PALE (Cannon 1) |1
A.M. No. P-06-2177             June 27, 2006
(Formerly A.M. No. 06-4-268-RTC)
RE: REPORT ON THE FINANCIAL AUDIT CONDUCTED
ON THE BOOKS OF ACCOUNTS OF ATTY. RAQUEL G.
KHO, CLERK OF COURT IV, REGIONAL TRIAL COURT,
ORAS, EASTERN SAMAR .
RESOLUTION
CORONA, J.:
This administrative case is a result of the audit conducted
by the Office of the Court Administrator (OCA) of the books
of accounts of Atty. Raquel G. Kho, former clerk of court of
the Regional Trial Court, Branch 5, Oras, Eastern Samar.
The audit covered the period March 1985 to October 31,
2005.
The OCA, in its memorandum dated April 18, 2006, had the
following findings: (1) there was a shortage of P545.00 in
remittances to the General Fund; (2) a cash shortage
of P24.00 in the Sheriff’s General Fund; and (3) Atty. Kho
did not deposit on time in the authorized depository bank
the collections for the Fiduciary Fund (P60,000) and Special
Allowance for the Judiciary Fund (P5,000). It also noted that
Atty. Kho had already restituted the P545.00 and P24.00
cash shortages.
Regarding the delayed remittance of the amount of P60,000
representing the amount of a confiscated cash bond, Kho
explained that the Land Bank of the Philippines (the
authorized depository bank) had no branch in their locality.
The nearest Land Bank branch was approximately 95
kilometers away so it was his practice to keep his
collections in the court’s safety vault.
On the other hand, the amount of P5,000 was collected as
filing fee for an election protest. According to Kho, this was
collected under Rule 40 of the Commission on Elections
(COMELEC) Rules of Procedure. In defense, he presented
a letter addressed to Senior Deputy Court Administrator
Zenaida N. Elepaño inquiring where to remit said amount.
The OCA, through Deputy Court Administrator Jose P.
Perez, responded that pending official instructions on how
to manage the money collected under Rule 40 of the
COMELEC Rules, it was to be treated as trust deposits and
temporarily deposited in the Fiduciary Fund. 1 However, Kho
failed to do this.
Consequently, the audit team advised him to deposit
the P5,000 in the Special Allowance for the Judiciary Fund
as provided under Sec. 21 (g) of the amended
Administrative Circular No. 35-2004.2 He was also advised
to deposit the confiscated P60,000 cash bond in the
Judicial Development Fund account. He complied with both
directives on November 15, 2005.
On January 26, 2006, the OCA received a letter-complaint
with the information that Kho, along with his alleged
common-law-wife, stenographer Riza Amor L. Libanan, was
engaged in lending out to court employees money in his
possession as clerk of court, personally deriving profit from
the interest earned.
The OCA found Kho liable for violating OCA Circular No.
8A-933 dated April 21, 1993 when he kept the funds in a
safety vault for more than a year. All clerks of lower courts
are supposed to deposit all collections from bail bonds,
rental deposits and other fiduciary collections with the Land
Bank upon receipt thereof. Thus, it recommended that (1)
the audit report be docketed as a regular administrative
complaint against Kho and (2) a fine in the amount
of P10,000 be imposed on him.
We agree with the OCA’s recommendations.
Public office is a public trust.4 Those charged with the
dispensation of justice, from the justices and judges to the
lowliest clerks, should be circumscribed with the heavy
burden of responsibility.5 Not only must their conduct at all
times be characterized by propriety and decorum but,
above all else, it must be beyond suspicion. 6
A clerk of court, aside from being the custodian of the
court’s funds, revenues, property and premises, is also
entrusted with the primary responsibility of correctly and
effectively implementing regulations regarding fiduciary
funds.7 Safekeeping of funds and collections is essential to
an orderly administration of justice and no protestation of
good faith can override the mandatory nature of the
circulars designed to promote full accountability for
government funds.8 Clerks of court have always been
reminded of their duty to immediately deposit the various
funds received by them to the authorized government
depositories for they are not supposed to keep funds in
their custody.9
Kho failed to make a timely turn-over of cash deposited with
him. This was inexcusable because he could have
purchased postal money orders from the local post office
payable to the chief accountant, Accounting Division, FMO-
OCA. The money could have earned interest had he not
kept them in the vault for over a year. 10 As found by the
OCA, although Kho had restituted all his cash
accountabilities, he was nevertheless liable for failing to
immediately deposit the collections for the judiciary funds.
The failure to remit the funds in due time constitutes gross
dishonesty and gross misconduct. It diminishes the faith of
the people in the Judiciary.11 Dishonesty, being in the nature
of a grave offense, carries the extreme penalty of dismissal
from the service even if committed for the first time.
However, Kho showed remorse by immediately restituting
the cash shortages and complying with the directives of the
audit team. And considering that this is his first offense, we
find that the penalty of P10,000 fine is sufficient.
We note that Kho has already transferred to the
Department of Justice. However, it neither renders this
matter moot nor frees him from liability.
Moreover, his misconduct reflects on his fitness as a
member of the bar. His malfeasance prima
facie contravenes Canon 1,12 Rule 1.0113 of the Code of
Professional Responsibility. Hence, he should explain why
no further disciplinary sanction should be imposed on him.
WHEREFORE, Atty. Raquel G. Kho is hereby
found GUILTY of gross misconduct for his failure to make
timely remittance of judiciary funds in his custody. He is
ordered to pay a FINE of P10,000 within ten (10) days from
receipt of this resolution.
Atty. Kho is further ordered to SHOW CAUSE within the
same period why he should not be disciplined for such
misconduct as a lawyer and as an officer of the Court.
SO ORDERED.

A.C. No. 4904             August 12, 2004
ANA A. CHUA and MARCELINA HSIA, complainants,
vs.
ATTY. SIMEON M. MESINA, JR., respondent.
PER CURIAM:
By a verified complaint received by the Office of the Bar
1 
Confidant on May 5, 1998, Ana Alvaran Chua and
2 
Marcelina Hsia administratively charged Atty. Simeon M.
Mesina, Jr., for breach of professional ethics, gross
professional misconduct, and culpable malpractice.
As related by complainants, the following facts gave rise to
the filing of the complaint.
Respondent was, for years, Ana Alvaran Chua and her now
deceased husband Chua Yap An’s legal counsel and
adviser upon whom they reposed trust and confidence.
They were in fact lessees of a building situated at Burgos
Street, Cabanatuan City (Burgos property) owned by
respondent’s family, and another property containing an
area of 854 sq. m., situated at Melencio Street, Cabanatuan
City (Melencio property), also owned by respondent’s family
whereon they (spouses Chua) constructed their house.
These two properties were mortgaged by the registered
owner, respondent’s mother Felicisima Melencio vda. de
Mesina (Mrs. Mesina), in favor of the Planters Development
Bank to secure a loan she obtained.
As Mrs. Mesina failed to meet her obligation to the bank,
respondent convinced complainant Ana Chua and her
husband to help Mrs. Mesina by way of settling her
obligation in consideration for which the Melencio property
would be sold to them at P850.00/sq. m.
Accommodating respondent’s request, the spouses Chua
and their business partner, herein co-complainant
Marcelina Hsia, settled Mrs. Mesina’s bank obligation in the
amount of P983,125.40.
A Deed of Absolute Sale dated January 19, 1985 conveying
3 
the Melencio property for P85,400.00 was thereafter
executed by Mrs. Mesina, whose name appears therein as
"Felicisima M. Melencio," in favor of complainants.
As complainants were later apprised of the amount of
capital gains tax they were to pay, they consulted
respondent about it. Respondent thus suggested to them
that another Deed of Absolute Sale should be executed,
antedated to 1979 before the effectivity of the law
mandating the payment of capital gains tax. As suggested
by respondent, another Deed of Absolute Sale antedated
February 9, 1979 was executed by Mrs. Mesina, whose
4 
name again appears therein as "Felicisima M. Melencio," in
favor of complainants wherein the purchase price was also
indicated to be P85,400.00.
After liquidating the advances made by the Chua spouses
"in the redemption of the MESINA properties," Mrs. Mesina
was found to have "an existing balance" due the spouses in
the amount of P400,000.00, on account of which they
advised respondent about it. Respondent, by Affidavit of
February 18, 1986, "acknowledged such obligation" to be
his and undertook to settle it within two years.
Complainants were subsequently issued on January 21,
1986 a title over the Melencio property.
Not long after the execution of the February 9, 1979 Deed
of Absolute Sale or in February 1986, one Juanito Tecson
PALE (Cannon 1) |2
(Tecson) filed an Affidavit dated February 20, 1986 before
5 
the Cabanatuan City Prosecutor’s Office charging
respondent’s mother, the spouses Chua, Marcelina Hsia
and the two witnesses to the said Deed of Absolute Sale,
for Falsification of Public Document and violation of the
Internal Revenue Code. In his complaint affidavit, Tecson
alleged that he was also a lessee of the Melencio property
and was, along with the Chua spouses, supposed to
purchase it but that contrary to their agreement, the
property was sold only to complainant and her co-
complainant, to his exclusion. Tecson went on to relate that
the February 9, 1979 Deed of Absolute Sale did not reflect
the true value of the Melencio property and was antedated
"to evade payment of capital gains tax."
Tecson submitted documents showing that indeed the July
9, 1979 Deed of Absolute Sale was antedated.
Respondent thereupon hatched a plan to dodge the
falsification charge against Mrs. Mesina et al. He proposed
to complainants that they would simulate a deed of sale of
the Melencio property wherein complainants would resell it
to Mrs. Mesina.
Heeding the proposal of respondent, complainants
executed a Deed of Absolute Sale dated April 1,
1986 conveying to "Felicisima M. Melencio" the Melencio
6 
property for P85,400.00.
A new title was accordingly issued on April 4, 1986 in the
name of "Felicisima M. Melencio," the owner’s copy of
which was entrusted to complainants.
Tecson subsequently filed before the Cabanatuan City
Prosecutor’s Office an Affidavit of Desistance dated
September 5, 1986 alleging that his filing of the criminal
7 
complaint "arose out of mere misunderstanding and
difference" with herein complainants and their co-
respondents and he had no sufficient evidence against
them.
Some years later or on May 2, 1990, respondent
approached complainants and told them that he would
borrow the owner’s copy of Mrs. Mesina’s title with the
undertaking that he would, in four months, let Mrs. Mesina
execute a deed of sale over the Melencio property in
complainants’ favor. In fact, respondent gave complainants
a written undertaking dated May 2, 1990 reading:
8 
Received the owner’s duplicate copy of TCT No.
4383 issued by the Register of Deeds, Cabanatuan
City registered in the name of Felicisima Mesina,
widow, consisting of about 854 square meters
more or less located at calle Melencio, Cabanatuan
City from Mrs. Ana Chua and Marcelina Hsia.
I promise to and undertake to have the Deed of
Sale of the above-mentioned property in favor of
Ana Chua and Marcelina Hsia to be signed by
Mrs. Felicisima Mesina, within four (4) months from
date hereof so that the above-mentioned property
and title maybe transferred in the name of Ana
Chua and Macelina Hsia. (Underscoring supplied)
In the meantime, Mrs. Mesina died "in the early part of
1991."
Despite respondent’s repeated promises "to effect" the
transfer of title in complainants’ name, he failed to do so.
Complainants were later informed that the Melencio
property was being offered for sale to the public.

The spouses Chua and complainant Marcelina Hsia thus
filed on August 24, 1992 a Complaint against respondent
9 
and his two siblings before the Regional Trial Court (RTC)
of Nueva Ecija in Cabanatuan City, for "Declaration of
Nullity of Sale and Reconveyance of Real Property."
As of the time of the filing of the present administrative
complaint in 1998, the civil case against the Mesina siblings
was still pending.
This Court, by Resolution of July 13, 1998, directed
respondent to file Comment on the complaint within ten
days.
By Resolution of December 2, 1998, this Court, noting that
11 
the copy of the Resolution of July 13, 1998 requiring
respondent to comment on the complaint sent to him at his
office address at S. M. Mesina Law Office, 30 Jupiter St.,
Paseo de Roxas, Bel-Air Subd., Makati City was returned
unserved with the notation "Moved," considered the
Resolution of July 13, 1998 served on respondent by
substituted service pursuant to Rule 13, Section 8 of the
1997 Rules of Civil Procedure. Respondent was
accordingly deemed to have waived the filing of the
required comment.
By the same Resolution of December 2, 1998, the case
was referred to the Integrated Bar of the Philippines (IBP)
for investigation, report and recommendation within ninety
days.
The IBP, acting on the complaint, issued a notice of hearing
on September 14, 2001, copy of which was sent to
12 
respondent at his office address via registered mail,
covered by Registry Receipt No. 2605 of the Meralco Post
Office. On the scheduled date of hearing, complainants
13  recommendation of Atty. Rebecca Villanueva-Maala, the
personally appeared with their counsel. Respondent failed
to show up.
Given the length of time that the case remained pending
from its filing, the IBP Commission on Bar Discipline, by
Order of October 12, 2001, directed complainants to just
14 
file their position paper with affidavits and supporting
documents in lieu of actual presentation of witnesses and to
serve a copy thereof to respondent at his last known
address.
In compliance with the IBP Order, complainants filed on
April 1, 2002 their position paper, annexed to which were
15  1.01, Code of Professional Responsibility). On the
photocopies of: 1) a May 5, 1993 Certification issued by the
Metrobank Cabanatuan Branch certifying that "it issued the
demand drafts to the payees enumerated below, which
were debited from the account of Mr. Chua Yap An under
Savings Account No. 760:
D/D No. Payee
214597 Planters Dev. Bank
214760 Planters Dev. Bank
214761 Atty. Simeon Mesina, Jr.
2) Affidavit dated February 18, 1986 of respondent 17 
acknowledging a debt of P400,000.00 to complainant Ana
Alvaran Chua and promising to pay interest thereon within 2
years to commence upon the signing thereof [February 16,
1998] and, in the event no partial or full payment of the
principal is made within 2 years, Ana Alvaran Chua "is
under no obligation to pay any lease rentals over the lot
situated in Burgos Avenue, Cabanatuan City where the
Oceanic Hardware Bldg. is erected;" 3) Deed of Absolute
Sale dated January 19, 1985 and 4) Deed of Absolute Sale
18 
PALE (Cannon 1) |3
dated July 9, 1979, both executed by "Felicisima M.
19 
Melencio" in favor of complainant; 5) TCT No. T-
48114 issued by the Cabanatuan City in the name of
20 
complainants on January 21, 1986; 6) Affidavit of Juanito C.
Tecson dated January 20, 1986 charging complainants et
21 
al. for Falsification of Public Documents; 7) Deed of
Absolute Sale dated April 1, 1986 executed by
complainants in favor of Mrs. Mesina; and 8) TCT No. T-22 
48383issued on April 4, 1986 in the name of "Felicisima M.
Melencio;" and 9) Complaint of spouses Chua Yap An and
23 
Ana Alvaran Chua and Marcelina Hsia, for Declaration of
10 
Nullity of Deed of Sale and Reconveyance of Real Property
against respondent and his two siblings. 24
A copy of complainant’s position paper was sent on March
18, 2002 to respondent at his office address by registered
mail covered by Registry Receipt No. 5278. There is no 25 
showing if respondent received this mail matter.
The IBP once more scheduled, by notice of December 13,
2002, a hearing of the administrative case to January 15,
26 
2003, copy of which notice was sent to respondent at his
office address by registered mail covered by Registry
Receipt No. 2953 issued by the Meralco Post Office. 27
On the scheduled hearing on January 15, 2003, the IBP
Investigating Commissioner, by Order of even date, noted 28 
the presence of complainants, and the absence of
respondent, copy of the notice of hearing to whom was
returned unserved with the notation "RTS-Moved." The
case was thereupon deemed submitted for report and
recommendation.
On June 21, 2003, the IBP passed Resolution No. XV-
2003-342 adopting and approving the report and
29 
Investigating Commissioner of the case.
In her March 3, 2003 Report and
Recommendation, Investigation Commissioner
30 
Maala
observed as follows:
A lawyer should not engage or participate on any
unlawful, dishonest, immoral or deceitful conduct.
The moral character he displayed when he applied
for admission at the Bar must be maintained
incessantly. Otherwise, his privilege to practice the
legal profession may be withdrawn from him (Rule
16  basis of the uncontroverted facts and evidence
presented, respondent Atty. Simeon M. Mesina has
committed gross misconduct which shows him to
be unfit for the office and unworthy of the privilege
which his license and law confer upon him,
and recommended that respondent be suspended for a
Amount period of One (1) Year.
P 805,299.54
This Court finds that indeed, respondent is guilty of gross
100,000.00 misconduct.
77,826.10 First, by advising complainants to execute another Deed of
Absolute Sale antedated to 1979 to evade payment of
capital gains taxes, he violated his duty to promote respect
for law and legal processes, and not to abet activities
31 
aimed at defiance of the law; That respondent intended to,
32 
as he did defraud not a private party but the government is
aggravating. 33

Second, when respondent convinced complainants to
execute another document, a simulated Deed of Absolute
Sale wherein they made it appear that complainants
reconveyed the Melencio property to his mother, he
committed dishonesty. 34
Third, when on May 2, 1990 respondent inveigled his own
clients, the Chua spouses, into turning over to him the
owner’s copy of his mother’s title upon the
misrepresentation that he would, in four months, have a
deed of sale executed by his mother in favor of
complainants, he likewise committed dishonesty.
That the signature of "Felicisima M. Melencio" in the 1985
document and that in the 1979 document are markedly
35  36 
different is in fact is a badge of falsification of either the
1979 or the 1985 document or even both.
A propos is this Court’s following pronouncement in Nakpil
v. Valdez37
As a rule, a lawyer is not barred from dealing with
his client but the business transaction must be
characterized with utmost honesty and good
faith. The measure of good faith which an attorney
is required to exercise in his dealings with his client
is a much higher standard that is required in
business dealings where the parties trade at "arms
length." Business transactions between an attorney
and his client are disfavored and discouraged by
the policy of the law. Hence, courts carefully watch
these transactions to assure that no advantage is
taken by a lawyer over his client. This rule is
founded on public policy for, by virtue of his office,
an attorney is in an easy position to take
advantage of the credulity and ignorance of his
client. Thus, no presumption of innocence or
improbability of wrongdoing is considered in an
attorney’s favor. (Underscoring supplied)
38 
Respondent having welched on his promise to cause the
reconveyance of the Melencio property to complainants,
consideration of whether he should be ordered to honor
such promise should be taken up in the civil case filed for
the purpose, the issue there being one of ownership while
that in the case at bar is moral fitness.
39
In fine, respondent violated his oath of office and, more
specifically, the following canons of the Code of
Professional Responsibility:
CANON 1. A LAWYER SHALL UPHOLD THE
CONSTITUTION, OBEY THE LAWS OF THE
LAND AND PROMOTE RESPECT FOR LAW AND
LEGAL PROCESSES.
Rule 1.01. - A lawyer shall not engage in unlawful,
dishonest, immoral or deceitful conduct.
Rule 1.02. - A lawyer shall not counsel or abet
activities aimed at defiance of the law or at
lessening confidence in the legal system.
CANON 7. A LAWYER SHALL AT ALL TIMES
UPHOLD THE INTEGRITY AND DIGNITY OF THE
LEGAL PROFESSION AND SUPPORT THE
ACTIVITIES OF THE INTEGRATED BAR.
Rule 7.03. - A lawyer shall not engage in conduct
that adversely reflects on his fitness to practice
law, nor shall he, whether in public or private life,
behave in a scandalous manner to the discredit of
the legal profession.
PALE (Cannon 1) |4
CANON 15. A LAWYER SHALL OBSERVE
CANDOR, FAIRNESS AND LOYALTY IN ALL HIS
DEALINGS AND TRANSACTIONS WITH HIS
CLIENTS.
Rule 15.07. - A lawyer shall impress upon his client
compliance with the laws and the principles of
fairness.
CANON 17. A LAWYER OWES FIDELITY TO THE
CAUSE OF HIS CLIENT AND HE SHALL BE
MINDFUL OF THE TRUST AND CONFIDENCE
REPOSED IN HIM.
WHEREFORE, respondent ATTY. SIMEON M. MESINA,
JR. is, for gross misconduct, hereby DISBARRED.
Let copies of this Decision be furnished all courts, the
Integrated Bar of the Philippines, and the Office of the Bar
Confidant.
SO ORDERED.
A.C. No. 6792             January 25, 2006
ROBERTO SORIANO, Complainant,
vs.
Atty. MANUEL DIZON, Respondent.
DECISION
PER CURIAM:
Before us is a Complaint-Affidavit 1 for the disbarment of
Atty. Manuel Dizon, filed by Roberto Soriano with the
Commission on Bar Discipine (CBD) of the Integrated Bar
of the Philippines (IBP). Complainant alleges that the
conviction of respondent for a crime involving moral
turpitude, together with the circumstances surrounding the
conviction, violates Canon 1 of Rule 1.01 of the Code of
Professional Responsibility;2 and constitutes sufficient
ground for his disbarment under Section 27 of Rule 138 of
the Rules of Court.3
Because of the failure of Atty. Dizon to submit his Answer to
the Complaint, the CBD issued a Notice dated May 20,
2004, informing him that he was in default, and that an ex-
parte hearing had been scheduled for June 11, 2004. 4 After
that hearing, complainant manifested that he was
submitting the case on the basis of the Complaint and its
attachments.5 Accordingly, the CBD directed him to file his
Position Paper, which he did on July 27, 2004. 6 Afterwards,
the case was deemed submitted for resolution.
On December 6, 2004, Commissioner Teresita J. Herbosa
rendered her Report and Recommendation, which was later
adopted and approved by the IBP Board of Governors in its
Resolution No. XVI-2005-84 dated March 12, 2005.
In his Complaint-Affidavit, Soriano alleged that respondent
had violated Canon 1, Rule 1.01 of the Code of
Professional Responsibility; and that the conviction of the
latter for frustrated homicide,7 which involved moral
turpitude, should result in his disbarment.
The facts leading to respondent’s conviction were
summarized by Branch 60 of the Regional Trial Court of
Baguio City in this wise:

"x x x. The accused was driving his brown Toyota Corolla
and was on his way home after gassing up in preparation
for his trip to Concepcion, Tarlac with his wife. Along
Abanao Street, a taxi driver overtook the car driven by the
accused not knowing that the driver of the car he had
overtaken is not just someone, but a lawyer and a
prominent member of the Baguio community who was
under the influence of liquor. Incensed, the accused tailed
the taxi driver until the latter stopped to make a turn at [the]
Chugum and Carino Streets. The accused also stopped his
car, berated the taxi driver and held him by his shirt. To
stop the aggression, the taxi driver forced open his door
causing the accused to fall to the ground. The taxi driver
knew that the accused had been drinking because he
smelled of liquor. Taking pity on the accused who looked
elderly, the taxi driver got out of his car to help him get up.
But the accused, by now enraged, stood up immediately
and was about to deal the taxi driver a fist blow when the
latter boxed him on the chest instead. The accused fell
down a second time, got up again and was about to box the
taxi driver but the latter caught his fist and turned his arm
around. The taxi driver held on to the accused until he could
be pacified and then released him. The accused went back
to his car and got his revolver making sure that the handle
was wrapped in a handkerchief. The taxi driver was on his
way back to his vehicle when he noticed the eyeglasses of
the accused on the ground. He picked them up intending to
return them to the accused. But as he was handing the
same to the accused, he was met by the barrel of the gun
held by the accused who fired and shot him hitting him on
the neck. He fell on the thigh of the accused so the latter
pushed him out and sped off. The incident was witnessed
by Antonio Billanes whose testimony corroborated that of
the taxi driver, the complainant in this case, Roberto
Soriano."8
It was the prosecution witness, Antonio Billanes, who came
to the aid of Soriano and brought the latter to the hospital.
Because the bullet had lacerated the carotid artery on the
left side of his neck, 9 complainant would have surely died of
hemorrhage if he had not received timely medical
assistance, according to the attending surgeon, Dr.
Francisco Hernandez, Jr. Soriano sustained a spinal cord
injury, which caused paralysis on the left part of his body
and disabled him for his job as a taxi driver.
The trial court promulgated its Decision dated November
29, 2001. On January 18, 2002, respondent filed an
application for probation, which was granted by the court on
several conditions. These included satisfaction of "the civil
liabilities imposed by [the] court in favor of the offended
party, Roberto Soriano."10
According to the unrefuted statements of complainant, Atty.
Dizon, who has yet to comply with this particular
undertaking, even appealed the civil liability to the Court of
Appeals.11
In her Report and Recommendation, Commissioner
Herbosa recommended that respondent be disbarred from
the practice of law for having been convicted of a crime
involving moral turpitude.
The commissioner found that respondent had not only been
convicted of such crime, but that the latter also exhibited an
obvious lack of good moral character, based on the
following facts:
"1. He was under the influence of liquor while
driving his car;
"2. He reacted violently and attempted to assault
Complainant only because the latter, driving a taxi,
had overtaken him;
PALE (Cannon 1) |5
"3. Complainant having been able to ward off his
attempted assault, Respondent went back to his
car, got a gun, wrapped the same with a
handkerchief and shot Complainant[,] who was
unarmed;
"4. When Complainant fell on him, Respondent
simply pushed him out and fled;
"5. Despite positive identification and overwhelming
evidence, Respondent denied that he had shot
Complainant;
"6. Apart from [his] denial, Respondent also lied
when he claimed that he was the one mauled by
Complainant and two unidentified persons; and,
"7. Although he has been placed on probation,
Respondent has[,] to date[,] not yet satisfied his
civil liabilities to Complainant."12
On July 8, 2005, the Supreme Court received for its final
action the IBP Resolution adopting the Report and
Recommendation of the Investigating Commissioner.
We agree with the findings and recommendations of
Commissioner Herbosa, as approved and adopted by the
IBP Board of Governors.
Under Section 27 of Rule 138 of the Rules of Court,
conviction for a crime involving moral turpitude is a ground
for disbarment or suspension. By such conviction, a lawyer
is deemed to have become unfit to uphold the
administration of justice and to be no longer possessed of
good moral character.13 In the instant case, respondent has
been found guilty; and he stands convicted, by final
judgment, of frustrated homicide. Since his conviction has
already been established and is no longer open to question,
the only issues that remain to be determined are as follows:
1) whether his crime of frustrated homicide involves moral
turpitude, and 2) whether his guilt warrants disbarment.
Moral turpitude has been defined as "everything which is
done contrary to justice, modesty, or good morals; an act of
baseness, vileness or depravity in the private and social
duties which a man owes his fellowmen, or to society in
general, contrary to justice, honesty, modesty, or good
morals."14
The question of whether the crime of homicide involves
moral turpitude has been discussed in International Rice
Research Institute (IRRI) v. NLRC,15 a labor case
concerning an employee who was dismissed on the basis
of his conviction for homicide. Considering the particular
circumstances surrounding the commission of the crime,
this Court rejected the employer’s contention and held that
homicide in that case did not involve moral turpitude. (If it
did, the crime would have been violative of the IRRI’s
Employment Policy Regulations and indeed a ground for
dismissal.) The Court explained that, having disregarded
the attendant circumstances, the employer made a
pronouncement that was precipitate. Furthermore, it was
not for the latter to determine conclusively whether a crime
involved moral turpitude. That discretion belonged to the
courts, as explained thus:
"x x x. Homicide may or may not involve moral turpitude
depending on the degree of the crime. Moral turpitude is not
involved in every criminal act and is not shown by every
known and intentional violation of statute, but whether any
particular conviction involves moral turpitude may be a
question of fact and frequently depends on all the
surrounding circumstances. x x x."16 (Emphasis supplied)

In the IRRI case, in which the crime of homicide did not
involve moral turpitude, the Court appreciated the presence
of incomplete self-defense and total absence of aggravating
circumstances. For a better understanding of that Decision,
the circumstances of the crime are quoted as follows:
"x x x. The facts on record show that Micosa [the IRRI
employee] was then urinating and had his back turned
when the victim drove his fist unto Micosa's face; that the
victim then forcibly rubbed Micosa's face into the filthy
urinal; that Micosa pleaded to the victim to stop the attack
but was ignored and that it was while Micosa was in that
position that he drew a fan knife from the left pocket of his
shirt and desperately swung it at the victim who released
his hold on Micosa only after the latter had stabbed him
several times. These facts show that Micosa's intention was
not to slay the victim but only to defend his person. The
appreciation in his favor of the mitigating circumstances of
self-defense and voluntary surrender, plus the total
absence of any aggravating circumstance demonstrate that
Micosa's character and intentions were not inherently vile,
immoral or unjust."17
The present case is totally different. As the IBP correctly
found, the circumstances clearly evince the moral turpitude
of respondent and his unworthiness to practice law.
Atty. Dizon was definitely the aggressor, as he pursued and
shot complainant when the latter least expected it. The act
of aggression shown by respondent will not be mitigated by
the fact that he was hit once and his arm twisted by
complainant. Under the circumstances, those were
reasonable actions clearly intended to fend off the lawyer’s
assault.
We also consider the trial court’s finding of treachery as a
further indication of the skewed morals of respondent. He
shot the victim when the latter was not in a position to
defend himself. In fact, under the impression that the
assault was already over, the unarmed complainant was
merely returning the eyeglasses of Atty. Dizon when the
latter unexpectedly shot him. To make matters worse,
respondent wrapped the handle of his gun with a
handkerchief so as not to leave fingerprints. In so doing, he
betrayed his sly intention to escape punishment for his
crime.
The totality of the facts unmistakably bears the earmarks of
moral turpitude. By his conduct, respondent revealed his
extreme arrogance and feeling of self-importance. As it
were, he acted like a god on the road, who deserved to be
venerated and never to be slighted. Clearly, his inordinate
reaction to a simple traffic incident reflected poorly on his
fitness to be a member of the legal profession. His
overreaction also evinced vindictiveness, which was
definitely an undesirable trait in any individual, more so in a
lawyer. In the tenacity with which he pursued complainant,
we see not the persistence of a person who has been
grievously wronged, but the obstinacy of one trying to
assert a false sense of superiority and to exact revenge.
It is also glaringly clear that respondent seriously
transgressed Canon 1 of the Code of Professional
Responsibility through his illegal possession of an
unlicensed firearm18 and his unjust refusal to satisfy his civil
liabilities.19 He has thus brazenly violated the law and
disobeyed the lawful orders of the courts. We remind him
that, both in his attorney’s oath 20 and in the Code of
Professional Responsibility, he bound himself to "obey the
laws of the land."
All told, Atty. Dizon has shown through this incident that he
is wanting in even a basic sense of justice. He obtained the
benevolence of the trial court when it suspended his
PALE (Cannon 1) |6
sentence and granted him probation. And yet, it has been
four years21 since he was ordered to settle his civil liabilities
to complainant. To date, respondent remains adamant in
refusing to fulfill that obligation. By his extreme impetuosity
and intolerance, as shown by his violent reaction to a
simple traffic altercation, he has taken away the earning
capacity, good health, and youthful vigor of his victim. Still,
Atty. Dizon begrudges complainant the measly amount that
could never even fully restore what the latter has lost.
Conviction for a crime involving moral turpitude may relate,
not to the exercise of the profession of lawyers, but
certainly to their good moral character.22 Where their
misconduct outside of their professional dealings is so
gross as to show them morally unfit for their office and
unworthy of the privileges conferred upon them by their
license and the law, the court may be justified in
suspending or removing them from that office.23
We also adopt the IBP’s finding that respondent displayed
an utter lack of good moral character, which is an essential
qualification for the privilege to enter into the practice of
law. Good moral character includes at least common
honesty.24
In the case at bar, respondent consistently displayed
dishonest and duplicitous behavior. As found by the trial
court, he had sought, with the aid of Vice-Mayor Daniel
Fariñas, an out-of-court settlement with complainant’s
family.25 But when this effort failed, respondent concocted a
complete lie by making it appear that it was complainant’s
family that had sought a conference with him to obtain his
referral to a neurosurgeon.26
The lies of Atty Dizon did not end there. He went on to
fabricate an entirely implausible story of having been
mauled by complainant and two other persons.27 The trial
court had this to say:
"The physical evidence as testified to by no less than three
(3) doctors who examined [Atty. Dizon] does not support his
allegation that three people including the complainant
helped each other in kicking and boxing him. The injuries
he sustained were so minor that it is improbable[,] if not
downright unbelievable[,] that three people who he said
were bent on beating him to death could do so little
damage. On the contrary, his injuries sustain the
complainant’s version of the incident particularly when he
said that he boxed the accused on the chest. x x x." 28
Lawyers must be ministers of truth. No moral qualification
for bar membership is more important than
truthfulness.29 The rigorous ethics of the profession places a
premium on honesty and condemns duplicitous
behavior.30 Hence, lawyers must not mislead the court or
allow it to be misled by any artifice. In all their dealings, they
are expected to act in good faith.
The actions of respondent erode rather than enhance public
perception of the legal profession. They constitute moral
turpitude for which he should be disbarred. "Law is a noble
profession, and the privilege to practice it is bestowed only
upon individuals who are competent intellectually,
academically and, equally important, morally. Because they
are vanguards of the law and the legal system, lawyers
must at all times conduct themselves, especially in their
dealings with their clients and the public at large, with
honesty and integrity in a manner beyond reproach." 31
The foregoing abhorrent acts of respondent are not merely
dishonorable; they reveal a basic moral flaw. Considering
the depravity of the offense he committed, we find the
penalty recommended by the IBP proper and
commensurate.

The purpose of a proceeding for disbarment is to protect
the administration of justice by requiring that those who
exercise this important function be competent, honorable
and reliable -- lawyers in whom courts and clients may
repose confidence.32 Thus, whenever a clear case of
degenerate and vile behavior disturbs that vital yet fragile
confidence, we shall not hesitate to rid our profession of
odious members.
We remain aware that the power to disbar must be
exercised with great caution, and that disbarment should
never be decreed when any lesser penalty would
accomplish the end desired. In the instant case, however,
the Court cannot extend that munificence to respondent.
His actions so despicably and wantonly disregarded his
duties to society and his profession. We are convinced that
meting out a lesser penalty would be irreconcilable with our
lofty aspiration for the legal profession -- that every lawyer
be a shining exemplar of truth and justice.
We stress that membership in the legal profession is a
privilege demanding a high degree of good moral character,
not only as a condition precedent to admission, but also as
a continuing requirement for the practice of law. Sadly,
herein respondent has fallen short of the exacting
standards expected of him as a vanguard of the legal
profession.
In sum, when lawyers are convicted of frustrated homicide,
the attending circumstances – not the mere fact of their
conviction – would demonstrate their fitness to remain in
the legal profession. In the present case, the appalling
vindictiveness, treachery, and brazen dishonesty of
respondent clearly show his unworthiness to continue as a
member of the bar.
WHEREFORE, RESPONDENT MANUEL DIZON is
hereby DISBARRED, and his name is ORDERED
STRICKEN from the Roll of Attorneys. Let a copy of this
Decision be entered in his record as a member of the Bar;
and let notice of the same be served on the Integrated Bar
of the Philippines, and on the Office of the Court
Administrator for circulation to all courts in the country.
SO ORDERED.
A.C. No. 8010               June 16, 2009
KELD STEMMERIK, represented by ATTYS. HERMINIO
A. LIWANAG and WINSTON P.L.
ESGUERRA, Complainant,
vs.
ATTY. LEONUEL N. MAS, Respondent.
RESOLUTION
Per Curiam:
Complainant Keld Stemmerik is a citizen and resident of
Denmark. In one of his trips to the Philippines, he was
introduced to respondent Atty. Leonuel N. Mas. That was
his misfortune.
In one visit to the Philippines, complainant marveled at the
beauty of the country and expressed his interest in
acquiring real property in the Philippines. He consulted
respondent who advised him that he could legally acquire
and own real property in the Philippines. Respondent even
suggested an 86,998 sq.m. property in Quarry, Agusuin,
Cawag, Subic, Zambales with the assurance that the
property was alienable.
PALE (Cannon 1) |7
Trusting respondent, complainant agreed to purchase the
property through respondent as his representative or
attorney-in-fact. Complainant also engaged the services of
respondent for the preparation of the necessary documents.
For this purpose, respondent demanded and received a
₱400,000 fee.
Confident that respondent would faithfully carry out his task,
complainant returned to Denmark, entrusting the
processing of the necessary paperwork to respondent.
Thereafter, respondent prepared a contract to sell the
property between complainant, represented by respondent,
and a certain Bonifacio de Mesa, the purported owner of
the property.1 Subsequently, respondent prepared and
notarized a deed of sale in which de Mesa sold and
conveyed the property to a certain Ailyn Gonzales for ₱3.8
million.2 Respondent also drafted and notarized an
agreement between complainant and Gonzales stating that
it was complainant who provided the funds for the purchase
of the property.3 Complainant then gave respondent the full
amount of the purchase price (₱3.8 million) for which
respondent issued an acknowledgment receipt. 4
After the various contracts and agreements were executed,
complainant tried to get in touch with respondent to inquire
about when the property could be registered in his name.
However, respondent suddenly became scarce and refused
to answer complainant’s calls and e-mail messages.
When complainant visited the Philippines again in January
2005, he engaged the services of the Jimenez Gonzales
Liwanag Bello Valdez Caluya & Fernandez Law Office to
ascertain the status of the property he supposedly bought.
He was devastated to learn that aliens could not own land
under Philippine laws. Moreover, verification at the
Community Environment & Natural Resources Office
(CENRO) of the Department of Environment and Natural
Resources in Olongapo City revealed that the property was
inalienable as it was situated within the former US Military
Reservation.5 The CENRO also stated that the property was
not subject to disposition or acquisition under Republic Act
No. 141.6
Thereafter, complainant, through his attorneys-in-
fact,7 exerted diligent efforts to locate respondent for
purposes of holding him accountable for his fraudulent acts.
Inquiry with the Olongapo Chapter of the Integrated Bar of
the Philippines (IBP) disclosed that respondent was in
arrears in his annual dues and that he had already
abandoned his law office in Olongapo City. 8 Search of court
records of cases handled by respondent only yielded his
abandoned office address in Olongapo City. 1avvphi1
Complainant filed a complaint for disbarment against
respondent in the Commission on Bar Discipline (CBD) of
the IBP.9 He deplored respondent’s acts of serious
misconduct. In particular, he sought the expulsion of
respondent from the legal profession for gravely
misrepresenting that a foreigner could legally acquire land
in the Philippines and for maliciously absconding with
complainant’s ₱3.8 million.10
Respondent failed to file his answer and position paper
despite service of notice at his last known address. Neither
did he appear in the scheduled mandatory conference. In
this connection, the CBD found that respondent abandoned
his law practice in Olongapo City after his transaction with
complainant and that he did not see it fit to contest the
charges against him.11
The CBD ruled that respondent used his position as a
lawyer to mislead complainant on the matter of land
ownership by a foreigner.12 He even went through the

motion of preparing falsified and fictitious contracts, deeds
and agreements. And for all these shameless acts, he
collected ₱400,000 from complainant. Worse, he pocketed
the ₱3.8 million and absconded with it.13
The CBD found respondent to be "nothing more than an
embezzler" who misused his professional status as an
attorney as a tool for deceiving complainant and
absconding with complainant’s money.14 Respondent was
dishonest and deceitful. He abused the trust and
confidence reposed by complainant in him. The CBD
recommended the disbarment of respondent.15
The Board of Governors of the IBP adopted the findings
and recommendation of the CBD with the modification that
respondent was further required to return the amount of
₱4.2 million to respondent.16
We agree with the IBP.
Sufficiency Of Notice Of
The Disbarment Proceedings
We shall first address a threshold issue: was respondent
properly given notice of the disbarment proceedings against
him? Yes.
The respondent did not file any answer or position paper,
nor did he appear during the scheduled mandatory
conference. Respondent in fact abandoned his last known
address, his law office in Olongapo City, after he committed
the embezzlement.
Respondent should not be allowed to benefit from his
disappearing act. He can neither defeat this Court’s
jurisdiction over him as a member of the bar nor evade
administrative liability by the mere ruse of concealing his
whereabouts. Thus, service of the complaint and other
orders and processes on respondent’s office was sufficient
notice to him.
Indeed, since he himself rendered the service of notice on
him impossible, the notice requirement cannot apply to him
and he is thus considered to have waived it. The law does
not require that the impossible be done. Nemo tenetur ad
impossibile.17 The law obliges no one to perform an
impossibility. Laws and rules must be interpreted in a way
that they are in accordance with logic, common sense,
reason and practicality.18
In this connection, lawyers must update their records with
the IBP by informing the IBP National Office or their
respective chapters19 of any change in office or residential
address and other contact details. 20 In case such change is
not duly updated, service of notice on the office or
residential address appearing in the records of the IBP
National Office shall constitute sufficient notice to a lawyer
for purposes of administrative proceedings against him.
Respondent’s Administrative Infractions
And His Liability Therefor
Lawyers, as members of a noble profession, have the duty
to promote respect for the law and uphold the integrity of
the bar. As men and women entrusted with the law, they
must ensure that the law functions to protect liberty and not
as an instrument of oppression or deception.
Respondent has been weighed by the exacting standards
of the legal profession and has been found wanting.
Respondent committed a serious breach of his oath as a
lawyer. He is also guilty of culpable violation of the Code of
PALE (Cannon 1) |8
Professional Responsibility, the code of ethics of the legal
profession.
All lawyers take an oath to support the Constitution, to obey
the laws and to do no falsehood. 21 That oath is neither mere
formal ceremony nor hollow words. It is a sacred trust that
should be upheld and kept inviolable at all times.22
Lawyers are servants of the law 23 and the law is their
master. They should not simply obey the laws, they should
also inspire respect for and obedience thereto by serving as
exemplars worthy of emulation. Indeed, that is the first
precept of the Code of Professional Responsibility:
CANON 1 – A LAWYER SHALL UPHOLD THE
CONSTITUTION, OBEY THE LAWS OF THE LAND AND
PROMOTE RESPECT FOR LAW AND LEGAL
PROCESSES.
Section 7, Article XII of the Constitution provides:
SEC. 7. Save in cases of hereditary succession, no private
lands shall be transferred or conveyed except to individuals,
corporations, or associations qualified to acquire or hold
lands of the public domain.
This Court has interpreted this provision, as early as the
1947 case Krivenko v. Register of Deeds,24 to mean that
"under the Constitution, aliens may not acquire private or
agricultural lands, including residential lands." The provision
is a declaration of imperative constitutional policy.25
Respondent, in giving advice that directly contradicted a
fundamental constitutional policy, showed disrespect for the
Constitution and gross ignorance of basic law. Worse, he
prepared spurious documents that he knew were void and
illegal.
By making it appear that de Mesa undertook to sell the
property to complainant and that de Mesa thereafter sold
the property to Gonzales who made the purchase for and in
behalf of complainant, he falsified public documents and
knowingly violated the Anti-Dummy Law.26
Respondent’s misconduct did not end there. By advising
complainant that a foreigner could legally and validly
acquire real estate in the Philippines and by assuring
complainant that the property was alienable, respondent
deliberately foisted a falsehood on his client. He did not
give due regard to the trust and confidence reposed in him
by complainant. Instead, he deceived complainant and
misled him into parting with ₱400,000 for services that were
both illegal and unprofessional. Moreover, by pocketing and
misappropriating the ₱3.8 million given by complainant for
the purchase of the property, respondent committed a
fraudulent act that was criminal in nature.1avvphi1
Respondent spun an intricate web of lies. In the process, he
committed unethical act after unethical act, wantonly
violating laws and professional standards.
For all this, respondent violated not only the lawyer’s oath
and Canon 1 of the Code of Professional Responsibility. He
also transgressed the following provisions of the Code of
Professional Responsibility:
Rule 1.01. – A lawyer shall not engage in unlawful,
dishonest, immoral or deceitful conduct.
Rule 1.02. – A lawyer shall not counsel or abet activities
aimed at defiance of the law or at lessening confidence
in the legal system.

CANON 7 – A LAWYER SHALL AT ALL TIMES UPHOLD
THE INTEGRITY AND DIGNITY OF THE LEGAL
PROFESSION AND SUPPORT THE ACTIVITIES OF THE
INTEGRATED BAR.
CANON 15 – A LAWYER SHALL OBSERVE
CANDOR, FAIRNESS AND LOYALTY IN ALL HIS
DEALINGS AND TRANSACTIONS WITH HIS CLIENT.
CANON 16 – A LAWYER SHALL HOLD IN TRUST ALL
MONEYS AND PROPERTIES OF HIS CLIENT THAT MAY
COME INTO HIS POSSESSION.
CANON 17 – A LAWYER OWES FIDELITY TO THE
CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL
OF THE TRUST AND CONFIDENCE REPOSED IN HIM.
(emphasis supplied)
A lawyer who resorts to nefarious schemes to circumvent
the law and uses his legal knowledge to further his selfish
ends to the great prejudice of others, poses a clear and
present danger to the rule of law and to the legal system.
He does not only tarnish the image of the bar and degrade
the integrity and dignity of the legal profession, he also
betrays everything that the legal profession stands for.
It is respondent and his kind that give lawyering a bad
name and make laymen support Dick the Butcher’s call,
"Kill all lawyers!"27 A disgrace to their professional brethren,
they must be purged from the bar.
WHEREFORE, respondent Atty. Leonuel N. Mas is
hereby DISBARRED. The Clerk of Court is directed to
immediately strike out the name of respondent from the Roll
of Attorneys.
Respondent is hereby ORDERED to return to complainant
Keld Stemmerik the total amount of ₱4.2 million with
interest at 12% per annum from the date of promulgation of
this resolution until full payment. Respondent is
further DIRECTED to submit to the Court proof of payment
of the amount within ten days from payment.
The National Bureau of Investigation (NBI) is ORDERED to
locate Atty. Mas and file the appropriate criminal charges
against him. The NBI is further DIRECTED to regularly
report the progress of its action in this case to this Court
through the Bar Confidant.
Let copies of this resolution be furnished the Bar Confidant
who shall forthwith record it in the personal file of
respondent, the Court Administrator who shall inform all
courts of the Philippines, the Integrated Bar of the
Philippines which shall disseminate copies to all its
chapters and members and all administrative and quasi-
judicial agencies of the Republic of the Philippines.
SO ORDERED.
G.R. No. 104599 March 11, 1994
JON DE YSASI III, petitioner,
vs.
PALE (Cannon 1) |9
NATIONAL LABOR RELATIONS COMMISSION
(FOURTH DIVISION), CEBU CITY, and JON DE
YSASI, respondents.
F.B. Santiago, Nalus & Associates for petitioner.
Ismael A. Serfino for private respondent.
REGALADO, J.:
The adage that blood is thicker than water obviously stood
for naught in this case, notwithstanding the vinculum of
paternity and filiation between the parties. It would indeed
have been the better part of reason if herein petitioner and
private respondent had reconciled their differences in an
extrajudicial atmosphere of familial amity and with the grace
of reciprocal concessions. Father and son opted instead for
judicial intervention despite the inevitable acrimony and
negative publicity. Albeit with distaste, the Court cannot
proceed elsewise but to resolve their dispute with the same
reasoned detachment accorded any judicial proceeding
before it.
The records of this case reveal that petitioner was
employed by his father, herein private respondent, as farm
administrator of Hacienda Manucao in Hinigaran, Negros
Occidental sometime in April, 1980. Prior thereto, he was
successively employed as sales manager of Triumph
International (Phil.), Inc. and later as operations manager of
Top Form Manufacturing (Phil.), Inc. His employment as
farm administrator was on a fixed salary, with other
allowances covering housing, food, light, power, telephone,
gasoline, medical and dental expenses.
As farm administrator, petitioner was responsible for the
supervision of daily activities and operations of the
sugarcane farm such as land preparation, planting,
weeding, fertilizing, harvesting, dealing with third persons in
all matters relating to the hacienda  and attending to such
other tasks as may be assigned to him by private
respondent. For this purpose, he lived on the farm,
occupying the upper floor of the house there.
Following his marriage on June 6, 1982, petitioner moved to
Bacolod City with his wife and commuted to work daily. He
suffered various ailments and was hospitalized on two
separate occasions in June and August, 1982. In
November, 1982, he underwent fistulectomy, or the surgical
removal of the fistula, a deep sinuous ulcer. During his
recuperation which lasted over four months, he was under
the care of Dr. Patricio Tan. In June, 1983, he was confined
for acute gastroenteritis and, thereafter, for infectious
hepatitis from December, 1983 to January, 1984.
During the entire periods of petitioner's illnesses, private
respondent took care of his medical expenses and
petitioner continued to receive compensation. However, in
April, 1984, without due notice, private respondent ceased
to pay the latter's salary. Petitioner made oral and written
demands for an explanation for the sudden withholding of
his salary from Atty. Apolonio Sumbingco, private
respondent's auditor and legal adviser, as well as for the
remittance of his salary. Both demands, however, were not
acted upon.
Petitioner then filed an action with the National Labor
Relations Commission (NLRC, for brevity), Regional
Arbitration Branch No. VI, Bacolod City, on October 17,
1984, docketed therein as RAB Case No. 0452-84, against
private respondent for illegal dismissal with prayer for
reinstatement without loss of seniority rights and payment

of full back wages, thirteenth month pay for 1983,
consequential, moral and exemplary damages, as well as
attorney's fees.
On July 31, 1991, said complaint for illegal dismissal was
dismissed by the NLRC,  holding that petitioner abandoned
1
his work and that the termination of his employment was for
a valid cause, but ordering private respondent to pay
petitioner the amount of P5,000.00 as penalty for his failure
to serve notice of said termination of employment to the
Department of Labor and Employment as required by Batas
Pambansa Blg. 130 and consonant with this Court's ruling
in Wenphil Corporation vs. National Labor Relations
Commission, et al.  On appeal to the Fourth Division of the
2
NLRC, Cebu City, said decision was affirmed in toto. 3
His motion for reconsideration  of said decision having been
4 citing Sections 15(d) and 16(d), Rule 44 (should be Section
denied for lack of merit,  petitioner filed this petition
5 16[c]
presenting the following issues for resolution: (1) whether or
not the petitioner was illegally dismissed; (2) whether or not
he is entitled to reinstatement, payment of back wages,
thirteenth month pay and other benefits; and (3) whether or
not he is entitled to payment of moral and exemplary
damages and attorney's fees because of illegal dismissal.
The discussion of these issues will necessarily subsume
the corollary questions presented by private respondent,
such as the exact date when petitioner ceased to function
as farm administrator, the character of the pecuniary
amounts received by petitioner from private respondent,
that is, whether the same are in the nature of salaries or
pensions, and whether or not there was abandonment by
petitioner of his functions as farm administrator.
In his manifestation dated September 14, 1992, the Solicitor
General recommended a modification of the decision of
herein public respondent sustaining the findings and
conclusions of the Executive Labor Arbiter in RAB Case No.
0452-84,  for which reason the NLRC was required to
6
submit its own comment on the petition. In compliance with
the Court's resolution of November 16, 1992,  NLRC filed its
7
comment on February 12, 1992 largely reiterating its earlier
position in support of the findings of the Executive Labor
Arbiter.
8
Before proceeding with a discussion of the issues, the
observation of the labor arbiter is worth noting:
This case is truly unique. What makes this
case unique is the fact that because of the
special relationship of the parties and the
nature of the action involved, this case
could very well go down (in) the annals of
the Commission as perhaps the first of its
kind. For this case is an action filed by an
only son, his father's namesake, the only
child and therefore the only heir against
his own father. 9
Additionally, the Solicitor General remarked:
. . . After an exhaustive reading of the
records, two (2) observations were noted
that may justify why this labor case
deserves special considerations. First,
most of the complaints that petitioner and
private respondent had with each other,
were personal matters affecting father and
son relationship. And secondly, if any of
the complaints pertain to their work, they
allow their personal relationship to come in
the way. 10
I. Petitioner maintains that his dismissal from employment
was illegal because of want of just cause therefor and non-
P A L E ( C a n n o n 1 ) | 10
observance of the requirements of due process. He also
charges the NLRC with grave abuse of discretion in relying
upon the findings of the executive labor arbiter who decided
the case but did not conduct the hearings thereof.
Private respondent, in refutation, avers that there was
abandonment by petitioner of his functions as farm
administrator, thereby arming private respondent with a
ground to terminate his employment at Hacienda Manucao.
It is also contended that it is wrong for petitioner to question
the factual findings of the executive labor arbiter and the
NLRC as only questions of law may be appealed for
resolution by this Court. Furthermore, in seeking the
dismissal of the instant petition, private respondent faults
herein petitioner for failure to refer to the corresponding
pages of the transcripts of stenographic notes, erroneously
and [d],
Rule 46 and Section 1[g], Rule 50) of the Rules of Court,
which provide that want of page references to the records is
a ground for dismissal of an appeal.
Prefatorily, we take advertence of the provisions of Article
221 of the Labor Code that technical rules of evidence
prevailing in courts of law and equity shall not be
controlling, and that every and all reasonable means to
speedily and objectively ascertain the facts in each case
shall be availed of, without regard to technicalities of law or
procedure in the interest of due process.
It is settled that it is not procedurally objectionable for the
decision in a case to be rendered by a judge, or a labor
arbiter for that matter, other than the one who conducted
the hearing. The fact that the judge who heard the case
was not the judge who penned the decision does not impair
the validity of the judgment,  provided that he draws up his
11
decision and resolution with due care and makes certain
that they truly and accurately reflect conclusions and final
dispositions on the bases of the facts of and evidence
submitted in the case. 12
Thus, the mere fact that the case was initially assigned to
Labor Arbiter Ricardo T. Octavio, who conducted the
hearings therein from December 5, 1984 to July 11, 1985,
and was later transferred to Executive Labor Arbiter Oscar
S. Uy, who eventually decided the case, presents no
procedural infirmity, especially considering that there is a
presumption of regularity in the performance of a public
officer's functions,  which petitioner has not successfully
13
rebutted.
We are constrained to heed the underlying policy in the
Labor Code relaxing the application of technical rules of
procedure in labor cases in the interest of due process,
ever mindful of the long-standing legal precept that rules of
procedure must be interpreted to help secure, not defeat,
justice. For this reason, we cannot indulge private
respondent in his tendency to nitpick on trivial technicalities
to boost his arguments. The strength of one's position
cannot be hinged on mere procedural niceties but on solid
bases in law and jurisprudence.
The fundamental guarantees of security of tenure and due
process dictate that no worker shall be dismissed except for
just and authorized cause provided by law and after due
process.  Article 282 of the Labor Code enumerates the
14
causes for which an employer may validly terminate an
employment, to wit:
(a) serious misconduct or willful disobedience by the
employee of the lawful orders of his employer or
representative in connection with his work; (b) gross and
habitual neglect by the employee of his duties; (c) fraud or
willful breach by the employee of the trust reposed in him
by his employer or duly authorized representative; (d)
commission of a crime or offense by the employee against

the person of his employer or any immediate member of his
family or his duly authorized representative; and (e) other
causes analogous to the foregoing.
The employer may also terminate the services of any
employee due to the installation of labor saving devices,
redundancy, retrenchment to prevent losses or the closing
or cessation of operation of the establishment or
undertaking, unless the closing is for the purpose of
circumventing the pertinent provisions of the Labor Code,
by serving a written notice on the workers and the
Department of Labor and Employment at least one (1)
month before the intended date thereof, with due
entitlement to the corresponding separation pay rates
provided by law.  Suffering from a disease by reason
15
whereof the continued employment of the employee is
prohibited by law or is prejudicial to his and his co-
employee's health, is also a ground for termination of his
services provided he receives the prescribed separation
pay.  On the other hand, it is well-settled that abandonment
16
by an employee of his work authorizes the employer to
effect the former's dismissal from employment. 17
After a careful review of the records of this case, we find
that public respondent gravely erred in affirming the
decision of the executive labor arbiter holding that petitioner
abandoned his employment and was not illegally dismissed
from such employment. For want of substantial bases, in
fact or
in law, we cannot give the stamp of finality and
conclusiveness normally accorded to the factual findings of
an administrative agency, such as herein public respondent
NLRC,  as even decisions of administrative agencies which
18
are declared "final" by law are not exempt from judicial
review when so warranted.  19
The following perceptive disquisitions of the Solicitor
General on this point deserve acceptance:
It is submitted that the absences of
petitioner in his work from October 1982 to
December 1982, cannot be construed as
abandonment of work because he has a
justifiable excuse. Petitioner was suffering
from perennial abscess in the peri-anal
around the anus and fistula under the
medical attention of Dr. Patricio Tan of
Riverside Medical Center, Inc., Bacolod
City (Tsn, Vol. III, Dr. Tan, February 19,
1986 at 20-44).
This fact (was) duly communicated to
private respondent by medical bills sent to
Hacienda Manucao (Tsn, Vol. III, Dr. Tan,
January 22, 1987 at 49-50).
During the period of his illness and
recovery, petitioner stayed in Bacolod City
upon the instruction(s) of private
respondent to recuperate thereat and to
handle only administrative matters of the
hacienda in that city. As a manager,
petitioner is not really obliged to live and
stay 24 hours a day inside Hacienda
Manucao.
xxx xxx xxx
After evaluating the evidence within the
context of the special circumstances
involved and basic human experience,
petitioner's illness and strained family
relation with respondent Jon de Ysasi II
may be considered as justifiable reason
P A L E ( C a n n o n 1 ) | 11
for petitioner Jon de Ysasi III's absence
from work during the period of October
1982 to December 1982. In any event,
such absence does not warrant outright
dismissal without notice and hearing.
xxx xxx xxx
The elements of abandonment as a
ground for dismissal of an employee are
as follows:
(1) failure to report for
work or absence without
valid or justifiable reason;
and (2) clear intention to
sever the employer-
employee tie (Samson
Alcantara, Reviewer in
Labor and Social
Legislation, 1989 edition,
p. 133).
This Honorable Court, in several cases,
illustrates what constitute abandonment.
In Dagupan Bus Company v.  NLRC  (191
SCRA 328), the Court rules that for
abandonment to arise, there must be a
concurrence of the intention to abandon
and some overt act from which it may be
inferred that the employee has no more
interest to work. Similarly, in Nueva Ecija I
Electric Cooperative, Inc. v.  NLRC  (184
SCRA 25), for abandonment to constitute
a valid cause for termination of
employment, there must be a deliberate,
unjustified refusal of the employee to
resume his employment. . . Mere absence
is not sufficient; it must be accompanied
by overt acts unerringly pointing to the fact
that the employee simply does not want to
work anymore.
There are significant indications in this
case, that there is no abandonment. First,
petitioner's absence and his decision to
leave his residence inside Hacienda
Manucao, is justified by his illness and
strained family relations. Second he has
some medical certificates to show his frail
health. Third, once able to work, petitioner
wrote a letter (Annex "J") informing private
respondent of his intention to assume
again his employment. Last, but not the
least, he at once instituted a complaint for
illegal dismissal when he realized he was
unjustly dismissed. All these are
indications that petitioner had no intention
to abandon his employment. 20
The records show that the parties herein do not dispute the
fact of petitioner's confinement in the hospital for his various
afflictions which required medical treatment. Neither can it
be denied that private respondent was well aware of
petitioner's state of health as the former admittedly
shouldered part of the medical and hospital bills and even
advised the latter to stay in Bacolod City until he was fit to
work again. The disagreement as to whether or not
petitioner's ailments were so serious as to necessitate
hospitalization and corresponding periods for recuperation
is beside the point. The fact remains that on account of said
illnesses, the details of which were amply substantiated by
the attending physician,  and as the records are bereft of
21
any suggestion of malingering on the part of petitioner,
there was justifiable cause for petitioner's absence from

work. We repeat, it is clear, deliberate and unjustified
refusal to resume employment and not mere absence that
is required to constitute abandonment as a valid ground for
termination of employment. 22
With his position as farm administrator of Hacienda
Manucao, petitioner unmistakably may be classified as a
managerial employee  to whom the law grants an amount
23
of discretion in the discharge of his duties. This is why when
petitioner stated that "I assigned myself where I want to
go,"  he was simply being candid about what he could do
24
within the sphere of his authority. His duties as farm
administrator did not strictly require him to keep regular
hours or to be at the office premises at all times, or to be
subjected to specific control from his employer in every
aspect of his work. What is essential only is that he runs the
farm as efficiently and effectively as possible and, while
petitioner may definitely not qualify as a model employee, in
this regard he proved to be quite successful, as there was
at least a showing of increased production during the time
that petitioner was in charge of farm operations.
If, as private respondent contends, he had no control over
petitioner during the years 1983 to 1984, this is because
that was the period when petitioner was recuperating from
illness and on account of which his attendance and direct
involvement in farm operations were irregular and minimal,
hence the supervision and control exercisable by private
respondent as employer was necessarily limited. It goes
without saying that the control contemplated refers only to
matters relating to his functions as farm administrator and
could not extend to petitioner's personal affairs and
activities.
While it was taken for granted that for purposes of
discharging his duties as farm administrator, petitioner
would be staying at the house in the farm, there really was
no explicit contractual stipulation (as there was no formal
employment contract to begin with) requiring him to stay
therein for the duration of his employment or that any
transfer of residence would justify the termination of his
employment. That petitioner changed his residence should
not be taken against him, as this is undeniably among his
basic rights, nor can such fact of transfer of residence  per
se be a valid ground to terminate an employer-employee
relationship.
Private respondent, in his pleadings, asserted that as he
was yet uncertain of his son's intention of returning to work
after his confinement in the hospital, he kept petitioner on
the payroll, reported him as an employee of
the hacienda for social security purposes, and paid his
salaries and benefits with the mandated deductions
therefrom until the end of December, 1982. It was only in
January, 1983 when he became convinced that petitioner
would no longer return to work that he considered the latter
to have abandoned his work and, for this reason, no longer
listed him as an employee. According to private respondent,
whatever amount of money was given to petitioner from that
time until
April, 1984 was in the nature of a pension or an allowance
or mere gratuitous doles from a father to a son, and not
salaries as, in fact, none of the usual deductions were
made therefrom. It was only in April, 1984 that private
respondent completely stopped giving said pension or
allowance when he was angered by what he heard
petitioner had been saying about sending him to jail.
Private respondent capitalizes on the testimony of one
Manolo Gomez taken on oral deposition regarding
petitioner's alleged statement to him, "(h)e quemado los
(p)ue(n)tes de Manucao" ("I have burned my bridges with
Manucao") as expressive of petitioner's intention to
abandon his job. In addition to insinuations of sinister
motives on the part of petitioner in working at the farm and
P A L E ( C a n n o n 1 ) | 12
thereafter abandoning the job upon accomplishment of his
objectives, private respondent takes the novel position that
the agreement to support his son after the latter abandoned
the administration of the farm legally converts the initial
abandonment to implied voluntary resignation. 25
As earlier mentioned, petitioner ripostes that private
respondent undoubtedly knew about petitioner's illness and
even paid for his hospital and other medical bills. The
assertion regarding abandonment of work, petitioner
argues, is further belied by his continued performance of
various services related to the operations of the farm from
May to the last quarter of 1983, his persistent inquiries from
his father's accountant and legal adviser about the reason
why his pension or allowance was discontinued since April,
1984, and his indication of having recovered and his
willingness and capability to resume his work at the farm as
expressed in a letter dated September 14, 1984.  With 26
these, petitioner contends that it is immaterial how the
monthly pecuniary amounts are designated, whether as
salary, pension or allowance, with or without deductions, as
he was entitled thereto in view of his continued service as
farm administrator. 27
To stress what was earlier mentioned, in order that a finding
of abandonment may justly be made there must be a
concurrence of two elements, viz.: (1) the failure to report
for work or absence without valid or justifiable reason, and
(2) a clear intention to sever the employer-employee
relationship, with the second element as the more
determinative factor and being manifested by some overt
acts. Such intent we find dismally wanting in this case.
It will be recalled that private respondent himself admitted
being unsure of his son's plans of returning to work. The
absence of petitioner from work since mid-1982, prolonged
though it may have been, was not without valid causes of
which private respondent had full knowledge. As to what
convinced or led him to believe that petitioner was no
longer returning to work, private respondent neither
explains nor substantiates by any reasonable basis how he
arrived at such a conclusion.
Moreover, private respondent's claim of abandonment
cannot be given credence as even after January, 1983,
when private respondent supposedly "became convinced"
that petitioner would no longer work at the farm, the latter
continued to perform services directly required by his
position as farm administrator. These are duly and
correspondingly evidenced by such acts as picking up
some farm machinery/equipment from G.A. Machineries,
Inc.,  claiming and paying for additional farm equipment
28
and machinery shipped by said firm from Manila to Bacolod
through Zip Forwarders,  getting the payment of the
29
additional cash advances for molasses for crop year 1983-
1984 from Agrotex Commodities, Inc.,  and remitting to
30
private respondent through
Atty. Sumbingco the sums collected along with receipts for
medicine and oil.31
It will be observed that all of these chores, which petitioner
took care of, relate to the normal activities and operations of
the farm. True, it is a father's prerogative to request or even
command his child to run errands for him. In the present
case, however, considering the nature of these
transactions, as well as the property values and monetary
sums involved, it is unlikely that private respondent would
leave the matter to just anyone. Prudence dictates that
these matters be handled by someone who can be trusted
or at least be held accountable therefor, and who is familiar
with the terms, specifications and other details relative
thereto, such as an employee. If indeed petitioner had
abandoned his job or was considered to have done so by
private respondent, it would be awkward, or even out of
place, to expect or to oblige petitioner to concern himself

with matters relating to or expected of him with respect to
what would then be his past and terminated employment. It
is hard to imagine what further authority an employer can
have over a dismissed employee so as to compel him to
continue to perform work-related tasks:
It is also significant that the special power of
attorney  executed
32
by private respondent on June 26, 1980 in favor of
petitioner, specifically stating —
xxx xxx xxx
That I, JON de YSASI, Filipino, of legal
age, married, and a resident of Hda.
Manucao, hereinafter called and referred
to as PRINCIPAL, am a sugarcane
planter, BISCOM Mill District, and a duly
accredited planter-member of the
BINALBAGAN-ISABELA PLANTERS'
ASSOCIATION, INC.;
That as such planter-member of BIPA, I
have check/checks with BIPA representing
payment for all checks and papers to
which I am entitled to (sic) as such planter-
member;
That I have named, appointed and
constituted as by these presents
I HEREBY NAME, APPOINT AND
CONSTITUTE as my true and lawful
ATTORNEY-IN-FACT
JON de YSASI III
whose specimen signature is hereunder
affixed, TO GET FOR ME and in my
name, place and stead, my check/checks
aforementioned, said ATTORNEY-IN-
FACT being herein given the power and
authority to sign for me and in my name,
place and stead, the receipt or receipts or
payroll for the said check/checks.
PROVIDED, HOWEVER, that my said
ATTORNEY-IN-FACT cannot cash the
said check/checks, but to turn the same
over to me for my proper disposition.
That I HEREBY RATIFY AND CONFIRM
the acts of my
Attorney-in-Fact in getting the said
check/checks and signing the receipts
therefor.
That I further request that my said
check/checks be made a "CROSSED
CHECK".
xxx xxx xxx
remained in force even after petitioner's employment was
supposed to have been terminated by reason of
abandonment. Furthermore, petitioner's numerous requests
for an explanation regarding the stoppage of his salaries
and benefits,  the issuance of withholding tax reports,  as
33 34
well as correspondence reporting his full recovery and
readiness to go back to work,  and, specifically, his filing of
35
the complaint for illegal dismissal are hardly the acts of one
who has abandoned his work.
We are likewise not impressed by the deposition of Manolo
Gomez, as witness for private respondent, ascribing
P A L E ( C a n n o n 1 ) | 13
statements to petitioner supposedly indicative of the latter's
intention to abandon his work. We perceive the irregularity
in the taking of such deposition without the presence of
petitioner's counsel, and the failure of private respondent to
serve reasonably advance notice of its taking to said
counsel, thereby foreclosing his opportunity to
cross-examine the deponent. Private respondent also failed
to serve notice thereof on the Regional Arbitration Branch
No. VI of the NLRC, as certified to by Administrative
Assistant Celestina G. Ovejera of said office.  Fair play
36
dictates that at such an important stage of the proceedings,
which involves the taking of testimony, both parties must be
afforded equal opportunity to examine and cross-examine a
witness.
As to the monthly monetary amounts given to petitioner,
whether denominated as salary, pension, allowance or ex
gratia handout, there is no question as to petitioner's
entitlement thereto inasmuch as he continued to perform
services in his capacity as farm administrator. The change
in description of said amounts contained in the pay slips or
in the receipts prepared by private respondent cannot be
deemed to be determinative of petitioner's employment
status in view of the peculiar circumstances above set out.
Besides, if such amounts were truly in the nature of
allowances given by a parent out of concern for his child's
welfare, it is rather unusual that receipts therefor  should be
37
necessary and required as if they were ordinary business
expenditures.
Neither can we subscribe to private respondent's theory
that petitioner's alleged abandonment was converted into
an implied voluntary resignation on account of the father's
agreement to support his son after the latter abandoned his
work. As we have determined that no abandonment took
place in this case, the monthly sums received by petitioner,
regardless of designation, were in consideration for
services rendered emanating from an employer-employee
relationship and were not of a character that can qualify
them as mere civil support given out of parental duty and
solicitude. We are also hard put to imagine how
abandonment can be impliedly converted into a voluntary
resignation without any positive act on the part of the
employee conveying a desire to terminate his employment.
The very concept of resignation as a ground for termination
by the employee of his employment  does not square with
38
the elements constitutive of abandonment.
On procedural considerations, petitioner posits that there
was a violation by private respondent of the due process
requirements under the Labor Code for want of notice and
hearing.  Private respondent, in opposition, argues that
39
Section 2, Rule XIV, Book V of the Omnibus Rules
Implementing the Labor Code applies only to cases where
the employer seeks to terminate the services of an
employee on any of the grounds enumerated under Article
282 of the Labor Code, but not to the situation obtaining in
this case where private respondent did not dismiss
petitioner on any ground since it was petitioner who
allegedly abandoned his employment. 40
The due process requirements of notice and hearing
applicable to labor cases are set out in Rule XIV, Book V of
the Omnibus Rules Implementing the Labor Code in this
wise:
Sec. 2. Notice of Dismissal. — Any
employer who seeks to dismiss a worker
shall furnish him a written notice stating
the particular acts or omission(s)
constituting the grounds for his dismissal.
In cases of abandonment of work, notice
shall be served at the worker's last known
address.
 P A L E ( C a n n o n 1 ) | 14

xxx xxx xxx While we are in full

agreement with the
Sec. 5. Answer and hearing. — The respondent as to his
worker may answer the allegations as defense of implied
stated against him in the notice of resignation and/or
dismissal within a reasonable period from abandonment, records
receipt of such notice. The employer shall somehow showed that he
afford the worker ample opportunity to be failed to notify the
heard and to defend himself with the Department of
assistance of his representative, if he so Labor and Employment
desires. for his sons'
(sic)/complainants' (sic)
aba(n)donment as
Sec. 6. Decision to dismiss. — The required by BP 130. And
employer shall immediately notify a worker for this failure, the other
in writing of a decision to dismiss him requisite for a valid
stating clearly the reasons therefor. termination by an
employer was not
Sec. 7. Right to contest dismissal. — Any complied with. This
decision taken by the employer shall be however, would not work
without prejudice to the right of the worker to invalidate the
to contest the validity or legality of his otherwise (sic) existence
dismissal by filing a complaint with the of a valid cause for
Regional Branch of the Commission. dismissal. The validity of
the cause of dismissal
xxx xxx xxx must be upheld at all
times provided however
Sec. 11. Report of dismissal. — The that sanctions must be
employer shall submit a monthly report to imposed on the
the Regional Office having jurisdiction over respondent for his failure
the place of work at all dismissals effected to observe the notice on
by him during the month, specifying due process requirement.
therein the names of the dismissed (Wenphil Corp. v. NLRC,
workers, the reasons for their dismissal, G.R. No. 80587).
the dates of commencement and (Decision Labor Arbiter,
termination of employment, the positions at 11-12, Annex "C"
last held by them and such other Petition), . . .
information as may be required by the
Ministry for policy guidance and statistical This is thus a very different case
purposes. from Wenphil Corporation v. NLRC, 170
SCRA 69. In Wenphil, the rule applied to
Private respondent's argument is without merit as there can the facts is: once an employee is
be no question that petitioner was denied his right to due dismissed for just cause, he must not be
process since he was never given any notice about his rewarded
impending dismissal and the grounds therefor, much less a re-employment and backwages for failure
chance to be heard. Even as private respondent controverts of his employer to observe procedural due
the applicability of the mandatory twin requirements of process. The public policy behind this is
procedural due process in this particular case, he in effect that, it may encourage the employee to do
admits that no notice was served by him on petitioner. This even worse and render a mockery of the
fact is corroborated by the certification issued on rules of discipline required to be observed.
September 5, 1984 by the Regional Director for Region VI However, the employer must be penalized
of the Department of Labor that no notice of termination of for his infraction of due process. In the
the employment of petitioner was submitted thereto. 41
present case, however, not only was
petitioner dismissed without due process,
but his dismissal is without just cause.
Granting arguendo that there was abandonment in this Petitioner did not abandon his employment
case, it nonetheless cannot be denied that notice still had to because he has a justifiable excuse. 43

be served upon the employee sought to be dismissed, as

the second sentence of Section 2 of the pertinent
implementing rules explicitly requires service thereof at the
employee's last known address, by way of substantial
compliance. While it is conceded that it is the employer's
prerogative to terminate an employee, especially when
there is just cause therefor, the requirements of due
process cannot be lightly taken. The law does not
countenance the arbitrary exercise of such a power or
prerogative when it has the effect of undermining the
fundamental guarantee of security of tenure in favor of the
employee. 42
On the executive labor arbiter's misplaced reliance on
the Wenphil case, the Solicitor General rejoins as follows:
The Labor Arbiter held thus:
II. Petitioner avers that the executive labor arbiter erred in
disregarding the mandatory provisions of Article 279 of the
Labor Code which entitles an illegally dismissed employee
to reinstatement and back wages and, instead, affirmed the
imposition of the penalty of P5,000.00 on private
respondent for violation of the due process requirements.
Private respondent, for his part, maintains that there was
error in imposing the fine because that penalty
contemplates the failure to submit the employer's report on
dismissed employees to the DOLE regional office, as
required under Section 5 (now, Section 11), Rule XIV of the
implementing rules, and not the failure to serve notice upon
the employee sought to be dismissed by the employer.
Both the Constitution and the Labor Code enunciate in no
uncertain terms the right of every worker to security of
tenure.  To give teeth to this constitutional and statutory
44

mandates, the Labor Code spells out the relief available to
an employee in case of its denial:
Art. 279. Security of Tenure. — In cases of
regular employment, the employer shall
not terminate the services of an employee
except for a just cause or when authorized
by this Title. An employee who is unjustly
dismissed from work shall be entitled to
reinstatement without loss of seniority
rights and other privileges and to his full
backwages, inclusive of allowances, and
to his other benefits of their monetary
equivalent computed from the time his
compensation was withheld from him up to
the time of actual reinstatement.
Clearly, therefore, an employee is entitled to reinstatement
with full back wages in the absence of just cause for
dismissal.  The Court, however, on numerous occasions
45
has tempered the rigid application of said provision of the
Labor Code, recognizing that in some cases certain events
may have transpired as would militate against the
practicability of granting the relief thereunder provided, and
declares that where there are strained relations between
the employer and the employee, payment of back wages
and severance pay may be awarded instead of
reinstatement,  and more particularly when managerial
46
employees are concerned.  Thus, where reinstatement is
47
no longer possible, it is therefore appropriate that the
dismissed employee be given his fair and just share of what
the law accords him. 48
We note with favor and give our imprimatur to the Solicitor
General's ratiocination, to wit:
As a general rule, an employee who is
unjustly dismissed from work shall be
entitled to reinstatement without loss of
seniority rights and to his backwages
computed from the time his compensation
was withheld up to the time of his
reinstatement. (Morales vs. NLRC, 188
SCRA 295). But in Pacific Cement
Company, Inc.  vs.  NLRC, 173 SCRA 192,
this Honorable Court held that when it
comes to reinstatement, differences
should be made between managers and
the ordinary workingmen. The Court
concluded that a company which no longer
trusts its managers cannot operate freely
in a competitive and profitable manner.
The NLRC should know the difference
between managers and ordinary
workingmen. It cannot imprudently order
the reinstatement of managers with the
same ease and liberality as that of rank
and file workers who had been terminated.
Similarly, a reinstatement may not be
appropriate or feasible in case of antipathy
or antagonism between the parties
(Morales, vs. NLRC, 188 SCRA 295).
In the present case, it is submitted that
petitioner should not be reinstated as farm
administrator of Hacienda Manucao. The
present relationship of petitioner and
private respondent (is) so strained that a
harmonious and peaceful employee-
employer relationship is hardly possible.49
III. Finally, petitioner insists on an award of moral damages,
arguing that his dismissal from employment was attended
by bad faith or fraud, or constituted oppression, or was
contrary to morals, good customs or public policy. He
P A L E ( C a n n o n 1 ) | 15
further prays for exemplary damages to serve as a
deterrent against similar acts of unjust dismissal by other
employers.
Moral damages, under Article 2217 of the Civil Code, may
be awarded to compensate one for diverse injuries such as
mental anguish, besmirched reputation, wounded feelings,
and social humiliation, provided that such injuries spring
from a wrongful act or omission of the defendant which was
the proximate cause thereof.  Exemplary damages, under
50
Article 2229, are imposed by way of example or correction
for the public good, in addition to moral, temperate,
liquidated or compensatory damages. They are not
recoverable as a matter of right, it being left to the court to
decide whether or not they should be adjudicated. 51
We are well aware of the Court's rulings in a number of
cases in the past allowing recovery of moral damages
where the dismissal of the employee was attended by bad
faith or fraud, or constituted an act oppressive to labor, or
was done in a manner contrary to morals, good customs or
public policy,  and of exemplary damages if the dismissal
52
was effected in a wanton, oppressive or malevolent
manner.  We do not feel, however, that an award of the
53
damages prayed for in this petition would be proper even if,
seemingly, the facts of the case justify their allowance. In
the aforestated cases of illegal dismissal where moral and
exemplary damages were awarded, the dismissed
employees were genuinely without fault and were
undoubtedly victims of the erring employers' capricious
exercise of power.
In the present case, we find that both petitioner and private
respondent can equally be faulted for fanning the flames
which gave rise to and ultimately aggravated this
controversy, instead of sincerely negotiating a peaceful
settlement of their disparate claims. The records reveal how
their actuations seethed with mutual antagonism and the
undeniable enmity between them negates the likelihood
that either of them acted in good faith. It is apparent that
each one has a cause for damages against the other. For
this reason, we hold that no moral or exemplary damages
can rightfully be awarded to petitioner.
On this score, we are once again persuaded by the validity
of the following recommendation of the Solicitor General:
The Labor Arbiter's decision in RAB Case
No. 0452-84 should be modified. There
was no voluntary abandonment in this
case because petitioner has a justifiable
excuse for his absence, or such absence
does not warrant outright dismissal without
notice and hearing. Private respondent,
therefore, is guilty of illegal dismissal. He
should be ordered to pay backwages for a
period not exceeding three years from
date of dismissal. And in lieu of
reinstatement, petitioner may be paid
separation pay equivalent to one (1)
month('s) salary for every year of service,
a fraction of six months being considered
as one (1) year in accordance with recent
jurisprudence (Tan, Jr. vs. NLRC, 183
SCRA 651). But all claims for damages
should be dismissed, for both parties are
equally at fault. 54
The conduct of the respective counsel of the parties, as
revealed by the records, sorely disappoints the Court and
invites reproof. Both counsel may well be reminded that
their ethical duty as lawyers to represent their clients with
zeal  goes beyond merely presenting their clients'
55
respective causes in court. It is just as much their
responsibility, if not more importantly, to exert all

reasonable efforts to smooth over legal conflicts, preferably
out of court and especially in consideration of the direct and
immediate consanguineous ties between their clients. Once
again, we reiterate that the useful function of a lawyer is not
only to conduct litigation but to avoid it whenever possible
by advising settlement or withholding suit. He is often called
upon less for dramatic forensic exploits than for wise
counsel in every phase of life. He should be a mediator for
concord and a conciliator for compromise, rather than a
virtuoso of technicality in the conduct of litigation.
56
Rule 1.04 of the Code of Professional Responsibility
explicitly provides that "(a) lawyer shall encourage his client
to avoid, end or settle the controversy if it will admit of a fair
settlement." On this point, we find that both counsel herein
fell short of what was expected of them, despite their
avowed duties as officers of the court. The records do not
show that they took pains to initiate steps geared toward
effecting a rapprochement between their clients. On the
contrary, their acerbic and protracted exchanges could not
but have exacerbated the situation even as they may have
found favor in the equally hostile eyes of their respective
clients.
In the same manner, we find that the labor arbiter who
handled this regrettable case has been less than faithful to
the letter and spirit of the Labor Code mandating that a
labor arbiter "shall exert all efforts towards the amicable
settlement of a labor dispute within his jurisdiction."  If he
57
ever did so, or at least entertained the thought, the copious
records of the proceedings in this controversy are barren of
any reflection of the same.
One final word. This is one decision we do not particularly
relish having been obliged to make. The task of resolving
cases involving disputes among members of a family
leaves a bad taste in the mouth and an aversion in the
mind, for no truly meaningful and enduring resolution is
really achieved in such situations. While we are convinced
that we have adjudicated the legal issues herein squarely
on the bases of law and jurisprudence, sans sentimentality,
we are saddened by the thought that we may have failed to
bring about the reconciliation of the father and son who
figured as parties to this dispute, and that our adherence
here to law and duty may unwittingly contribute to the
breaking, instead of the strengthening, of familial bonds. In
fine, neither of the parties herein actually emerges
victorious. It is the Court's earnest hope, therefore, that with
the impartial exposition and extended explanation of their
respective rights in this decision, the parties may eventually
see their way clear to an ultimate resolution of their
differences on more convivial terms.
WHEREFORE, the decision of respondent National Labor
Relations Commission is hereby SET ASIDE. Private
respondent is ORDERED to pay petitioner back wages for a
period not exceeding three (3) years, without qualification or
deduction,  and, in lieu of reinstatement, separation pay
58
equivalent to one (1) month for every year of service, a
fraction of six (6) months being considered as one (1) whole
year.
SO ORDERED.
A.C. No. 2797             October 4, 2002
ROSAURA P. CORDON, complainant,
vs.
JESUS BALICANTA, respondent.
RESOLUTION
PER CURIAM:
P A L E ( C a n n o n 1 ) | 16
On August 21, 1985, herein complainant Rosaura Cordon
filed with this Court a complaint for disbarment, docketed as
Administrative Case No. 2797, against Atty. Jesus
Balicanta. After respondent’s comment to the complaint and
complainant’s reply thereto, this Court, on March 29, 1995
referred the matter to the Integrated Bar of the Philippines
(IBP, for brevity) for investigation, report and
recommendation within 90 days from notice. Commissioner
George Briones of the IBP Commission on Bar Discipline
was initially tasked to investigate the case. Commissioner
Briones was later on replaced by Commissioner Renato
Cunanan. Complainant filed a supplemental complaint
which was duly admitted and, as agreed upon, the parties
filed their respective position papers.
Based on her complaint, supplemental complaint, reply and
position paper, the complainant alleged the following facts:
When her husband Felixberto C. Jaldon died, herein
complainant Rosaura Cordon and her daughter Rosemarie
inherited the properties left by the said decedent. All in all,
complainant and her daughter inherited 21 parcels of land
located in Zamboanga City. The lawyer who helped her
settle the estate of her late husband was respondent Jesus
Balicanta.
Sometime in the early part of 1981, respondent enticed
complainant and her daughter to organize a corporation
that would develop the said real properties into a high-scale
commercial complex with a beautiful penthouse for
complainant. Relying on these apparently sincere
proposals, complainant and her daughter assigned 19
parcels of land to Rosaura Enterprises, Incorporated, a
newly-formed and duly registered corporation in which they
assumed majority ownership. The subject parcels of land
were then registered in the name of the corporation.
Thereafter, respondent single-handedly ran the affairs of
the corporation in his capacity as Chairman of the Board,
President, General Manager and Treasurer. The
respondent also made complainant sign a document which
turned out to be a voting trust agreement. Respondent
likewise succeeded in making complainant sign a special
power of attorney to sell and mortgage some of the parcels
of land she inherited from her deceased husband. She later
discovered that respondent transferred the titles of the
properties to a certain Tion Suy Ong who became the new
registered owner thereof. Respondent never accounted for
the proceeds of said transfers.
In 1981, respondent, using a spurious board resolution,
contracted a loan from the Land Bank of the Philippines
(LBP, for brevity) in the amount of Two Million Two Hundred
Twenty Pesos (P2,220,000) using as collateral 9 of the real
properties that the complainant and her daughter
contributed to the corporation. The respondent ostensibly
intended to use the money to construct the Baliwasan
Commercial Center (BCC, for brevity). Complainant later on
found out that the structure was made of poor materials
such as sawali, coco lumber and bamboo which could not
have cost the corporation anything close to the amount of
the loan secured.
For four years from the time the debt was contracted,
respondent failed to pay even a single installment. As a
result, the LBP, in a letter dated May 22, 1985, informed
respondent that the past due amortizations and interest had
already accumulated to Seven Hundred Twenty-nine
Thousand Five Hundred Three Pesos and Twenty-five
Centavos (P729,503.25). The LBP made a demand on
respondent for payment for the tenth time. Meanwhile,
when the BCC commenced its operations, respondent
started to earn revenues from the rentals of BCC’s tenants.
On October 28, 1987, the LBP foreclosed on the 9
mortgaged properties due to non-payment of the loan.

Respondent did not exert any effort to redeem the
foreclosed properties. Worse, he sold the corporation’s right
to redeem the mortgaged properties to a certain Hadji
Mahmud Jammang through a fake board resolution dated
January 14, 1989 which clothed himself with the authority to
do so. Complainant and her daughter, the majority
stockholders, were never informed of the alleged meeting
held on that date. Again, respondent never accounted for
the proceeds of the sale of the right to redeem. Respondent
also sold to Jammang a parcel of land belonging to
complainant and her daughter which was contiguous to the
foreclosed properties and evidenced by Transfer Certificate
of Title No. 62807. He never accounted for the proceeds of
the sale.
Sometime in 1983, complainant’s daughter, Rosemarie,
discovered that their ancestral home had been demolished
and that her mother, herein complainant, was being
detained in a small nipa shack in a place called Culianan.
Through the help of Atty. Linda Lim, Rosemarie was able to
locate her mother. Rosemarie later learned that respondent
took complainant away from her house on the pretext that
said ancestral home was going to be remodeled and
painted. But respondent demolished the ancestral home
and sold the lot to Tion Suy Ong, using another spurious
board resolution designated as Board Resolution No. 1,
series of 1992. The resolution contained the minutes of an
alleged organizational meeting of the directors of the
corporation and was signed by Alexander Wee, Angel
Fernando, Erwin Fernando and Gabriel Solivar.
Complainant and her daughter did not know how these
persons became stockholders and directors of the
corporation. Respondent again did not account for the
proceeds of the sale.
Complainant and her daughter made several demands on
respondent for the delivery of the real properties they
allegedly assigned to the corporation, for an accounting of
the proceeds of the LBP loan and as well as the properties
sold, and for the rentals earned by BCC. But the demands
remained unheeded. Hence, complainant and her daughter,
in a letter dated June 4, 1985, terminated the services of
respondent as their lawyer and repeated their demands for
accounting and turn-over of the corporate funds, and the
return of the 19 titles that respondent transferred to the
corporation. They also threatened him with legal action in a
letter dated August 3, 1985.
Soon after, complainant found out from the Securities and
Exchange Commission (SEC, for brevity) that Rosaura
Enterprises, Inc., due to respondent’s refusal and neglect,
failed to submit the corporation’s annual financial
statements for 1981, 1982 and 1983; SEC General
Information Sheets for 1982, 1983 and 1984; Minutes of
Annual Meetings for 1982, 1983 and 1984; and Minutes of
Annual Meetings of Directors for 1982, 1983 and 1984.
Complainant also discovered that respondent collected
rental payments from the tenants of BCC and issued
handwritten receipts which he signed, not as an officer of
the corporation but as the attorney-at-law of complainant.
Respondent also used the tennis court of BCC to dry his
palay and did not keep the buildings in a satisfactory state,
so much so that the divisions were losing plywood and
other materials to thieves.
Complainant likewise accused respondent of circulating
rumors among her friends and relatives that she had
become insane to prevent them from believing whatever
complainant said. According to complainant, respondent
proposed that she legally separate from her present
husband so that the latter would not inherit from her and
that respondent be adopted as her son.
P A L E ( C a n n o n 1 ) | 17
For his defense, respondent, in his comment and position
paper, denied employing deceit and machination in
convincing complainant and her daughter to assign their
real properties to the corporation; that they freely and
voluntary executed the deeds of assignment and the voting
trust agreement that they signed; that he did not single-
handedly manage the corporation as evidenced by
certifications of the officers and directors of the corporation;
that he did not use spurious board resolutions authorizing
him to contract a loan or sell the properties assigned by the
complainant and her daughter; that complainant and her
daughter should be the ones who should render an
accounting of the records and revenues inasmuch as, since
1984 up to the present, the part-time corporate book-
keeper, with the connivance of the complainant and her
daughter, had custody of the corporate records; that
complainant and her daughter sabotaged the operation of
BCC when they illegally took control of it in 1986; that he
never pocketed any of the proceeds of the properties
contributed by the complainant and her daughter; that the
demolition of the ancestral home followed legal procedures;
that complainant was never detained in Culianan but she
freely and voluntarily lived with the family of P03 Joel
Constantino as evidenced by complainant’s own letter
denying she was kidnapped; and that the instant
disbarment case should be dismissed for being premature,
considering the pendency of cases before the SEC and the
Regional Trial Court of Zamboanga involving him and
complainant.
Based on the pleadings and position papers submitted by
the parties, Commissioner Renato Cunanan, in his
report1 dated July 1, 1999, recommended respondent’s
disbarment based on the following findings:
"A. The complainant, Rosaura Jaldon-Cordon and
her daughter, Rosemarie were stockholders of a
corporation, together with respondent, named
Rosaura Enterprises, Inc.
"Per the Articles of Incorporation marked as Annex
‘A’ of Complainant’s Position Paper, complainant’s
subscription consists of 55% of the outstanding
capital stock while her daughter’s consists of 18%,
giving them a total of 73%. Respondent’s holdings
consist of 24% while three other incorporators,
Rosauro L. Alvarez, Vicente T. Mañalac and
Darhan S. Graciano each held 1% of the capital
stock of the corporation.
"B. On April 5, 1981, complainant and her daughter
Rosemarie Jaldon executed two Deeds of Transfer
and Assignment conveying and transferring to the
corporation 19 parcels of land in exchange for
shares of stock in the corporation.
"x x x           x x x           x x x
"C. Both Deeds of Assignment particularly page 3
thereof indicate that respondent accepted said
assignment of properties and titles in behalf of the
corporation as Treasurer. The deeds were signed
on April 5, 1981.
"x x x           x x x           x x x
"Together, therefore, complainant and her daughter
owned 1,711 shares of the 1,750 shares
comprising the authorized capital stock of the
corporation of 97% thereof.
"No increase in capitalization was applied for by
the corporation.

"F. Respondent claims in his Comment, his Answer
and his Position Paper that on April 4, 1981 he was
elected as Chairman and Director and on April 5,
1981 he was elected President of the corporation.
Respondent’s own Annexes marked as ‘G’ and ‘G-
1’ of his Comment show that on April 4, 1981 he
was not only elected as Chairman and Director as
he claims but as ‘Director, Board Chairman and
President.’ The purported minutes was only signed
by respondent and an acting Secretary by the
name of Vicente Mañalac.
"Said Annex does not show who was elected
Treasurer.
"Respondent’s Annex ‘H’ and ‘H-1’ shows that in
the alleged organizational meeting of the directors
on April 5, 1981 a certain Farnacio Bucoy was
elected Treasurer. Bucoy’s name does not appear
as an incorporator nor a stockholder anywhere in
the documents submitted.
"The purported minutes of the organizational
meeting of the directors was signed only by
respondent Balicanta and a Secretary named
Verisimo Martin.
"G. Since respondent was elected as Director,
Chairman and President on April 4, 1981 as
respondent’s own Annexes ‘G’ to ‘G-1’ would
show, then complainant’s claim that respondent
was likewise acting as Treasurer of two
corporations bear truth and credence as
respondent signed and accepted the titles to 19
parcels of land ceded by the complainant and her
daughter, as Treasurer on April 5, 1981 after he
was already purportedly elected as Chairman,
President and Director.
"H. Respondent misleads the Commission into
believing that all the directors signed the minutes
marked as Exhibit ‘H’ to ‘H-1’ by stating that the
same was ‘duly signed by all the Board of
Directors’ when the document itself shows that only
he and one Verisimo Martin signed the same.
"He also claims that ‘all the stockholders signed’
the minutes of organizational meeting marked as
Annexes ‘G’ and ‘G-1’ of his Comment yet the
same shows that only the acting Chairman and
acting Secretary signed.
"I. Respondent claims that the Board or its
representative was authorized by the stockholders
comprising 2/3 of the outstanding capital stock, as
required by law, to mortgage the parcels of land
belonging to the corporation, which were all
assigned to the corporation by complainant and her
daughter, by virtue of Annex ‘I’ and ‘I-1’: attached
to his Comment.
"The subject attachment however reveals that only
the following persons signed their conformity to the
said resolution: respondent Balicanta who owned
109 shares, Vicente Mañalac (1 share), Daihan
Graciano (1 share).
"Complainants who collectively held a total
of 1,711 shares out of the 1,750 outstanding capital
stock of the corporation were not represented in
the purported stockholders’ meeting authorizing the
mortgage of the subject properties.
P A L E ( C a n n o n 1 ) | 18
"The 2/3 vote required by law was therefore not
complied with yet respondent proceeded to
mortgage the subject 9 parcels of land by the
corporation.
"J. Respondent further relies on Annex ‘J’ of his
Comment, purportedly the minutes of a special
meeting of the Board of Directors authorizing him
to obtain a loan and mortgage the properties of the
corporation dated August 29, 1981. This claim is
baseless. The required ratification of 2/3 by the
stockholders of records was not met. Again,
respondent attempts to mislead the Commission
and Court.
"K. Further, the constitution of the Board is
dubious. The alleged minutes of the organizational
meeting of the stockholders electing the members
of the Board, have not been duly signed by the
stockholders as shown in respondent’s annex ‘G’
which was purportedly the organizational meeting
of the stockholders.
"L. Also, Annex ‘J’ of respondent’s Comment which
purportedly authorized him to obtain a loan and to
mortgage the 9 parcels of land was only signed by
himself and a secretary.
"M. In said Annex 'J' of respondent’s Comment he
stated that complainant Rosaura Cordon was on
leave by virtue of a voting trust agreement
allegedly executed by complainant ‘in his favor
covering all her shares of stock.’ The claim is
baseless. The voting trust referred to by
respondent (annex ‘D’ of his Comment), even if it
were assumed to be valid, covered only 266
shares of complainants yet she owned a total of
1,039 shares after she and her daughter ceded in
favor of the corporation 19 parcels of land.
"Being a former lawyer to complainant, respondent
should have ensured that her interest was
safeguarded. Yet, complainant was apparently and
deliberately left our (sic) on the pretext that, she
had executed a voting trust agreement in favor of
respondent.
"It is suspicious that complainant was made to sign
a voting trust agreement on 21 August 1981 and
immediately thereafter, the resolutions authorizing
respondent to obtain a loan and to mortgage the 9
parcels of land were passed and approved.
"N. It is also highly irregular for respondent who is
a lawyer, to allow a situation to happen where, with
the exclusion of complainant as director the result
was that there remained only 4 members of the
Board,.
"O. Respondent’s own pleadings submitted to the
Commission contradict each other.
"1. For instance, while in his Comment
respondent DENIES that he employed
deceit and machination in convincing the
complainant and her daughter to sign the
articles of incorporation of Rosaura
Enterprises and in ceding to the
corporation 19 parcels of land in
Zamboanga City, because ‘they freely,
intelligently and voluntarily signed’ the
same, yet, in his Position Paper,
respondent took another stance.

"In paragraphs 1.1 and 1.2 of his Position
Paper which was submitted 12 years later,
respondent claimed that ‘it was actually
the idea of Atty. Rosaura L. Alvarez’ that a
corporation be put up to incorporate the
estate of the late Felixberto D. Jaldon.
"2. Likewise, respondent claimed that
complainant and her daughter were not
directors, hence they were not notified of
meetings, in paragraph 2-6 (c) of his
Comment he blamed the other
stockholders and directors for the
corporation’s inability to comply with the
Land Bank’s demands saying that they
‘have consistently failed since 1982 to
convene (1.) for the annual stockholders’
meetings and (i.i) for the monthly board
meeting’.
"His own pleadings claim that he had been
the Chairman/President since 1981 to the
present. If (sic) so, it was his duty to
convene the stockholders and the
directors for meetings.
"Respondent appeared able to convene
the stockholders and directors when he
needed to make a loan of p2.2 million;
when he sold the corporation’s right of
redemption over the foreclosed properties
of the corporation to Jammang, when he
sold one parcel of land covered by TCT
62,807 to Jammang in addition to the 9
parcels of land which were foreclosed, and
when he sold the complainant’s ancestral
home covered by TCT No. 72,004.
"It is thus strange why respondent claims
that the corporation could not do anything
to save the corporation’s properties from
being foreclosed because the stockholders
and directors did not convene.
"This assertion of respondent is clearly
evident of dishonest, deceitful and immoral
conduct especially because, in all his acts
constituting conveyances of corporate
property, respondent used minutes of
stockholders’ and directors’ meetings
signed only by him and a secretary or
signed by him and persons who were not
incorporators much less stockholders.
"It is worthy of note that in respondent’s
Exhibits 15, 16, 17 and 18 of his position
paper, there were 7 new stockholders and
complainant appeared to have only 266
shares to her name while her daughter
Rosemarie had no shares at all.
Respondent did not present any proof of
conveyance of shares by complainant and
her daughter.
"It is further worth noting that
complainant’s voting trust (annex ‘D’ of
respondent’s Comment) where she
allegedly entrusted 266 shares to
respondent on August 21, 1981 had only a
validity of 5 years. Thus, she should have
had her entire holdings of 1,283 shares
back in her name in August 1986.
P A L E ( C a n n o n 1 ) | 19
"Respondent’s purported minutes of
stockholders’ meeting (Exhs. ‘15’ and ‘17’)
do not reflect this.
"There was no explanation whatsoever
from respondent on how complainant and
her daughter lost their 97% control holding
in the corporation.
"3. As a further contradiction in
respondent’s pleadings, we note that in
paragraph 2.7.C of his Comment he said
that ‘only recently, this year, 1985, the
complainant and her aforenamed daughter
examined said voluminous supporting
receipts/documents which had previously
been examined by the Land Bank for loan
releases, during which occasion
respondent suggested to them that the
corporation will have to hire a full-time
book-keeper to put in order said
voluminous supporting
receipts/documents, to which they
adversely reacted due to lack of corporate
money to pay for said book-keeper.’ But in
respondent’s Position Paper par. 6.3 he
stated that:
‘Anyway, it is not the respondent but rather
the complainant who should render a
detailed accounting to the corporation of
the corporate records as well as corporate
revenues/income precisely because since
1994 to the present:
‘(a). The corporate part-time book-keeper
Edilberto Benedicto, with the
indispensable connivance and instigation
of the complainant and her daughter,
among others, has custody of the
corporate records, xxx’
"4. In other contradictory stance,
respondent claims in par. 7.3 of his
position paper that ‘complainant and her
daughter sabotaged the BCC operations
of the corporation by illegally taking over
actual control and supervision thereof
sometime in 1986, xxx’
"Yet respondent’s own exhibits in his
position paper particularly Exhibit 15 and
16 where the subject of the foreclosed
properties of the corporation comprising
the Baliwasan Commercial Center (BCC)
was taken up, complainant and her
daughter were not even present nor were
they the subject of the discussion, belying
respondent’s claim that the complainant
and her daughter illegally took actual
control of BCC.
"5. On the matter of the receipts issued by
respondent evidencing payment to him of
rentals by lessees of the corporation,
attached to the complaint as Annexes ‘H’
to ‘H-17’, respondent claims that the
receipts are temporary in nature and that
subsequently regular corporate receipts
were issued. On their face however the
receipts clearly appear to be official
receipts, printed and numbered duly
signed by the respondent bearing his
printed name.

"It is difficult to believe that a lawyer of
respondent’ stature would issue official
receipts to lessees if he only meant to
issue temporary ones.
"6. With regard to respondent’s claim that
the complainant consented to the sale of
her ancestral home, covered by TCT No.
T-72,004 to one Tion Suy Ong for which
he attached as Exhibit 22 to his Position
Paper the minutes of an annual meeting of
the stockholders, it behooves this
Commission why complainant’s signature
had to be accompanied by her thumb
mark. Furthermore, complainant’s
signature appears unstable and shaky.
This Office is thus persuaded to believe
complainant’s allegation in paragraph 3b
of her position paper that since September
1992 up to March 1993 she was being
detained by one PO# (sic) Joel
Constantino and his wife under
instructions from respondent Balicanta.
"This conclusion is supported by a letter
from respondent dated March 1993,
Annex ‘H’ of complainant’s position paper,
where respondent ordered Police Officer
Constantino ‘to allow Atty. Linda Lim and
Rosemarie Jaldon to talk to Tita Rosing.’
"The complainant’s thumb mark together
with her visibly unstable shaky signature
lends credence to her claim that she was
detained in the far flung barrio of Culianan
under instructions of respondent while her
ancestral home was demolished and the
lot sold to one Tion Suy Ong.
"It appears that respondent felt compelled
to over-ensure complainant’s consent by
getting her to affix her thumb mark in
addition to her signature.
"7. Respondent likewise denies that he
also acted as Corporate Secretary in
addition to being the Chairman, President
and Treasurer of the corporation. Yet,
respondent submitted to this commission
documents which are supported to be in
the possession of the Corporate Secretary
such as the stock and transfer book and
minutes of meetings.
"The foregoing findings of this Commission
are virtual smoking guns that prove on no
uncertain terms that respondent, who was
the legal counsel of complainant in the
latter part of the settlement of the estate of
her deceased husband, committed
unlawful, immoral and deceitful conduct
proscribed by Rule 1.01 of the code of
professional responsibility.
"Likewise, respondent clearly committed a
violation of Canon 15 of the same code
which provides that ‘A lawyer should
observe candor fairness and loyalty in all
his dealings and transactions with his
client.’
"Respondent’s acts gravely diminish the
public’s respect for the integrity of the
profession of law for which this
P A L E ( C a n n o n 1 ) | 20
Commission recommends that he be
meted the penalty of disbarment.
"The pendency of the cases at the SEC
and the Regional Trial Court of
Zamboanga filed by complainant against
respondent does not preclude a
determination of respondent’s culpability
as a lawyer.
"This Commission cannot further delay the
resolution of this complaint filed in 1985 by
complainant, and old widow who deserves
to find hope and recover her confidence in
the judicial system.
"The findings of this office, predominantly
based on documents adduced by both
parties lead to only one rather unpalatable
conclusion. That respondent Atty. Jesus F.
Balicanta, in his professional relations with
herein complainant did in fact employ
unlawful, dishonest, and immoral conduct
proscribed in no uncertain terms by Rule
1.01 of the Code of Professional
Responsibility. In addition, respondent’s
actions clearly violated Canon 15 to 16 of
the same Code.
"It is therefore our unpleasant duty to
recommend that respondent, having
committed acts in violation of the Canons
of Professional Responsibility, thereby
causing a great disservice to the
profession, be meted the ultimate sanction
of disbarment."2
On September 30, 1999, while Commissioner Cunanan’s
recommendation for respondent’s disbarment was pending
review before Executive Vice-President and Northern Luzon
Governor Teofilo Pilando, respondent filed a motion
requesting "for a full-blown investigation and for invalidation
of the entire proceedings and/or remedial action under
Section 11, Rule 139-B, Revised Rules of Court," alleging
that he had evidence that Commissioner Cunanan’s report
was drafted by the lawyers of complainant, Attys. Antonio
Cope and Rita Linda Jimeno. He presented two unsigned
anonymous letters allegedly coming from a disgruntled
employee of Attys. Cope and Jimeno. He claimed to have
received these letters in his mailbox.3
Respondent’s motion alleging that Attys. Antonio Cope and
Rita Linda Jimeno drafted Commissioner Cunanan’s report
was accompanied by a complaint praying for the
disbarment of said lawyers including Commissioner
Cunanan. The complaint was docketed as CBD Case No.
99-658. After Attys. Cope and Jimeno and Commissioner
Cunanan filed their answers, a hearing was conducted by
the Investigating Committee of the IBP Board of Governors.
On May 26, 2001, the IBP Board of Governors issued a
resolution4 dismissing for lack of merit the complaint for
disbarment against Attys. Cope and Jimeno and
Commissioner Cunanan. And in Adm. Case No. 2797, the
Board adopted and approved the report and
recommendation of Commissioner Cunanan, and meted
against herein respondent Balicanta the penalty of
suspension from the practice of law for 5 years "for
commission of acts of misconduct and disloyalty by taking
undue and unfair advantage of his legal knowledge as a
lawyer to gain material benefit for himself at the expense of
complainant Rosaura P. Jaldon-Cordon and caused serious
damage to the complainant."5

To support its decision, the Board uncovered respondent’s
fraudulent acts in the very same documents he presented
to exonerate himself. It also took note of respondent’s
contradictory and irreconcilable statements in the pleadings
and position papers he submitted. However, it regarded the
penalty of disbarment as too severe for respondent’s
misdeeds, considering that the same were his first offense. 6
Pursuant to Section 12 (b), Rule 139-B of the Rules of
Court,7 the said resolution in Administrative Case No. 2797
imposing the penalty of suspension for 5 years on
respondent was automatically elevated to this Court for final
action. On the other hand, the dismissal of the complaint for
disbarment against Attys. Cope and Jimeno and
Commissioner Cunanan, docketed as CBD Case No. 99-
658, became final in the absence of any petition for review.
This Court confirms the duly supported findings of the IBP
Board that respondent committed condemnable acts of
deceit against his client. The fraudulent acts he carried out
against his client followed a well thought of plan to
misappropriate the corporate properties and funds
entrusted to him. At the very outset, he embarked on his
devious scheme by making himself the President,
Chairman of the Board, Director and Treasurer of the
corporation, although he knew he was prohibited from
assuming the position of President and Treasurer at the
same time.8 As Treasurer, he accepted in behalf of the
corporation the 19 titles that complainant and her daughter
co-owned. The other treasurer appointed, Farnacio Bucoy,
did not appear to be a stockholder or director in the
corporate records. The minutes of the meetings supposedly
electing him and Bucoy as officers of the corporation
actually bore the signatures of respondent and the
secretary only, contrary to his claim that they were signed
by the directors and stockholders.
He likewise misled the IBP investigating commission in
claiming that the mortgage of 9 of the properties of the
corporation previously belonging to complainant and her
daughter was ratified by the stockholders owning two-thirds
or 67% of the outstanding capital stock when in fact only
three stockholders owning 111 out of 1,750 outstanding
shares or 6.3% assented thereto. The alleged authorization
granting him the power to contract the LBP loan for Two
Million Two Hundred Twenty Pesos (P2,220,000) was also
not approved by the required minimum of two-thirds of the
outstanding capital stock despite respondent’s claim to the
contrary. In all these transactions, complainant and her
daughter who both owned 1,711 out of the 1,750
outstanding shares of the corporation or 97.7% never had
any participation. Neither were they informed thereof.
Clearly, there was no quorum for a valid meeting for the
discussion and approval of these transactions.
Respondent cannot take refuge in the contested voting trust
agreement supposedly executed by complainant and her
daughter for the reason that it authorized respondent to
represent complainant for only 266 shares.
Aside from the dishonest transactions he entered into under
the cloak of sham resolutions, he failed to explain several
discrepancies in his version of the facts. We hereby
reiterate some of these statements noted by Commissioner
Cunanan in his findings.
First, respondent blamed the directors and the stockholders
who failed to convene for the required annual meetings
since 1982. However, respondent appeared able to
convene the stockholders and directors when he contracted
the LBP debt, when he sold to Jammang the corporation’s
right of redemption over the foreclosed properties of the
corporation, when he sold one parcel of land covered by
P A L E ( C a n n o n 1 ) | 21
TCT No. 62807 to Jammang, when he mortgaged the 9
parcels of land to LBP which later foreclosed on said
mortgage, and when he sold the complainant’s ancestral
home covered by TCT No. 72004.
Second, the factual findings of the investigating
commission, affirmed by the IBP Board, disclosed that
complainant and her daughter own 1,711 out of 1,750
shares of the outstanding capital stock of the corporation,
based on the Articles of Incorporation and deeds of transfer
of the properties. But respondent’s evidence showed that
complainant had only 266 shares of stock in the corporation
while her daughter had none, notwithstanding the fact that
there was nothing to indicate that complainant and her
daughter ever conveyed their shares to others.
Respondent likewise did not explain why he did not return
the certificates representing the 266 shares after the lapse
of 5 years from the time the voting trust certificate was
executed in 1981.9
The records show that up to now, the complainant and her
daughter own 97% of the outstanding shares but
respondent never bothered to explain why they were never
asked to participate in or why they were never informed of
important corporate decisions.
Third, respondent, in his comment, alleged that due to the
objection of complainant and her daughter to his proposal
to hire an accountant, the corporation had no formal
accounting of its revenues and income. However,
respondent’s position paper maintained that there was no
accounting because the part-time bookkeeper of the
corporation connived with complainant and her daughter in
keeping the corporate records.
Fourth, respondent’s claim that complainant and her
daughter took control of the operations of the corporation in
1986 is belied by the fact that complainant and her
daughter were not even present in the alleged meeting of
the board (which took place after 1986) to discuss the
foreclosure of the mortgaged properties. The truth is that he
never informed them of such meeting and he never gave
control of the corporation to them.
Fifth, Commissioner Cunanan found that:
"5. on the matter of the receipts issued by respondent
evidencing payment to him of rentals by lessees of the
corporation, attached to the complaint as Annexes ‘H’ to ‘H-
17’, respondent claims that the receipts are temporary in
nature and that subsequently regular corporate receipts
were issued. On their face however the receipts clearly
appear to be official receipts, printed and numbered duly
signed by the respondent bearing his printed name.
"It is difficult to believe that a lawyer of respondent’s stature
would issue official receipts to lessees if he only meant to
issue temporary ones."10
Sixth, respondent denies that he acted as Corporate
Secretary aside from being the Chairman, President and
Treasurer of the corporation. Yet respondent submitted to
the investigating commission documents which were
supposed to be in the official possession of the Corporate
Secretary alone such as the stock and transfer book and
minutes of meetings.
Seventh, he alleged in his comment that he was the one
who proposed the establishment of the corporation that
would invest the properties of the complainant but, in his
position paper, he said that it was a certain Atty. Rosauro
Alvarez who made the proposal to put up the corporation.
 P A L E ( C a n n o n 1 ) | 22

After a thorough review of the records, we find that daughter. The respondent merely held them in trust for
respondent committed grave and serious misconduct that complainant (now an ailing 83-year-old) and her daughter.
casts dishonor on the legal profession. His misdemeanors The properties conveyed fraudulently and/or without the
reveal a deceitful scheme to use the corporation as a requisite authority should be deemed as never to have
means to convert for his own personal benefit properties left been transferred, sold or mortgaged at all. Respondent
to him in trust by complainant and her daughter. shall be liable, in his personal capacity, to third parties who
may have contracted with him in good faith.
Not even his deviousness could cover up the wrongdoings
he committed. The documents he thought could exculpate Based on the aforementioned findings, this Court believes
him were the very same documents that revealed his that the gravity of respondent’s offenses cannot be
immoral and shameless ways. These documents were adequately matched by mere suspension as recommended
extremely revealing in that they unmasked a man who knew by the IBP. Instead, his wrongdoings deserve the severe
the law and abused it for his personal gain without any penalty of disbarment, without prejudice to his criminal and
qualms of conscience. They painted an intricate web of lies, civil liabilities for his dishonest acts.
deceit and opportunism beneath a carefully crafted
smokescreen of corporate maneuvers. WHEREFORE, respondent Attorney Jesus T. Balicanta is
hereby DISBARRED. The Clerk of Court is directed to strike
The Code of Professional Responsibility mandates upon out his name from the Roll of Attorneys.
each lawyer, as his duty to society, the obligation to obey
the laws of the land and promote respect for law and legal SO ORDERED.
processes. Specifically, he is forbidden to engage in
unlawful, dishonest, immoral or deceitful conduct. 11 If the
practice of law is to remain an honorable profession and
attain its basic ideal, those enrolled in its ranks should not
only master its tenets and principles but should also, in their
lives, accord continuing fidelity to them.12 Thus, the
requirement of good moral character is of much greater
import, as far as the general public is concerned, than the
possession of legal learning.13 Lawyers are expected to
abide by the tenets of morality, not only upon admission to
the Bar but also throughout their legal career, in order to
maintain one’s good standing in that exclusive and honored
fraternity.14 Good moral character is more than just the
absence of bad character. Such character expresses itself
in the will to do the unpleasant thing if it is right and the
resolve not to do the pleasant thing if it is wrong. 15 This must
be so because "vast interests are committed to his care; he
is the recipient of unbounded trust and confidence; he deals
with his client’s property, reputation, his life, his all." 16

Indeed, the words of former Presiding Justice of the Court

of Appeals Pompeyo Diaz cannot find a more relevant
application than in this case:

"There are men in any society who are so self-serving that

they try to make law serve their selfish ends. In this group
of men, the most dangerous is the man of the law who has
no conscience. He has, in the arsenal of his knowledge, the
very tools by which he can poison and disrupt society and
bring it to an ignoble end."17

Good moral standing is manifested in the duty of the lawyer

"to hold in trust all moneys and properties of his client that
may come into his possession."18 He is bound "to account
for all money or property collected or received for or from
the client."19 The relation between an attorney and his client
is highly fiduciary in nature. Thus, lawyers are bound to
promptly account for money or property received by them
on behalf of their clients and failure to do so constitutes
professional misconduct.20

This Court holds that respondent cannot invoke the

separate personality of the corporation to absolve him from
exercising these duties over the properties turned over to
him by complainant. He blatantly used the corporate veil to
defeat his fiduciary obligation to his client, the complainant.
Toleration of such fraudulent conduct was never the reason
for the creation of said corporate fiction.

The massive fraud perpetrated by respondent on the

complainant leaves us no choice but to set aside the veil of
corporate entity. For purposes of this action therefore, the
properties registered in the name of the corporation should
still be considered as properties of complainant and her