Adv Leg Wri Cases (Pleadings and Motions)

7/22/2019 Adv Leg Wri Cases (Pleadings and Motions)

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LEOPOLDO SY-QUIA Et al vs. MARY A. MARSMANet al

G.R. No. L-23426 March 1, 1968

Leopoldo Sy-quia Hector Moreno, Alejandro de Santos, Pedro Aguirre and Hans Inhelder commenced quo warranto proceeding against

Mary A. Marsman, A. L. Velilla, A. V. Santiago, E. G. Vito and H. A. Doornbosch in the Court of First Instance of Rizal, with the filing of acomplaint alleging as follows:

1. Plaintiffs are all of age and residents of the Province of Rizal, except Leopoldo Sy-quia who is a resident of the City of Manila,defendants are all of age and residents of the Province of Rizal, except H. A. Doornbosch who is a resident of the City of Manila, MaryA. Marsman being a widow and all with place of business at the Marsman Building, Buendia Avenue, Makati, Rizal, where they may beserved with summons and a copy of this complaint.

2. Prior to December 29, 1960, defendants constituted the Board of Directors of Marsman Investment, Ltd., a corporation dulyorganized and existing under and by virtue of the laws of the United Kingdom with principal offices in London and Philippine offices atthe Marsman Building, Buendia Avenue, Makati, Rizal.

3. On December 29, 1960, at the annual general meeting and extraordinary general meeting of stockholders of said corporation heldat its Philippine Offices (Marsman Building), there being a quorom and all prerequisites, formal as well as essential for the holding ofsaid meetings having been complied with, plaintiffs were duly elected, in accordance with the British Companies Act of 1948 and theArticles of Association of said corporation, the governing law on the matter, directors of said Marsman Investments, Ltd.

4. On January 4, 1961, as such directors of Marsman Investments, Ltd., plaintiffs held an organizational meeting at the MarsmanBuilding, site of its Philippine Offices, and, thereafter, plaintiffs, singly as well as collectively, demanded of defendants, who were thenwithin the premises, the vacation of their respective offices as such members of the Board of Directors of Marsman Investments, Ltd.and the turning over of the same to plaintiffs, as well as all the books, accounts, papers and other records of the corporation.

5. Defendants rejected this demand, as well as all other subsequent similar demands made by plaintiffs, and, to this date, have beenacting and posing as the lawful members of the Board of Directors of Marsman Investments, Ltd. thereby usurping offices lawfullypertaining to plaintiffs.

6. For the enforcement and protection of their rights so grossly and wantonly violated by defendants, plaintiffs had to retainundersigned counsel whose reasonable fee, until final determination of this case, is P15,000.00.

Plaintiffs thus prayed for the ouster of defendants as directors of Marsman Investments, Ltd. and their recognition and institutioninstead of the latter; for attorneys' fees in the sum of P15,000.00 and costs.

Defendants moved for the dismissal of the action pointing to the pendency of other actions (Civ. Case No. 45935, CFI of Manila andCivil Case No. Q-5934, CFI of Rizal), allegedly involving the same parties and over the same cause of action. Upon its denial by the court,defendants filed an answer that reads:


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1. With reference to the allegations in paragraph 1, defendants represent that (a) defendant Mary A. Marsman is now deceased, thedefendant having died on January 11, 1968 in Palo Alto, California; (b) defendant Alexander Sycip was appointed by the probate courtin Sp. Proc. No. 3883, of this Court executor of the estate of Mary A. Marsman; and (c) defendant H.A. Doornbosch no longer residesin the Philippines.

2. They deny the allegation in paragraph 3 that on December 29, 1960 at the annual general meeting and extraordinary generalmeeting of the stockholders or members of Marsman Investments, Ltd., "plaintiffs were duly elected, in accordance with the BritishCompanies Act of 1948 and the Articles of Association of said corporation, the governing law on the matter, directors of said Marsman

Investments, Ltd."

3. They have no knowledge or information sufficient to form a belief as to the truth of the allegation in paragraph 4 that on January 4,1961, as such directors of Marsman Investments, Ltd., plaintiffs held an organizational meeting at the Marsman Building, site of itsPhilippine Offices; and they deny the further allegation in paragraph 4 that thereafter, plaintiffs, singly as well as collectively,demanded of defendants, who were then within the premises, the vacation of their respective offices as such members of the Board ofDirectors of Marsman Investments, Ltd. and the turning over of the same to plaintiffs, as well as all the books, accounts, papers andother records of the corporation.

4. They deny the right of plaintiffs to attorney's fees.1wph1.t

As affirmative defenses, it was contended that the complaint should be dismissed as far as Mary A. Marsman and H. A. Doornboschwere concerned; the first having died on January 11, 1963, and the second having vacated his position as director of the corporation.

Plaintiffs thereupon filed a motion for judgment on the pleadings, claiming that defendants, by making general denials in their answer,had in effect admitted all the material averments of the complaint. Over defendants' vigorous opposition, the court below sustained plaintiffs'stand, reasoning that the mere repetition by defendants in their answer of the averments of the complaint, even if prefaced by the phrase"that he denies", did not constitute specific denial of plaintiffs' cause of action; and allegations in the answer according to the Court, are justnegatives pregnant which amounted to admission of the averments of the complaint. As the answer allegedly failed to tender an issue,plaintiffs were consequently declared the duly elected directors of the Marsman Investments, Ltd. and defendants were ordered to turn overto them all the books, accounts, papers and other records of the corporation. Plaintiffs' demand for attorneys' fees, however, was denied, fornot being substantiated by evidence. Hence, this appeal by the defendants.

We find this appeal to be without merit.1wph1.t

A comparison of paragraph 3 of the complaint and paragraph 2 of the answer will show that the answer in effect denies each and everyallegation of plaintiffs, with the result that the denial is general and not specific as required by the Rules (Revised Rule 8, sec. 10) providing:

Sec. 10. Specific denial. The defendant must specify each material allegation of fact the truth of which he does not admitand, whenever practicable, shall set forth the substance of the matters which he will rely upon to support his denial. Where a pleaderdesires to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and shall deny onlythe remainder. Where the defendant is without knowledge or information sufficient to form a belief as to the truth of a materialaverment made in the complaint, he shall so state, and this shall have the effect of a denial.


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There is no difference between an averment that a defendant "denies each and every allegation" and a plea whereby the defendant, asin this case, denies the recitals of the complaint reproduced in the answer. If the first mode of denial is and has been declared a generaldenial,1the second should be equally so held. For the answer before us, in reality, leaves in doubt all the averments of paragraph 3 of thecomplaint: defendants-appellants do not specify therein whether what they deny is that the annual general meeting was held, or whether it isthe fact that plaintiffs were elected directors, or whether the election was held conformably to the British laws governing the matter.

In addition, the Rules require that besides specifying the allegations of fact not admitted, the answer should set forth the mattersrelied upon in support of the denial;2so that in effect, the Rules are no longer satisfied with mere denials, even if specific, but demand that

defendant manifest what he considers to be the true facts. Note that our Rules do not permit a party to deny everything in his opponent'spleading, as it could under Rule 8, subsection (b) of the Federal Rules of Civil Procedure [I Moran, Rules of Court, p. 280, 1963 Ed.]. Thedefendants-appellants do not aver any matters to support their denials.

The rule, it is true, qualifies the requirement with the words "if practicable": but the defendants nowhere attempted to demonstratewhy it was not practicable for them to aver the facts that negate or contradict the plaintiffs' allegations. Hence, the denial in paragraph 2 ofthe answer are but general denials that operate as an admission of the facts pleaded in paragraph 3 of the complaint.

With regard to the plea of lack of knowledge or information set up in paragraph 3 of the answer, this Court's decision in Warner Barnesvs. Reyes, 103 Phil. 662, 665, is authority for the proposition that this form of denial must be availed of with sincerity and good faith, not forthe purpose of confusing the other party, nor for purposes of delay. Yet, so lacking in sincerity and good faith is this part of the answer that

defendants-appellants go to the limit of denying knowledge or information as to whether they (defendant's) were in the premises (MarsmanBldg.) on January 4, 1961, as averred in paragraph 4 of the complaint. Yet whether such a fact was or was not true could not be unknown tothese defendants.

Very plainly, appellants here systematically adopted the tactic of trapping and confusing plaintiffs as to what facts they had to prove orwhat issues must be met. Even their so-called special defenses were likewise evasive, and did not touch the heart of the controversy. Suchstrategy we can not sanction. It is violative of the policy of fair disclosure of facts required by the Rules. Hence, we hold that no error wascommitted by the Court below in concluding that the answer tendered no issue, and that judgment on the pleading was warranted.

Defendants-appellants argue that if the answer tended to confuse plaintiffs, their remedy lay in a motion for particulars. But, the Rulesplaced on appellants the duty to be specific as to their contentions: what facts they denied and what facts they know or believe to have

actually happened. They did not do so. To require plaintiffs now to ask for particulars is to enable defendants to delay the trial and dispositionof the case by ignoring in their answer what the rules require. They would thus reap benefit from their own wrong.

FOR THE FOREGOING REASONS, the order and judgment appealed from are affirmed. Costs against appellants in all instances. Soordered.


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Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

A.M. No. 06-9-545-RTC January 31, 2008

Re: CONVICTION OF JUDGE ADORACION G. ANGELES, REGIONAL TRIAL COURT, BRANCH 121, CALOOCAN CITY IN CRIMINALCASE NOS. Q-97-69655 to 56 FOR CHILD ABUSE

DECISION

NACHURA,J.:

Before this Court is yet another administrative case confronting respondent Adoracion G. Angeles (respondent), Presiding Judge of theRegional Trial Court (RTC), Branch 121, Caloocan City (sala) filed by the Office of the Court Administrator1(OCA) recommending that she besuspended pending the outcome of this administrative case.

The Facts

On July 17, 2006, the RTC, Branch 100, Quezon City rendered a Decision2 in Criminal Case Nos. Q-97-69655-56 convicting respondent ofviolation of Republic Act (RA) No. 7610.3The criminal cases are now on appeal before the Court of Appeals (CA).4

On July 25, 2006, Senior State Prosecutor Emmanuel Y. Velasco (SSP Velasco) of the Department of Justice (DOJ) wrote a letter5 to thenChief Justice Artemio V. Panganiban inquiring whether it is possible for this Court, in the public interest, motu proprioto order the immediatesuspension of the respondent in view of the aforementioned RTC Decision. SSP Velasco opined:

1. Judge Angeles now stands convicted on two counts of a crime, child abuse under Republic Act 7610, which involves moral turpitude.

Until she clears her name of such conviction, her current moral qualification to do the work of a judge is under a dark cloud. Litigantsseeking justice in our courts are entitled to a hearing by judges whose moral qualifications are not placed in serious doubt.

2. Although her conviction is not yet final, the presumption of innocence that Judge Angeles enjoyed during the pendency of the trialhas already been overcome by its result. The presumption today is that she is guilty and must clear her name of the charges.

x x x x

It simply would not be right to have a person presumably guilty of a crime involving moral turpitude to hear and adjudicate the casesof others.
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3. Under section 5 of Rule 114 of the Rules of Criminal Procedure, since the RTC of Quezon City convicted Judge Angeles of an offensenot punishable by death, reclusion perpetua or life imprisonment, she no longer has a right to bail and, therefore, should ordinarily beheld in prison pending adjudication of her appeal. That the RTC of Quezon City chose

to exercise its discretionary power to nonetheless grant her bail does not change the fact that, except for the bail, Judge Angeles'rightful place by reason of conviction is within the confinement of prison.

It would seem incongruous for the Supreme Court to allow convicted felons out on bail to hear and adjudicate cases in its courts.

4. Finally, as a sitting judge who wields power over all persons appearing before her and has immeasurable influence within thejudicial system as one of its members, Judge Angeles could definitely cause pressure to bear, not only on the members of the Court ofAppeals and, possibly, the Supreme Court, but also on the Office of the Solicitor General that prosecutes her case on appeal. Onlytemporary suspension from official function, pending resolution of her case, will neutralize her judicial clout and clear the air of anykind of suspicion that justice is not going well in her case.

On July 27, 2006, the matter was referred to the OCA for comment and recommendation.6

On the basis of SSP Velasco's letter and by virtue of this Court's Resolution7dated March 31, 1981, the OCA submitted to this Court a Report8dated August 25, 2006 with an attached Administrative Complaint,9the dispositive portion of which reads as follows:

WHEREFORE, it is respectfully prayed that this administrative complaint be given due course and, respondent be ordered to file herComment within ten (10) days from receipt. Considering the evidence is prima facie strong, it is respectfully recommended that she beINDEFINITELY SUSPENDED pending the outcome of the instant case or until further orders from this Court. It is furtherrecommended that after the Comment is filed, the administrative proceeding be suspended to await the final outcome of the criminalcases filed against her.

In a Resolution10 dated September 18, 2006, this Court's Second Division approved all of these recommendations, thus, suspendingrespondent from performing her judicial functions while awaiting the final resolution of her criminal cases or until further orders from thisCourt.

On October 6, 2006, respondent filed an Urgent Motion for Reconsideration11of the aforementioned Resolution. Respondent claimed that thesuspension order was wielded against her without affording her the opportunity to be heard since she was not furnished copies of SSPVelasco's letter and OCA's Administrative Complaint. Thus, respondent submitted that her suspension is essentially unjust. Moreover,respondent manifested that the two criminal cases against her are on appeal before the CA and have, therefore, not yet attained finality. Assuch, respondent still enjoys the constitutional presumption of innocence and her suspension clashes with this presumption and is tantamountto a prejudgment of her guilt.

On the other hand, on October 11, 2006, SSP Velasco filed an Urgent Appeal/Manifestation 12to the Court En Banc on the alleged unethicalconduct of respondent, seeking the immediate implementation of this Court's Resolution dated September 18, 2006. On October 16, 2007,SSP Velasco filed an Opposition to the said Motion for Reconsideration,13 manifesting that respondent continuously defied this Court'sResolution dated September 18, 2006 as she did not desist from performing her judicial functions despite her receipt of said Resolution on

October 6, 2006. SSP Velasco stressed that an order of suspension issued by this Court is immediately executory notwithstanding the filing ofa motion for reconsideration. Moreover, SSP Velasco reiterated that due to her conviction on two counts of child abuse, respondent no longer
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enjoys the constitutional presumption of innocence and should remain suspended in order to erase any suspicion that she is using herinfluence to obtain a favorable decision and in order to maintain and reaffirm the people's faith in the integrity of the judiciary.

Correlatively, the Integrated Bar of the Philippines-Caloocan, Malabon, Navotas Chapter (IBP-CALMANA Chapter), through its Public RelationsOfficer (PRO) Atty. Emiliano A. Mackay, wrote a letter14dated October 18, 2006 addressed to the Second Division of this Court inquiring as tothe effectivity of the Resolution suspending the respondent so as not to sow confusion among the legal practitioners and party litigants withpending cases before the respondent's sala. Likewise, the IBP-CALMANA Chapter manifested that respondent did not cease to perform herjudicial functions as evidenced by a Commitment Order15 issued by respondent on October 16, 2006, and handwritten manifestations16of

some party litigants attesting that on various dates they attended hearings before respondent's sala. In the same vein, in an undated letter17addressed to Associate Justice Angelina Sandoval-Gutierrez, the Concerned Trial Lawyers in the City of Caloocan raised the same concernbefore this Court.

In her Reply18to SSP Velasco's Opposition, respondent admitted that she continued discharging her bounden duties in utmost good faith afterfiling her motion for reconsideration. She averred that she did not have the slightest intention to defy or ignore this Court's Resolution whichdid not categorically state that the said suspension is immediately executory. Respondent reiterated her arguments against the suspensionorder on the grounds that she was deprived of due process; that her conviction is not yet final; and that the crimes for which she wasconvicted have nothing to do with the discharge of her official duties. Lastly, respondent claimed that the instant case is but anotherharassment suit filed against her by SSP Velasco because she earlier filed an administrative complaint against the latter for maliciouslyindicting respondent with respect to another case of child abuse.

On October 25, 2006, respondent filed a Manifestation of Voluntary Inhibition19stating that she is voluntarily inhibiting from handling all casesscheduled for hearing before her sala from October 25, 2006 to November 13, 2006.

On October 27, 2006, the OCA conducted a judicial audit in respondent's sala. Per Report20of the judicial audit team, it was established thatfrom October 6, 2006 to October 23, 2006, respondent conducted hearings, issued orders, decided cases and resolved motions, acting as ifthe order of suspension which the respondent received on October 6, 2006 was only a "mirage." The Report was brought to the attention ofChief Justice Reynato S. Puno by Court Administrator Christopher O. Lock (CA Lock).21

On October 30, 2006, SSP Velasco filed an Administrative Complaint against respondent for violation of the Court's Circulars, the New Code ofJudicial Conduct, and the Civil Service Rules and Regulations, and for Gross Misconduct, asseverating, among others, that the suspension

order was immediately executory22

and that integrity as mandated by the New Code of Judicial Conduct is essential not only to the properdischarge of the judicial office but also to the personal demeanor of judges.

In her Comment,23respondent, in addition to her previous contentions, argued that the Resolution dated September 18, 2006 ordering hersuspension was issued only by a Division of this Court contrary to Section 11, Article VIII of the Constitution, which provides that " theSupreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of theMembers who actually took part in the deliberations on the issues in the case and voted thereon."

On November 9, 2006, SSP Velasco filed a Supplement to the Opposition to Respondent's Urgent Motion for Reconsideration 24 of theResolution dated September 18, 2006. Thereafter, numerous pleadings25 were filed by both parties practically repeating their previousallegations.

Subsequently, in a Resolution dated February 19, 2007, this Court lifted the suspension of respondent on the ground that:
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Upon verification, it appears that the Office of the Clerk of Court, Second Division, indeed failed to attach a copy of the OCA complaintto the copy of our resolution dated September 18, 2006 sent to Judge Angeles. Due process requires that Judge Angeles be accordedthe opportunity to answer the complaint.

Respondent was then given a fresh period of ten (10) days from the receipt of the OCA Administrative Complaint within which to file hercomment.

On March 15, 2007, respondent filed her Comment26with the following material assertions: (1) that CA Lock as Court Administrator and who

in behalf of the OCA stands as the complainant in this case, has no personal knowledge of the facts, issues and evidence presented in thecriminal cases; (2) that the instant case, filed eleven (11) years after the criminal charges for child abuse were filed by Nancy Gaspar andProclyn Pacay, smacks of malice and bad faith on the part of CA Lock; (3) that CA Lock is a friend and former subordinate of then NationalBureau of Investigation (NBI) Director Epimaco Velasco (Director Velasco), father of

herein party SSP Velasco, thus, CA Lock's ill motive against respondent is clear; (4) that CA Lock should not use the OCA to harass a memberof the judiciary; (5) that the decision in the aforementioned criminal cases has not yet become final; (6) that the acts for which she wasconvicted are totally alien to her official functions and have nothing to do with her fitness and competence as a judge; (7) that there is nowisdom in the imposition of the suspension which in this case is preventive in character because respondent cannot do anything through heroffice that could possibly cause prejudice to the prosecution of the child abuse case; (8) that the lifting of the suspension order retroacts tothe date of its issuance; (9) that the instant case should be struck down because the judgment of conviction was contrary to law and

jurisprudence; and (10) that under the circumstances, all the charges were merely concocted by respondent's detractors in order toembarrass, humiliate and vex her.

In his Motion for Reconsideration27of this Court's Resolution dated February 19, 2007, SSP Velasco argued that respondent's deprivation ofher right to due process was cured when she filed her motion for the reconsideration of the suspension order; thus, there is no need to liftsuch order. He reiterated his previous statement that "as a sitting judge who wields power over all persons appearing before her and thus hasimmeasurable influence within the judicial system as one of its members, Judge Angeles could definitely cause pressure to bear, not only onthe members of the Court of Appeals and, possibly, the Supreme Court, but also on the Office of the Solicitor General (OSG) that prosecutesher case on appeal. Only her suspension from official function, pending resolution of her case, will neutralize her judicial clout and clear theair of any kind of suspicion that justice is not going well in her case."28

In response, respondent filed a Comment/Opposition to the said motion with a Motion to Declare SSP Velasco in contempt of Court29

due tothis aforementioned statement. Respondent argued that such statement betrays SSP Velasco's cheap and low perception of the integrity andindependence of this Court, of the CA and of the OSG. It also shows his utter lack of respect for the judicial system. Moreover, respondentadded that since she was not furnished a copy of the OCA Administrative Complaint, the issuance of the suspension order deprived her of herright to due process and prevented her from fully ventilating her arguments. Respondent, likewise, questioned SSP Velasco's legal personalityin this case as it was the OCA which, motu proprio, initiated the filing of the said case.

In a Resolution dated July 4, 2007, this Court, among others, directed SSP Velasco to file his comment on respondent's motion to cite him forcontempt. On August 21, 2007, SSP Velasco filed his Comment claiming that he has legal personality to file pleadings before this Courtbecause it was he who initiated the filing of this case through his letter to then Chief Justice Artemio V. Panganiban on July 25, 2006. Headmitted that the allegedly contemptuous statements were merely lifted from said letter. He argued that the former Chief Justice or the Court

for that matter, did not find any contemptuous statement in the letter. Taking the letter in its entire context, SSP Velasco posited that he didnot commit any act of disobedience to the orders of this Court; neither did he bring the Court's authority and the administration of law into
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disrepute nor did he impede the due administration of justice. Nowhere in the letter was it stated that this Court, the CA and the OSG couldbe pressured; the letter merely stated that respondent could cause pressure. SSP Velasco pointed that the letter to the then Chief Justice, initself, shows his respect for the judiciary and the promotion of the administration of justice.

In her Reply30to said Comment, respondent argued that it cannot be said that somebody could cause pressure if no one is believed to besusceptible to pressure. Thus, the use of this kind of language tends to degrade the administration of justice and constitutes indirectcontempt. She stressed that SSP Velasco's act of misrepresenting himself as the complainant in this case while it is clear from the Resolutionof this Court that the OCA motu propriofiled the same, isper secontemptuous.

Meanwhile in its Memorandum,31 the OCA reiterated its earlier position that respondent should be suspended pending the outcome of thisadministrative case. The OCA opined that the Resolution lifting the suspension order was basically premised on the ground that respondentwas not accorded her right to due process. By filing her Comment raising arguments against her suspension, respondent has fully availedherself of such right. However, the OCA submitted that respondent's arguments are devoid of merit on the following grounds: (1) the CourtAdministrator need not personally know about the criminal cases of respondent because the instant case is based on a public document, i.e.,the decision of the RTC convicting the respondent of child abuse; (2) the fact that said decision has not attained finality is of no moment forwhat is being sought is merely preventive suspension. Thus, in the event that respondent is acquitted in the criminal cases of which shestands accused, she will receive the salaries and other benefits which she would not receive during her suspension; (3) even if the acts ofchild abuse have no connection with respondent's official functions as a judge, it is established that the private conduct of judges cannot bedissociated from their official functions; (4) respondent's preventive suspension shall serve an important purpose: it will protect the image of

the judiciary and preserve the faith of the people in the same; and

(5) citing the case of Leonida Vistan v. Judge Ruben T. Nicolas,32 the RTC decision convicting respondent of child abuse is prima facieevidence that respondent committed the said crime which indicates the moral depravity of the offender and, as such, warrants thepunishment of dismissal from the service. Thus, the OCA recommended that respondent be suspended pending the outcome of thisadministrative case and that the CA be directed to resolve the criminal cases with dispatch.

The Issues

There are two ultimate issues in this case:

First, whether or not grounds exist to cite SSP Velasco for indirect contempt of Court; and

Second, whether or not grounds exist to preventively suspend the respondent pending the resolution of this administrative case.

The Court's Ruling

We resolve the first issue in the negative.

In Pilar Barredo-Fuentes v. Judge Romeo C. Albarracin,33we held:

Contempt of court is a defiance of the authority, justice or dignity of the court, such conduct as tends to bring the authority andadministration of the law into disrespect or to interfere with or prejudice parties, litigant or their witnesses during litigation.
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There are two kinds of contempt punishable by law: direct contempt and indirect contempt. Direct contempt is committed when aperson is guilty of misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings before the same,including disrespect toward the court, offensive personalities toward others, or refusal to be sworn or to answer as a witness, or tosubscribe an affidavit or deposition when lawfully required to do so. Indirect contempt or constructive contempt is that which iscommitted out of the presence of the court. Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade theadministration of justice would constitute indirect contempt.

In her Comment/Opposition with Motion to Declare SSP Velasco in contempt of Court, respondent espoused the view that SSP Velasco is

guilty of indirect contempt for using language which tends to degrade the administration of justice. But if this were so, respondent shouldhave availed herself of the remedy in accordance with Section 4, Rule 71 of the Rules of Court, viz:

SEC. 4. How proceedings commenced. - Proceedings for indirect contempt may be initiated motu proprio by the court against whichthe contempt was committed by an order or any other formal charge requiring the respondent to show cause why he should not bepunished for contempt.

In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting particularsand certified true copies of documents or papers involved therein, and upon full compliance with the requirements forfiling initiatory pleadings for civil actions in the court concerned . . . . (Emphasis supplied)

A charge of indirect contempt must be filed in the form of a verified petition if it is not initiated directly by the court against which thecontemptuous act was committed. On previous occasions, we clarified that such petition is in the nature of a special civil action. Certified truecopies of related documents must be submitted with the petition and appropriate docket fees must be paid. The requirement of a verifiedpetition is mandatory. As Justice Florenz D. Regalado has explained:

This new provision clarifies with a regulatory norm the proper procedure for commencing contempt proceedings. While suchproceeding has been classified as a special civil action under the former Rules, the heterogeneous practice, tolerated by the courts, hasbeen for any party to file a mere motion without paying any docket or lawful fees therefor and without complying with therequirements for initiatory pleadings, which is now required in the second paragraph of [Section 4].34

On the charge of indirect contempt of court, we therefore find that SSP Velasco's statement, while irresponsible, did not necessarily degrade

the administration of justice as to be considered contumacious. The salutary rule is that the power to punish for contempt must be exercisedon the preservative, not vindictive principle, and on the corrective and not retaliatory idea of punishment. A lawyer's remarks explaining hisposition in a case under consideration do not necessarily assume the level of contempt that justifies the court's exercise of the power ofcontempt.35We note that SSP Velasco's statement was made in support of his argument for the imposition of preventive suspension, i.e., toprevent the respondent from using her current position to alter the course of the investigation and the disposition of the appealed criminalcases.

Nevertheless, SSP Velasco must bear in mind that as a lawyer, he must be circumspect in his language. We remind him of our admonition toall lawyers to observe the following Canons of the Code of Professional Responsibility, which read:

Canon 8. Rule 8.01 - A lawyer shall not, in his professional dealings, use language which is abusive, offensive or otherwise improper.
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Canon 11. A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similarconduct by others.

A lawyer is an officer of the Court. It is a lawyer's sworn and moral duty to help build and not unnecessarily destroy the people's high esteemand regard for the courts so essential to the proper administration of justice.

A lawyer's language may be forceful but should always be dignified;

emphatic but respectful, as befitting an advocate. Arguments, whether written or oral, should be gracious to both court and opposing counsel,and should use such language as may be properly addressed by one person to another.36

We likewise resolve the second issue in the negative. The Court cannot fully agree with the recommendation of the OCA.

Pertinent is our ruling in Emmanuel Ymson Velasco v. Judge Adoracion G. Angeles,37which involved the same parties and where we held:

An act unrelated to a judge's discharge of judicial functions may give rise to administrative liability even when such act constitutes aviolation of penal law. When the issue is administrative liability, the quantum of proof required is only substantial evidence, or thatamount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Evidence to support aconviction in a criminal case is not necessary, and the dismissal of the criminal case against the respondent in an administrative caseis not a ground for the dismissal of the administrative case. Conversely, conviction in the criminal case will not automaticallywarrant a finding of guilt in the administrative case. We emphasize the well-settled rule that criminal and civil cases arealtogether different from administrative matters, and each must be disposed of according to the facts and the law applicable to it.

In Nuez v. Atty. Arturo B. Astorga,38 the Court held that the mere existence of pending criminal charges against the respondent-lawyercannot be a ground for disbarment or suspension of the latter. To hold otherwise would open the door to harassment of attorneys through themere filing of numerous criminal cases against them.

By parity of reasoning, the fact of respondent's conviction by the RTC does not necessarily warrant her suspension. We agree withrespondent's argument that since her conviction of the crime of child abuse is currently on appeal before the CA, the same has not yetattained finality. As such, she still enjoys the constitutional presumption of innocence. It must be remembered that the existence of a

presumption indicating the guilt of the accused does not in itself destroy the constitutional presumption of innocence unless the inculpatingpresumption, together with all the evidence, or the lack of any evidence or explanation, proves the accused's guilt beyond a reasonabledoubt. Until the accused's guilt is shown in this manner, the presumption of innocence continues .39 In Mangubat v. Sandiganbayan,40 theCourt held that respondent Sandiganbayan did not act with grave abuse of discretion, correctible by certiorari, when it ruled that despite herconvictions, "Preagido has still in her favor the constitutional presumption of innocence x x x (and until) a promulgation of final conviction ismade, this constitutional mandate prevails." The Court therein further held that such ruling is not bereft of legal or logical foundation andcannot, in any sense, be characterized as a whimsical or capricious exercise of judgment. So also must we hold in this case.

Moreover, it is established that any administrative complaint leveled against a judge must always be examined with a discriminating eye, forits consequential effects are, by their nature, highly penal, such that the respondent judge stands to face the sanction of dismissal ordisbarment.41As aforementioned, the filing of criminal cases against judges may be used as tools to harass them and may in the long run

create adverse consequences. The OCA, as well as SSP Velasco, failed to prove that other than the fact that a judgment of conviction for childabuse was rendered against the respondent, which is still on appeal, there are other lawful grounds to support the imposition of preventive
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suspension. Based on the foregoing disquisition, the Court is of the resolve that, while it is true that preventive suspensionpendente litedoesnot violate the right of the accused to be presumed innocent as the same is not a penalty,42the rules on preventive suspension of judges, nothaving been expressly included in the Rules of Court, are amorphous at best.43Likewise, we consider respondent's argument that there is nourgency in imposing preventive suspension as the criminal cases are now before the CA, and that she cannot, by using her present position asan RTC Judge, do anything to influence the CA to render a decision in her favor. The issue of preventive suspension has also been renderedmoot as the Court opted to resolve this administrative case.

However, even as we find that the OCA and SSP Velasco have not clearly and convincingly shown ample grounds to warrant the imposition of

preventive suspension, we do note the use of offensive language in respondent's pleadings, not only against SSP Velasco but also againstformer CA Lock. To reiterate our previous ruling involving the respondent, her use of disrespectful language in her Comment is certainlybelow the standard expected of an officer of the court. The esteemed position of a magistrate of the law demands temperance, patience andcourtesy both in conduct and in language.44Illustrative are the following statements: "CA Lock's hostile mindset and his superstar complex";45"In a frenzied display of arrogance and power";46"(CA Lock's) complaint is merely a pathetic echo of the findings of the trial court";47and"when (CA Lock) himself loses his objectivity and misuses the full powers of his Office to persecutethe object of his fancy, then it is time forhim to step down."48In the attempt to discredit CA Lock, respondent even dragged CA Lock's son into the controversy, to wit:

It is noteworthy to mention that CA Lock's hostile attitude was aggravated by his embarrassment when the undersigned mentioned tohim that she knew how he used his influence to secure a position for his son at the RTC Library of Pasay City which was then managedby Judge Priscilla Mijares. CA Lock had made sure that his son be assigned to the library to enable the latter to conveniently adjust his

schedule in reviewing for the bar examination.

Neither was SSP Velasco spared. Of him, the respondent said: "A reading of the motion for reconsideration readily discloses that it is mainlyanchored on SSP Velasco's malicious speculations about the guilt of the undersigned. Speculations, especially those that emanate from thepoisonous intentions of attention-seeking individuals, are no different from garbage that should be rejected outright";49and "His maliciousinsinuation is no less than a revelation of his warped mindset that a person's position could cause pressure to bear among governmentofficials. This brings forth a nagging question. Did SSP Velasco use his position at the DOJ to 'cause pressure to bear' and obtain a favorabledisposition of the administrative cases lodged against him by the undersigned? Is he afraid of his own ghost?"50

It must be stressed again that, as a dispenser of justice, respondent should exercise judicial temperament at all times, avoiding vulgar andinsulting language. She must maintain composure and equanimity. The judicial office circumscribes the personal conduct of a judge and

imposes a number of restrictions. This is the price that judges have to pay for accepting and occupying their exalted positions in theadministration of justice.51

One final word. The parties herein have admitted in their various pleadings that they have filed numerous cases against each other. We donot begrudge them the prerogative to initiate charges against those who, in their opinion, may have wronged them. But it is well to remindthem that this privilege must be exercised with prudence, when there are clearly lawful grounds, and only in the pursuit of truth and justice.This prerogative does not give them the right to institute shotgun charges with reckless abandon, or allow their disagreement to deteriorateinto a puerile quarrel, not unlike that of two irresponsible children.

Judge Angeles and SSP Velasco should bear in mind that they are high-ranking public officers whom the people look up to for zealous,conscientious and responsive public service. Name-calling hardly becomes them.
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Cognizant of the adverse impact and unpleasant consequences this continuing conflict will inflict on the public service, we find both officialswanting in the conduct demanded of public servants.

WHEREFORE, the instant administrative complaint is hereby DISMISSEDfor lack of merit. Nevertheless, respondent Adoracion G. Angeles,Presiding Judge of the Regional Trial Court of Caloocan City, Branch 121, is hereby REPRIMANDEDfor her use of intemperate language inher pleadings and is STERNLY WARNEDthat a repetition of the same or similar act shall merit a more severe sanction.

Senior State Prosecutor Emmanuel Y. Velasco of the Department of Justice is hereby WARNEDthat he should be more circumspect in thestatements made in his pleadings and that a repetition of the same shall be dealt with more severely. The motion to cite him for contempt isDENIEDfor lack of merit.

The Court of Appeals is DIRECTEDto resolve CA-G.R. CR No. 30260 involving respondent Judge Adoracion G. Angeles with dispatch.

SO ORDERED.


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Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 114732 August 1, 2000

ESTRELLA TIONGCO YARED (now deceased) substituted by one of her heirs, CARMEN MATILDE M. TIONGCO petitioner,vs.HON. RICARDO M. ILARDE, Presiding Judge, Regional Trial Court of Iloilo, Br. 26, JOSE B. TIONGCO and ANTONIO G.DORONILA, JR., respondents.

D E C I S I O N

DE LEON, JR.,J.:

Before us is a petition for certiorariunder Rule 65 assailing the Order dated March 17, 19941of the Regional Trial Court of Iloilo City, Branch26, which reinstated an earlier order cancelling the notice of lispendens annotated on the back of Transfer Certificates of Title Nos. T-92383and T-5050, of the Registry of Deeds of Iloilo City covering Lots 3244 and 3246, respectively, located in Iloilo City.

The relevant facts are summarized as follows:

On October 17, 1990, petitioner Estrella Tiongco Yared filed an amended complaint2 before the Regional Trial Court, 6th Judicial Region,Branch XXVI, against private respondents Jose B. Tiongco and Antonio Doronila, Jr. Docketed as Civil Case No. 19408, the action was one for"annulment of affidavit of adjudication, sales, transfer certificates of title, reconveyance and damages."

In brief, the amended complaint alleged that respondent Tiongco, on the basis of an affidavit of adjudication dated April 17, 1974 allegingthat he is the sole surviving heir of the previous owner, Maria Luis de Tiongco, succeeded in having the subject properties registered in hisname, to the prejudice of the other surviving heir of the previous owner, petitioner among them. Petitioner and respondent Tiongco's fatherwere siblings, and both were among several heirs of Maria Luis de Tiongco. The aforesaid affidavit of adjudication was registered with theOffice of the Register of Deeds of Iloilo City on May 10, 1974. Petitioner prayed that the properties be reconveyed to the original registeredowners, subject to partition among the lawful heirs, and that respondent Tiongco be ordered to pay damages and costs.

To protect her interest in the properties during the pendency of the case, petitioner caused to be annotated on Transfer Certificate of TitleNos. T-52547, T-4666 and T-52546,3which covered Lot Nos. 3244, 3246 and 1404, respectively. TCT Nos. T-92383andT-5050 were derivedor transferred from TCT Nos. T-52547 and T-4666 respectively and registered in the name of Tiongco.

After respondent Jose B. Tiongco filed his answer, trial ensued during which, on three separate occasions, he filed motions seeking thecancellation of the notices of lis pendens.4All these motions were denied.5
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On December 14, 1993,the respondent judge issued a Decision6dismissing petitioner's complaint and private respondent's counterclaim. Thetrial court found that petitioner's cause of action had already prescribed.

Petitioner filed a notice of appeal7on December 17, 1993. Asbefore, respondent Tiongco filed a motion for cancellation of the notices of lispendens8dated December 21, 1993; this was denied in an Order dated January 10, 1994.9He filed a "Second Motion for Reconsideration"10which was also denied in an Order dated January 26, 1994.11Displaying remarkable tenacity, respondent Tiongco filed a "Third Motion forReconsideration."12This time, however, his arguments proved persuasive. Inan Order13dated February 14, 1994,the respondent judge ruledto wit:

In the light of the ruling laid down in Magdalena Homeowners Association Inc. vs. Court of Appeals, 184 SCRA 325; 330 (1990), cited in Vda.De Kilayko vs. Tengco, 207 SCRA 600; 614-615 (1992), that "the continuance or removal of a notice of lis pendens is not contingent on theexistence of a final judgment in the action and ordinarily has no effect on the merits thereof" so that the notices of lis pendens in the case atbar may, on proper grounds, be cancelled notwithstanding the non-finality of the judgment of this Court brought about by plaintiff's appealand considering the finding of this Court that plaintiff's action had already prescribed, which finding is based on the admitted fact that thequestioned deed of adjudication was registered way back of May 10, 1974 so that the possibility of this finding being reversed is quite remoteif not totally nil and, considering further, the circumstances obtaining in this case, among which are: (1) that the criminal complaint forperjury filed by plaintiff against defendant Jose B. Tiongco based on the same deed of adjudication had already been dismissed with finalityalso on the ground of prescription; (2) that the occupants of the property who were alleged as formerly paying rentals to herein plaintiff,Estrella Tiongco Yared, had already recognized defendant's ownership and had long stopped paying rentals to plaintiff without the latter

intervening, much less, contesting the decision in Civil Case No. 15421 where defendant Jose B. Tiongco was declared with finality as the trueand lawful owner of Lots Nos. 3244 and 3246; and (3) that, if at all, the present claim of plaintiff covers but a very small portion of subjectlots consisting only a total of about 64 square meters hence, it would be unfair to the defendant who has torrens title covering the parcels oflands solely in his name to have the same subjected to the harsh effect of such a encumbrance; the Court, in view of all the foregoingconsiderations and upon further review of the records, hereby reconsiders its stand on the subject matter of lis pendens and so holds that thecontinued annotation of subject notices of lis pendens is intended to molest the defendant, Jose B. Tiongco, and is not necessary to protectthe rights of plaintiff as such rights, if any, are now foreclosed by prescription.

This time, it was petitioner's turn to seek reconsideration.14On March 4, 1994, the public respondent issued an Order15reversing himself onthe ground that (1) it had already lost jurisdiction over the case due to the expiration of the last day to appeal of both parties, (2) the noticeof appeal has been approved, and (3) the records had been ordered elevated to the Court of Appeals.

Private respondent Tiongco filed another motion for reconsideration16 against the Order dated March 4, 1994. On March 17, 1994, therespondent judge issued the order, subject of this petition, which is quoted hereunder:

Considering that under Section 9, Rule 41 of the Rules of Court, although appeal had already been perfected, the Court, prior to thetransmittal of the records to the appellate court, may issue orders for the protection and preservation of the rights of the part ies which do notinvolve any matter litigated by the appeal and considering that in the case at bar, lis pendens is not a matter litigated in the appeal and therecords have not as yet been transmitted to the appellate court so that this Court still has jurisdiction to issue the Order of February 14, 1994cancelling the notices of lis pendens annotated on TCT No. T-92383 covering Lot 3244 and on TCT No. T-5050 covering lot 3246 andconsidering further, that the said Order does not direct cancellation of lispendens annotated on TCT No. T-89483 covering Lot no. 1404 whichcontains a total area of 1,587 square meters where the area of 64 square meters claimed by plaintiff can very well be taken; as prayed for bythe defendant Jose B. Tiongco, the Order of March 4, 1994 is hereby reconsidered and set aside and the Order of February 14, 1994 is hereby
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reconsidered and set aside and the Order of February 14, 1994 cancelling the notices of lis pendens on TCT No. T-92383 covering lot 3244andon TCT No. T-5050 covering lot 3246 is hereby reinstated.

On April 5, 1994, the Register of Deeds cancelled the annotation of notices of lispendens.17

Feeling that a motion for reconsideration would be fruitless, petitioner filed the instant special civil action for certiorari, alleging that:

THE HONORABLE RESPONDENT JUDGE ACTED CAPRICIOUSLY, WHIMSICALLY AND WITH GRAVE ABUSE OF DISCRETION IN ORDERING THECANCELLATION OF THE NOTICES OF LIS PENDENS ANNOTATED AT THE BACK OF THE CERTIFICATES OF TITLE THAT ARE THE SUBJECT OFTHE CIVIL CASE NO. 19408, AS THESE ARE AMONG THE DOCUMENTS THAT ARE SOUGHT TO BE DECLARED NULL AND VOID BY THE HEREINPETITIONER.

The doctrine of lispendens is founded upon reasons of public policy and necessity, the purpose of which is to make known to the whole worldthat properties in litigation are still within the power of the court until the litigation is terminated and to prevent the defeat of the judgment ordecree by subsequent alienation.18 The notice of lispendens is an announcement to the whole world that a particular real property is inlitigation, and serves as a warning that one who acquires an interest over said property does so at his own risk, or that he gambles on theresult of the litigation over said property.19

Rule 13, Section 14 of the 1997 Rules of Civil Procedure20and Section 76 of Presidential Decree No. 1529,21otherwise known as the Property

Registration Decree provide the statutory bases for notice of lis pendens. From these provisions, it is clear that such a notice is proper only in:

a) An action to recover possession of real estate;

b) An action to quiet title thereto;

c) An action to remove clouds thereon;

d) An action for partition; and

e) Any other proceedings of any kind in Court directly affecting title to the land or the use or occupation thereof or the buildingthereon.22

Thus, all petitioner has to do is to assert a claim of possession or title over the subject property to put the property under the coverage of therule.23It is not necessary for her to prove ownership or interest over the property sought to be affected by lis pendens.

Whether as a matter, of procedure24or substance,25the rule is that a notice of lispendens may be cancelled only on two (2) grounds, namely(1) if the annotation was for the purpose of molesting the title of the adverse party, or (2) when the annotation is not necessary to protectthe title of the party who caused it to be recorded.26

The petition should be dismissed, there being a clear violation of the doctrine of judicial hierarchy that we have taken pains to emphasize inpast jurisprudence.
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Thus, we ruled in Vergara v. Suelto27that:

[t]he Supreme Court is a court of last resort, and must so remain if its is to satisfactorily perform the functions assigned to it by fundamentalcharter and immemorial tradition. It cannot and should not be burdened with the task of dealing with causes in the first instance. Its originaljurisdiction to issue the so-called extraordinary writs should be exercised only where absolutely necessary or where serious and importantreasons exist therefor. Hence, that jurisdiction should generally be exercised relative to actions or proceedings before the Court of Appeals, orbefore constitutional or other tribunals, bodies or agencies whose acts for some reason or another, are not controllable by the Court ofAppeals. Where the issuance of an extraordinary writ is also within the competence of the Court of Appeals or a Regional Trial Court, it is in

either of these courts that the specific action for the writ's procurement must be presented. This is and should continue to be the policy in thisregard, a policy that courts and lawyers must strictly observe.

We reaffirmed this policy in People v. Cuaresma,28thus:

xxx A last word. This Court's original jurisdiction to issue writ of certiorari (as well as prohibition, mandamus, quo warranto, habeas corpusand injunction) is not exclusive. It is shared by this Court with Regional Trial Courts (formerly Courts of First Instance), which may issue thewrit, enforceable in any part of their respective regions. It is also shared by this Court, and by the Regional Trial Court, with the Court ofAppeals (formerly Intermediate Appellate Court), although prior to the effectivity of Batas Pambansa Bilang 129 on August 14, 1981, thelatter's competence to issue the extraordinary writs was restricted to those "in aid of its appellate jurisdiction." This concurrence ofjurisdiction is not, however, to be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of the

court to which application therefor will be directed. There is after all a hierarchy of courts. That hierarchy is determinative of the venue ofappeals, and should also serve as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regardfor that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level ("inferior") courtsshould be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the SupremeCourt's original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly andspecifically set out in the petition. This is established policy. It is a policy that is necessary to prevent inordinate demands upon the Court'stime and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of theCourt's docket. Indeed, the removal of the restriction on the jurisdiction of the Court of Appeals in this regard, supra-resulting from thedeletion of the qualifying phrase, "in aid of its appellate jurisdiction"-was evidently intended precisely to relieve this Court pro tantoof theburden of dealing with applications for the extraordinary writs which, but for the expansion of the Appellate Court's corresponding jurisdiction,would have had to be filed with it.

The Court feels the need to reaffirm that policy at this time, and to enjoin strict adherence thereto in the light of what it perceives to be agrowing tendency on the part of litigants and lawyers to have their applications for the so-called extraordinary writs, and sometimes eventheir appeals, passed upon and adjudicated directly and, immediately by the highest tribunal of the land. The proceeding at bar is a case inpoint. The application for the writ of certiorari sought against a City Court was brought directly to this Court although there is no discerniblespecial and important reason for not presenting it to the Regional Trial Court.

The Court therefore closes this decision with the declaration, for the information and guidance of all concerned, that it will not only continueto enforce the policy, but will require a more strict observance thereof. (emphasis supplied)

Notwithstanding these pronouncements, parties persisted in disregarding the judicial hierarchy. As we noted in Santiago v. Vasquez,29
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17/123

One final observation. We discern in the proceedings in this case a propensity on the part of petitioner, and, for that matter, the same may besaid of a number of litigants who initiate recourses before us, to disregard the hierarchy of courts in our judicial system by seeking reliefdirectly from this Court despite the fact that the same is available in the lower courts in the exercise of their original or concurrentjurisdiction, or is even mandated by law to be sought therein. This practice must be stopped, not only because of the imposition upon theprecious time of this Court but also because of the inevitable and resultant delay, intended or otherwise, in the adjudication of the case whichoften has to be remanded or referred to the lower court as the proper forum under the rules of procedure, or as better equipped to resolvethe issues since this Court is not a trier of facts. We, therefore, reiterate the judicial policy that this Court will not entertain direct resort to itunless the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstance justify availment of

a remedy within and calling for the exercise of our primary jurisdiction.

This policy found further application in People v. Court of Appeals,30Aleria v. Velez, 31 and Tano v. Socrates.32 Only the presence ofexceptional and compelling reasons justified a disregard of the rule.33

Petitioner has failed to advance a satisfactory explanation as to her failure to comply with or non-observance of the principle of judicialhierarchy. There is no reason why the instant petition could not have been brought before the Court of Appeals, considering all the more thatthe appeal of the main case was already before it. In Magdalena, Homeowners Association, Inc. v. Court of Appeals34we ruled, to wit:

The notice of lis pendens-i.e., that real property is involved in an action-is ordinarily recorded without the intervention of the court where theaction is pending. The notice is but an incident in an action, an extrajudicial one, to be sure. It does not affect the merits thereof. It is

intended merely to constructively advise, or warn, all people who deal with the property that they so deal with it at their own risk, andwhatever rights they may acquire in the property in any voluntary transaction are subject to the results of the action, and may well be inferiorand subordinate to those which may be finally determined and laid down therein. The cancellation of such a precautionary notice is thereforealso a mere incident in the action, and may be ordered by the Court having jurisdiction of it at any given time. And its continuance orremoval-like the continuance or removal or removal of a preliminary attachment of injunction-is not contingent on the existence of a finaljudgment in the action, and ordinarily has no effect on the merits thereof.1wphi1

In the case at bar, the case had properly come within the appellate jurisdiction of the Court of Appeals in virtue of the perfection of theplaintiff's appeal. It therefore had power to deal with and resolve any incident in connection with the action subject of the appeal, even beforefinal judgment. The rule that no questions may be raised for the first time on appeal have reference only to those affecting the merits of theaction, and not to mere incidents thereof, e.g., cancellation of notices of lis pendens, or, to repeat, the grant or dissolution of provisional

remedies. [emphasis supplied]

Had petitioner brought the instant petition before the Court of Appeals, the same could, and would, have been consolidated with the appeal,thereby bringing under the competence of the said court all matters relative to the action, including the incidents thereof.

Prescinding from the foregoing discussion, the disposition of the instant case will be incomplete without a reference to the improper andunethical language employed by respondent Jose B. Tiongco, who is also counsel for private respondents, in his pleadings and motions filedboth before us and the court a quo. It is his belief that counsel for petitioner, Atty. Marciana Deguma, "a rambunctious wrestler-type femaleof 52 who does not wear a dress which is not red, and who stampedes into the courtroom like a mad fury and who speaks slang English toconceal her faulty grammar,"35is impelled by less than less than noble reasons in serving as counsel for petitioner. Her ulterior motive? "[T]oplease and tenderize and sweeten towards her own self the readily available Carmelo M. Tiongco,"36 a retired police major described byrespondent Tiongco as Atty. Deguma's "nio bonito,"37an unmarried mestizo with curly hair who lives with plaintiff for being houseless"38whorents a place on the subject property sought to be recovered by petitioner. Atty. Deguma, apparently are unmarried maiden of a certain age,
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