EN BANC
|
IGNACIO J. SALMINGO, Complainant, – versus – ATTY. RODNEY K. RUBICA,
Respondent. |
A.C. No. 6573 Present: PUNO, C.J., QUISUMBING,* YNARES-SANTIAGO, SANDOVAL-GUTIERREZ,* CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, GARCIA, VELASCO, JR., and NACHURA, JJ. Promulgated: July 9, 2007 |
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D E C I S I O N
CARPIO MORALES, J.:
The following facts spawned the
filing of the administrative complaint at bar, for disbarment against Atty.
Rodney K. Rubica (respondent), by herein complainant Ignacio J. Salmingo which
he transmitted to the Chief Justice by letter of
Respondent filed on
The complaint was docketed as Civil
Case No. 2243-40.
The summons for Liza Jane at her given
address at Blk. 25, Lot 36 Josefina
Summons was thus published in the Visayan Post, a weekly newspaper of general
circulation in Negros Occidental.[6]
Nothing was heard from Liza Jane, however;
hence, respondent presented evidence ex parte[7] before
Branch 40 of the Silay RTC, without the participation of the City Prosecutor.[8]
By Decision[9]
dated
In his present complaint,[12] the complainant alleges that in prosecuting
the annulment case, respondent deliberately concealed Liza Jane’s address so
that she could not be served with summons, thus enabling him to present evidence
ex parte;[13] that respondent caused the publication of
summons only in a newspaper of local circulation;[14] that
respondent did not serve a copy of his petition on the Office of the Solicitor
General and the Office of the City or Provincial Prosecutor;[15] and
that he did not cause the registration of the decree of nullity in the Civil
Registry.[16]
Complainant thus prayed:
WHEREFORE, PREMISES CONSIDERED, it is respectfully prayed of this Court that:
1. An order be issued directing:
a. The setting aside [of] the Decision in Civil Case No. 2253-40;
b. The reopening of the case in a separate sala where the City Prosecutor shall represent the State;
c. Deleting the name of Rodney K. Rubica from the Roll of Attorneys and ordering him to pay for the Cost of Retrial.
2.
For other relief and remedies just and equitable under
the premises.[17] (Underscoring supplied)
Respondent denied knowing Liza Jane’s
real address.[18] He denied
too having failed to comply with the procedural requirements in the declaration
of nullity case.[19] He in fact questioned complainant’s standing
to contest the decision of the trial court in the said case.[20]
This Court referred the case to the
Integrated Bar of the Philippines (IBP) for investigation, report, and
recommendation.[21]
The IBP investigating commissioner
recommended that respondent be suspended for three months for gross misconduct.[22] The IBP Board of Governors resolved to dismiss
the case, however, for lack of sufficient evidence.[23]
This Court upholds the resolution of
the IBP Board of Governors.
It is settled that:
x x x In view of the nature and consequences of a
disciplinary proceeding, observance of due process, as in other JUDICIAL determinations,
is imperative along with a presumption of innocence in favor of the lawyer. Consequently, the burden of proof is on
the complainant to overcome such presumption and establish his charges by clear
preponderance of evidence.[24] (Underscoring supplied)
To prove that respondent knew Liza
Jane’s true whereabouts all along, complainant alleged that respondent had been
sending allowances to Liza Jane and their children at
her residence.[25] Respondent
countered, however, that he had been sending allowances by depositing the same in
a bank in
On respondent’s alleged
non-compliance with the following provisions of the Rule on Declaration of
Absolute Nullity of Void Marriages and Annulment of Voidable Marriages which
took effect on March 15, 2003:[27]
x
x x x
Sec. 5.
Contents and form of petition.
– x x x
(4)
It shall be filed in six copies. The petitioner shall serve a copy of the
petition on the Office of the Solicitor General and the Office of the City or
Provincial Prosecutor, within five days from the date of its filing and submit
to the court proof of such service within the same period.
Failure
to comply with any of the preceding requirements may be a ground for immediate
dismissal of the petition.
x
x x x
Sec. 6. Summons.–The service of summons shall be
governed by Rule 14 of the Rules of Court and by the following rules:
(1)
Where the respondent cannot be located at his given address or his whereabouts
are unknown and cannot be ascertained by diligent inquiry, service of summons
may, by leave of court, be effected upon him by publication once a week for two
consecutive weeks in a newspaper of general circulation in the
Philippines and in such places as the court may order. In addition, a
copy of the summons shall be served on the respondent at his last known address
by registered mail or any other means the court may deem sufficient.
Sec. 8.
Answer. x x
x
(3)
Where no answer is filed or if the answer does not
tender an issue, the court shall order
the public prosecutor to investigate whether collusion exists between the
parties.
x
x x Sec. 19. Decision
x x x x
(2) The parties, including the Solicitor
General and the public prosecutor, shall be served with copies of the decision
personally or by registered mail. If the respondent summoned by publication
failed to appear in the action, the dispositive part of the decision shall be
published once in a newspaper of general circulation.
x x
x x
Sec. 23.
Registration and publication of the decree; decree as
best evidence. – (a) The prevailing
party shall cause the registration of the Decree in the Civil Registry where
the marriage was registered, the Civil Registry of the place where the Family
Court is situated, and in the National Census and Statistics Office. He shall
report to the court compliance with this requirement within thirty days from
receipt of the copy of the Decree.
(b)
In case service of summons was made by publication, the parties shall cause the
publication of the Decree once in a newspaper of general circulation.
(c)
The registered Decree shall be the best evidence to prove the declaration of
absolute nullity or annulment of marriage and shall serve as notice to third
persons concerning the properties of petitioner and respondent as well as the
properties or presumptive legitimes delivered
to their common children. (Emphasis supplied;
italics in the original)
The requirements in the above-cited Rule
that the petitioner should serve copies of the petition on the Office of the
Solicitor General and that of the Public Prosecutor; that service of summons by
publication on a respondent whose whereabouts are unknown be in a newspaper of
general circulation in the Philippines; and that the prevailing party cause the
registration and publication of the decree took effect only May 15, 2003, after
respondent filed the declaration of nullity case on January 9, 2003.
At the time respondent filed his
petition for declaration of the nullity of marriage, what applied was the Rules
of Court under which he was not required to file his petition in six copies and
to serve copies on the Office of the Solicitor General and that of the City or
Provincial Prosecutor. Neither was he
required to cause the registration and publication of the decree of
nullity.
Respondent did comply with the procedure
in the Rules of Court on service by publication on a respondent whose
whereabouts are unknown, which procedure requires only “publication in a
newspaper of general circulation and in such places and for such time as the
court may order,”[28] as
opposed to “a newspaper of general circulation in the Philippines and in
such places as the court may order” required by the above-quoted Section 6
(1) of the Rule On Declaration Of Absolute Nullity Of Void Marriages And Annulment
Of Voidable Marriages.
The requirement that the trial court
order the prosecutor to investigate whether collusion exists in case the
defendant in the declaration of nullity case files no answer is addressed to
the said court, not to the parties to the case nor to their counsel, absent any
showing of respondent’s involvement in the lapse in the prescribed procedure,
he cannot be faulted therefor.
Respecting
complainant’s claim that respondent did not cause the registration of the
decree of nullity of the marriage, he offered no proof, in accordance with Section
28, Rule 132 of the Rules of Court, which states:
SEC. 28. Proof of lack of record. A written statement signed by an officer having custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry. (Underscoring supplied),
in support thereof.
As for complainant’s prayer for the
setting aside of the decision in Civil Case No. 2243-40 and the reopening of
the case, the same may not be considered, not in the present case anyway. He is, parenthetically, not even a real party
in interest to the said case. His invocation
of the State’s interest in protecting the sanctity of marriage[29]
does not give him the standing to question the decision. By law, it is the prosecuting attorney or
fiscal or the Solicitor General who represents the interest of the State in
proceedings for the annulment or declaration of nullity of marriage.[30]
WHEREFORE, the
petition is DENIED. The dismissal
of the complaint by the Integrated Bar of the
SO ORDERED.
CONCHITA
CARPIO MORALES
Associate Justice
WE CONCUR:
REYNATO S.
PUNO
Chief Justice
|
(ON OFFICIAL LEAVE) LEONARDO A. QUISUMBING Associate Justice (ON OFFICIAL LEAVE) ANGELINA SANDOVAL-GUTIERREZ Associate Justice |
CONSUELO YNARES- Associate Justice ANTONIO T. CARPIO Associate Justice |
|
MA. ALICIA AUSTRIA-MARTINEZ Associate Justice |
RENATO C. CORONA Associate Justice |
|
ADOLFO S. AZCUNA Associate Justice MINITA V. CHICO-NAZARIO Associate Justice |
DANTE O. TINGA Associate Justice CANCIO C. GARCIA
Associate Justice |
|
PRESBITERO J. VELASCO, JR. Associate Justice |
ANTONIO EDUARDO B. NACHURA Associate Justice |
* On Official Leave.
[1] Sometimes
spelled “Estano.” Rollo¸
pp. 5, 8-10.
[2]
[3]
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13]
[14]
[15]
[16]
[17]
[18]
[19]
[20]
[21]
[22]
[23]
[24] Marcelo v. Javier, Sr., Adm.
Case No. 3248,
[25] Rollo,
p. 60.
[26]
[27] A.M. No.
02-11-10-SC. Salmingo’s
allegations are in rollo,
pp. 152-153, 156, 158.
[28] Rules
of Court, Rule 14, Section 14. Vide rollo,
p. 327.
[29] Rollo,
pp. 7, 60, 157-158.
[30] Vide
Administrative Code of 1987,
Book IV, Title III, Chapter 12, Section 35; Family
Code, Article 48; A.M. No. 02-11-20-SC, Sections 5(4), 5(18), 8(3),
9(1)-(3), 13(b), 18, 19 (2)-(3), 20 (2);
Republic v. Iyoy, G.R. No. 152577, September 21, 2005, 470 SCRA
508, 528-531.