation to this Court on 4 February 2013.13 The OBC
recommended that the instant petition be denied for petitioners gross
negligence, gross misconduct and utter lack of merit.14 It explained that,
based on his answers during the clarificatory conference, petitioner could
offer no valid justification for his negligence in signing in the Roll of
Attorneys.15
After a judicious review of the records, we grant Medados prayer in the
instant petition, subject to the payment of a fine and the imposition of a
penalty equivalent to suspension from the practice of law.

was scheduled to sign in the Roll of Attorneys on 13 May 1980, 4 but he At the outset, we note that not allowing Medado to sign in the Roll of
failed to do so on his scheduled date, allegedly because he had misplaced Attorneys would be akin to imposing upon him the ultimate penalty of
the Notice to Sign the Roll of Attorneys5 given by the Bar Office when he disbarment, a penalty that we have reserved for the most serious ethical
went home to his province for a vacation.6 transgressions of members of the Bar.

Several years later, while rummaging through his old college files, Medado In this case, the records do not show that this action is warranted.
found the Notice to Sign the Roll of Attorneys. It was then that he realized
that he had not signed in the roll, and that what he had signed at the For one, petitioner demonstrated good faith and good moral character
entrance of the PICC was probably just an attendance record.7 when he finally filed the instant Petition to Sign in the Roll of Attorneys. We
note that it was not a third party who called this Courts attention to
By the time Medado found the notice, he was already working. He stated petitioners omission; rather, it was Medado himself who acknowledged his
that he was mainly doing corporate and taxation work, and that he was not own lapse, albeit after the passage of more than 30 years. When asked by
actively involved in litigation practice. Thus, he operated "under the the Bar Confidant why it took him this long to file the instant petition,
mistaken belief that since he had already taken the oath, the signing of the Medado very candidly replied:
Roll of Attorneys was not as urgent, nor as crucial to his status as a
lawyer";8 and "the matter of signing in the Roll of Attorneys lost its Mahiraphong i-explain yanpero, yun bang at the time, what can you say?
urgency and compulsion, and was subsequently forgotten."9 Takotkakunganongmangyayarisa yo, you dont know whats gonna
happen. At the same time, its a combination of apprehension and anxiety
In 2005, when Medado attended Mandatory Continuing Legal Education of whatsgonna happen. And, finally its the right thing to do. I have to
(MCLE) seminars, he was required to provide his roll number in order for come here sign the roll and take the oath as necessary.16
his MCLE compliances to be credited.10
 Practice Court Assignment No. 1|27

For another, petitioner has not been subject to any action for signed was merely an attendance record, he could no longer claim an
disqualification from the practice of law,17 which is more than what we can honest mistake of fact as a valid justification. At that point, Medado should
say of other individuals who were successfully admitted as members of the have known that he was not a full-fledged member of the Philippine Bar
Philippine Bar. For this Court, this fact demonstrates that petitioner strove because of his failure to sign in the Roll of Attorneys, as it was the act of
to adhere to the strict requirements of the ethics of the profession, and signing therein that would have made him so.26 When, in spite of this
that he has prima facie shown that he possesses the character required to knowledge, he chose to continue practicing law without taking the
be a member of the Philippine Bar. necessary steps to complete all the requirements for admission to the Bar,
he willfully engaged in the unauthorized practice of law.
Finally, Medado appears to have been a competent and able legal
practitioner, having held various positions at the Laurel Law Under the Rules of Court, the unauthorized practice of law by ones
Office,18 Petron, Petrophil Corporation, the Philippine National Oil Company, assuming to be an attorney or officer of the court, and acting as such
and the Energy Development Corporation.19 without authority, may constitute indirect contempt of court, 27 which is
punishable by fine or imprisonment or both.28 Such a finding, however, is
All these demonstrate Medados worth to become a full-fledged member of in the nature of criminal contempt29 and must be reached after the filing of
the Philippine Bar.1wphi1 While the practice of law is not a right but a charges and the conduct of hearings.30 In this case, while it appears quite
privilege,20 this Court will not unwarrantedly withhold this privilege from clearly that petitioner committed indirect contempt of court by knowingly
individuals who have shown mental fitness and moral fiber to withstand the engaging in unauthorized practice of law, we refrain from making any
rigors of the profession. finding of liability for indirect contempt, as no formal charge pertaining
thereto has been filed against him.
That said, however, we cannot fully exculpate petitioner Medado from all
liability for his years of inaction. Knowingly engaging in unauthorized practice of law likewise transgresses
Canon 9 of 'the Code of Professional Responsibility, which provides:
Petitioner has been engaged in the practice of law since 1980, a period
spanning more than 30 years, without having signed in the Roll of CANON 9 -A lawyer shall not, directly or indirectly, assist in the
Attorneys.21 He justifies this behavior by characterizing his acts as "neither unauthorized practice of law.
willful nor intentional but based on a mistaken belief and an honest error of
judgment."22 While a reading of Canon 9 appears to merely prohibit lawyers from
assisting in the unauthorized practice of law, the unauthorized practice of
We disagree. law by the lawyer himself is subsumed under this provision, because at the
heart of Canon 9 is the lawyer's duty to prevent the unauthorized practice
While an honest mistake of fact could be used to excuse a person from the of law. This duty likewise applies to law students and Bar candidates. As
legal consequences of his acts23 as it negates malice or evil motive,24 a aspiring members of the Bar, they are bound to comport themselves in
mistake of law cannot be utilized as a lawful justification, because accordance with the ethical standards of the legal profession.
everyone is presumed to know the law and its
consequences.25 Ignorantiafactiexcusat; ignorantialegisneminemexcusat. Turning now to the applicable penalty, previous violations of Canon 9have
warranted the penalty of suspension from the practice of law.31 As Medado
Applying these principles to the case at bar, Medado may have at first is not yet a full-fledged lawyer, we cannot suspend him from the practice
operated under an honest mistake of fact when he thought that what he of law. However, we see it fit to impose upon him a penalty akin to
had signed at the PICC entrance before the oath-taking was already the suspension by allowing him to sign in the Roll of Attorneys one (1) year
Roll of Attorneys. However, the moment he realized that what he had after receipt of this Resolution. For his transgression of the prohibition
against the unauthorized practice of law, we likewise see it fit to fine him in
 Practice Court Assignment No. 1|28

the amount of 32,000. During the one year period, petitioner is warned
that he is not allowed to engage in the practice of law, and is sternly
warned that doing any act that constitutes practice of law before he has
signed in the Roll of Attorneys will be dealt with severely by this Court.

WHEREFORE, the instant Petition to Sign in the Roll of Attorneys is hereby

GRANTED. Petitioner Michael A. Medado is ALLOWED to sign in the Roll of
Attorneys ONE (1) YEAR after receipt of this Resolution. Petitioner is
likewise ORDERED to pay a FINE of 32,000 for his unauthorized practice
of law. During the one year period, petitioner is NOT ALLOWED to practice
law, and is STERNLY WARNED that doing any act that constitutes practice
of law before he has signed in the Roll of Attorneys will be dealt will be
severely by this Court.

Let a copy of this Resolution be furnished the Office of the Bar Confidant,
the Integrated Bar

of the Philippines, and the Office of the Court Administrator for circulation
to all courts in the country.

SO ORDERED.
 Practice Court Assignment No. 1|29

6. G.R. No. L-17427 July 31, 1962 defendants three (3) private dealers, namely, C. Silvestre, E. M. Haravata
and Victoriano C. Arias, who had allegedly been able to collect payment
RODRIGO ACOSTA, petitioner, upon said purchases. Still later, however, the prosecution filed a second
vs. amended information excluding said dealers from the charge.
PEOPLE OF THE PHILIPPINES, respondent.
The trial under this second amended information, in connection with which
SYLLABUS Acosta and Avila had entered a plea of not guilty, began on June 19, 1952
and ended on July 28, of the same year. However, the trial Judge, Hon.
1. CRIMINAL PROCEDURE; RIGHT TO SPEEDY TRIAL; TRIAL AND Jose P. Veluz, retired from the service without having decided the case. His
JUDGMENT TWO DIFFERENT STAGES OF A JUDICIAL PROCEEDING. Trial successor in office, Hon. Vicente Abad Santos, Judge, "found the transcript
and judgment are two different stages of a judicial proceeding: the former of 482 pages prepared by stenographer Celestino Suarez" replete with
is provided for in Rule 115, and the latter is covered by Rule 116, of the "omissions and also inaccuracies which had been indicated by means of
Rules of Court (Talabon v. Iloilo Provincial Warden, 78 Phil., 600). The marginal notes on the pages mentioned in" an "order of September 25,
period of the trial terminates when the judgment begins (Felismino v. 1957." Judge Abad Santos directed, therefore, said stenographer "to re-
Gloria, 47 Phil., 967). transcribe his notes and to submit the "new transcript as well as the first
transcript" not later than forty days after receipt of a copy of said order".
2. CERTIORARI; ISSUE OF WHETHER OR NOT STENOGRAPHIC NOTES But, "instead of re-transcribing his notes . . ., Mr. Suarez merely made
REFLECT FAITHFULLY WHAT TRANSPIRED AT THE TRIAL; FINDING OF corrections in handwriting and inserted some supplemental transcripts in
COURT OF APPEALS THEREON CONCLUSIVE ON SUPREME COURT. The the original transcripts". Upon reading those supplemental typed
opinion of the Court of Appeals to the effect that the transcript of the transcripts, particularly the portion covering the cross-examination of
stenographic notes taken during the trial of the case in the court of first witness Pedro Palafox by defense counsel Cipriano Asada, Judge Abad
instance does not reflect faithfully what transpired during said trial is Santos noticed, however, that it was still "full of inaccuracies". Accordingly,
conclusive upon the Supreme Court. he ordered the stenographer to read his notes in his (Judge Abad Santos)
chamber, in order that the necessary corrections could be made on the
transcript. Upon going over said notes, it appeared that said portion
CONCEPCION, J.:
"consisted of eleven pages although the transcript thereof was spread to
eight pages only". Hence, Suarez was ordered to further transcribe what
Appeal by certiorari, taken by Rodrigo Acosta, from a decision of the Court
had thus been omitted. What is more, in order that he could decide the
of Appeals remanding this case to the court of origin for retrial and the
case with a "clear conscience", Judge Abad Santos bade Suarez to stay in
rendition of judgment in accordance with the evidence that the parties may
his (Judge Abad Santos') office in order to read his (Suarez) notes from the
then present.
beginning, with stenographer Montes checking the transcript already made.
Although he did not immediately reveal his objection thereto, Suarez later
It appears that on January 2, 1951, an information for malversation of refused to work in said office stating that "it made him dizzy to come up
public funds thru reckless negligence was filed, with the Court of First and" that "besides he was going to resign or retire" and then asked to be
Instance of Bukidnon, against petitioner Rodrigo Acosta, for having allowed to do his work in the first floor of the court house. Instead of
allegedly made, as Provincial Treasurer of Bukidnon, "irregular and granting his request, Judge Abad Santos recommended to the Department
excessive purchases of supplies, materials, equipment and printed forms of Justice, in order to avoid further delay in the disposition of the case, (a)
from private dealers for the use of the province", and against Leonardo that any application for retirement or resignation that may be submitted by
Avila, for having, as Provincial Auditor of the same province, "passed in Suarez be denied; and (b) that payment of his salary be suspended until
audit the corresponding vouchers covering the payments for such otherwise recommended, after compliance with the order that he should
purchases." Subsequently, the information was amended to include as work in the office of the Judge, provided that the result of his work is

satisfactory. Eventually, the transcript of the stenographic notes, certified
to be "true and correct", consisted of 658 pages as compared to only 482
pages found by Judge Abad Santos on September 9, 1957.
Meanwhile, Judge Abad Santos had resigned leaving the case undecided.
He was succeeded in office by Hon. AbudioArrieta, Judge, who, on October
27, 1958, rendered a decision convicting the defendants as charged and
sentencing each to an indeterminate penalty ranging from eleven (11)
years, six (6) months and twenty (20) days ofprision mayor to sixteen (16)
years, five (5) months and eleven (11) days of reclusion temporal, to pay a
fine of P28,808.86, representing one-half of the total sum allegedly
misappropriated, as well as to jointly and severally indemnify the province
of Bukidnon in the sum of P62,955.06, without subsidiary imprisonment in
case of insolvency, to perpetual disqualification and to pay the costs.
Both defendants appealed from this decision to the Court of Appeals and
urged the same to acquit them upon the ground, among others, that said
decision was based on incomplete and tampered transcript, upon which a
conviction beyond reasonable doubt could not be predicated. Acosta,
moreover, claimed that his constitutional right to a speedy trial had been
violated. On July 2, 1960, the Court of Appeals rendered its decision, from
which we quote:
. . . on the basis of available transcript, (which originally contains 482
pages and when retranscribed and corrected it consists of 658 pages),
indicating that irregularities in taking the notes and in transcription thereof
were committed, we can not see our way clear to pronounce either were
conviction or acquittal in this case. Indeed, the evidence in this case is not
quite accurate or reliable for the reasons already underscored earlier. Since
the crime with which the accused were charged carries a stiff penalty and
that it is one that should be fully prosecuted for being highly undesirable, if
not immoral, we prefer to subordinate acquittal or conviction to time.
Stated otherwise, we are of the opinion that the ends of justice, both to the
government and to the accused, would be better served if further
proceedings will take place in order that this case could be decided
satisfactorily once and for all.
From the "corrected" transcript, we gathered that counsel for accused
Leonardo Avila in the court below incurred certain inconsistencies, to wit:
Practice Court Assignment No. 1|30
(1) Your Honor please, without renouncing or waiving our rights to present
evidence for the defense of the accused Leonardo Avila, . . . we move for
the dismissal of this case on two grounds:
x xx x xx x xx
(2) As regards the accused Avila, Your Honor, we waive our right to
present evidence on his defense and we submit the case for decision with
the evidence presented by the Fiscal, and we beg to allow us to withdraw
insofar as the accused Avila is concerned we beg to leave the
courtroom.
(3) We do not ask for a separate trial, Your Honor, in order to obviate
duplicity of questions, but now we will ask for a separate defense.
(4) And that is within the lookout of the defense, Your Honor, and we
reiterate our motion to leave this Honorable Court to allow us to leave the
courtroom, and consider our case closed. (t.s.n., pp. 545, 554, & 558.)
On appeal, counsel for appellant Leonardo Avila filed a motion for new trial,
because of the aforequoted statements and of the erroneous and
incomplete transcript of the trial stenographer. The motion was, however,
denied (Rec. 3rd Div., Feb. 12, 1959). Appellate Courts have that broad
power to order new trial without specifying the grounds thereof in order to
avoid a miscarriage of justice. The grounds upon which courts of first
instance may grant a new trial are limited (Pls. see Sec. 5, Rule 117, Rules
of Court), but appellate courts, under Section 14, Rule 120 are authorized
to remand a case to a court of first instance for new trial or retrial, without
specifying, and, hence, without limiting, the grounds upon which the action
may be predicated. And pursuant to Section 11, Rule 120, of the Rules of
Court, an appellate court may . . . remand a case to a court of first
instance for new trial or retrial . . . .
WHEREFORE, the record of this case is ordered remanded to the court of
origin for retrial and another judgment be rendered in accordance with the
evidence that the parties concerned may desire to present.
Acosta sought a reconsideration of this decision, which was denied. Hence,
his present appeal by certiorari.

Petitioner maintains that the Court of Appeals erred in ordering a retrial,
instead of acquitting him, not only because he had been deprived of the
constitutional right to a speedy trial, but, also, because a retrial would be
impractical, oppressive and expensive, apart from amounting to a denial of
justice, for a principal witness for the defense, one Justiniano B. Castillo,
had allegedly died on December 24, 1957, and his other witnesses may no
longer be available.
It should be noted that the original information in this case was filed on
January 2, 1951 and that the trial of the reception of the evidence for both
parties commenced on June 19, 1952 and was finished on July 18 of the
same year. Petitioner does not contend that there has been any undue
delay in this part of the proceedings. His alleged deprivation of the right to
a speedy trial is anchored on the fact that the decision of the lower court
was rendered over six (6) years later. In this connection, the Court of
Appeals aptly observed:
. . . True enough that judgment was pronounced after almost six years.
But "the constitutional right to a public and speedy trial does not extend to
the act of pronouncement of sentenced" (Reed vs. State, 147 Ind., N. E.,
135, 136). It has been said that "trial and judgment are two different
stages of a judicial proceeding: the former is provided for in Rule 115, and
the latter is covered by Rule 116, of the Rule of Court. (Talabon v. Iloilo
Prov. Warden, 78 Phil., 600). And "the period of the trial terminates when
the judgment begins" (Felismino vs. Gloria, 47 Phil., 967). Therefore, and
since the accused did not avail themselves of the writ of mandamus to
compel the trial judge or his successor to pronounce the corresponding
judgement, it may be said in the light of the ruling laid down in the case
of Talabon vs. Iloilo Prov. Warden, infra, that they had waived their right to
a speedy trial.
Indeed:
No general principle fixes the exact time within which a trial must be had to
satisfy the requirement of a speedy trial. The right to a speedy trial is
necessarily relative; it is consistent with delays, and whether such a trial is
afforded must be determined in the light of the circumstances of each
particular case as a matter of judicial discretion. It is generally said that a
speedy trial is one had as soon after indictment as the prosecution can with
reasonable diligence prepare for it, regard being had to the terms of court,
a trial conducted according to fixed rules, regulations and proceedings of
Practice Court Assignment No. 1|31
law, free from vexations, capricious, and oppressive delays. One accused of
crime is not entitled to a trial immediately on his arrest or accusation, he
must wait a regular term of the court until an indictment is found and
presented if the case is one wherein the trial is on indictment, and until the
prosecution has had reasonable time to prepare for the trial. (22 C.J.S.,
715-716.)
Under constitutional provision securing to accused "the right to a public
trial", or a "speedy trial", is has been held that the formal declaration of
sentence is no part of the trial. (24 C.J.S., 16.)
Moreover, the delay in the rendition of the decision of the court of first
instance was due to circumstances beyond the control of the judges who
presided the same. Judge Veluz, who received the evidence, was
automatically retired owing to his age. Judge Abad Santos, who succeeded
him, could not decide the case because he found the transcript to be
inaccurate and he had to make disciplinary measures in order to compel
stenographer Suarez to retranscribe his notes. By the time this was done,
Judge Abad Santos was no longer in the service. Hence, his successor
Judge Arrieta was the one who rendered the decision of the lower court.
Upon the other hand, we cannot, in the exercise of our jurisdiction on
appeal by certiorari, absolve the petitioner of the crime charged against
him, for there are no findings of fact in the decision of the Court of Appeals
upon which this Court could base a judgement of acquittal. Moreover, the
opinion of the Court of Appeals to the effect that the transcript of the
stenographic notes taken during the trial of this case in the court of first
instance does not reflect faithfully what transpired during said trial is, apart
from being shared by petitioner herein, conclusive upon us. Under these
circumstances, we should not interfere in the exercise of discretion by the
Court of Appeals. In the language of Corpus Juris:
Under a statute which provides that a person restrained of his liberty is
entitled to certiorari to inquire into the cause of his
imprisonment, certiorari does not lie to review a determination in a criminal
case where relator was discharged from custody under a bail bond. The
reason for such a rule is that the relator, therefore, was not restrained of
his liberty. The imprisonment or restraint in his liberty within the meaning
of this section, is an actual physical restraint by which the liberty of the
individuals is in some way interferred with. A person cannot be said to be
restrained in his liberty when he can do what and go where he pleases. The
 Practice Court Assignment No. 1|32

mere fact his bail has authority to surrender him to custody at any time is
not a restrained in his liberty. . . . If the relation should be surrendered by
his bail, and thus be actually in custody, he would be entitled to have the
cause of his detention reviewed; but until there is an actual restraint of his
liberty, he is not entitled to either of these writs (certiorari or habeas
corpus) . . . . (17 Corpus Juris, pp. 18-19.)

We are not unaware of the possible disadvantages to which petitioner

might be placed in the event of a retrial, but we are not in a position now
to determine the facts of such disadvantages. In fact, the very petitioner
has not particularized the evidence which not be available to him at a
retrial, aside from the circumstances that the prosecution may then be
similarly handicapped. In any event, when the retrial takes place,
petitioner may point out what evidence he can no longer present and why,
and the Court should then considered the effect thereof upon the question
of guilt or innocence of petitioner herein.

WHEREFORE, the decision of the Court of Appeals is hereby affirmed, and

the case remanded to the Court of First Instance of Bukidnon for further
proceedings in compliance therewith. It is so ordered.