Cahilog v. Andresan

THIRD DIVISION

[A.C. No. 10649. March 5, 2018.]

ROLANDO CAHILOG, complainant,vs. ATTY. ANDREI A. ANDRESAN AND ATTY. YUL BERNIE L. CURADA, respondents.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Third Division, issued a Resolution datedMarch 5, 2018, which reads as follows: HTcADC

"A.C. No. 10649 (Rolando Cahilog v. Atty. Andrei A. Andresan and Atty. Yul Bernie L. Curada) — The Court resolves to NOTE:

(1) the letter dated October 20, 2017 of the Integrated Bar of the Philippines (IBP) transmitting the documents pertaining to this case; and

(2) the Notice of Resolution No. XXII-2016-663 dated November 29, 2016 of the IBP Board of Governors resolving to adopt the findings of fact and recommendation of the investigating commissioner, and dismissing the complaint.

Before this Court is a Verified Disbarment Complaint 1 filed by Rolando Cahilog (complainant) against Atty. Andrei Arreza Andresan (Atty. Andresan) and Atty. Yul Bernie L. Curada (Atty. Curada), collectively referred to as respondents, for allegedly coaxing a certain AAA 2 in falsely charging him with violations of Republic Act (R.A.) No. 7610, 3 Section 4 (a) of R.A. No. 9995 4 and Section 4 of R.A. No. 9775. 5

Antecedents

The controversy began when the sex videos of complainant, a senior citizen and former councilor of Tandag City, were uploaded on the internet and began proliferating around Surigao del Sur in September 2013. The videos included some footages of complainant with a couple of women where one appears to be of tender age. News of these horrific sex scandal videos rapidly spread throughout the entire province to the point that the faces of the women involved therein were already recognized by some people in the locality.

On October 25, 2013, AAA, a minor, assisted by her guardian BBB, 6 executed a Judicial Complaint-Affidavit 7(complaint) against complainant for violations of R.A. Nos. 7610, 9995 and 9775. In the execution of the said complaint, Atty. Curada was the examining lawyer, who conducted and supervised the investigation of AAA; while Atty. Andresan acted as the subscribing officer.

On the same day, AAA's complaint was filed before the Office of the Provincial Prosecutor of Tandag City, Surigao del Sur with Atty. Andresan as the assisting counsel.

In AAA's complaint, she alleged, among others, that:

1) She and complainant met at a Christmas disco initiated by Tandag City's mayor;

2) She and complainant exchanged phone numbers and sent text messages to each other every now and then;

3) When she and complainant would see each other, she was always given money and, sometimes, rice up to four (4) kilos;

4) Complainant threatened to stop giving her gifts unless they engage in sexual intercourse;

5) She gave in to complainant's threats and had sexual intercourse with him as she cannot afford the gifts constantly being given to her;

6) She and complainant had sexual intercourse on November 26, 2012 inside the latter's house not knowing that there was a hidden camera covering their intimate acts; and

7) She was shocked, terrified and humiliated upon learning the news that videos of her sexual intercourse with complainant was circulating in the internet. 8

On January 2, 2014, Provincial Prosecutor Florito G. Cuartero (Prosecutor Cuartero) conducted a Clarificatory Hearing 9 wherein BBB was made to watch the video involving complainant's sex scandal. After watching the sex videos, BBB testified that: (a) the girl in the video was not AAA; and (b) in one occasion, she saw Atty. Curada handing a cellular phone and a P1,000.00-bill to AAA.

On January 3, 2014, Prosecutor Cuartero issued a Resolution 10 dismissing the criminal complaint ratiocinating that: (a) Atty. Curada did not even show the sex videos to AAA for her confirmation that she was indeed the woman in the video performing sexual acts with complainant; (b) BBB attested that the woman in the sex videos was not AAA; and (c) a thorough examination of the sex videos convinced him that none of the women appearing in those video footages was AAA.

On June 17, 2014, AAA assisted by her uncle CCC, 11 surprisingly issued a Sworn Statement 12 (with Prosecutor Cuartero as the subscribing officer) recanting her prior complaint claiming that: aScITE

1) Respondents persuaded her to issue the same affidavit even when they all knew that she was not the woman on the sex video with complainant;

2) She was enticed by respondents to execute the same affidavit against complainant in exchange for a cellular phone and P1,000.00;

3) Respondents persuaded BBB to pretend and act as her guardian so that the same affidavit would be admitted in court;

4) After the case for violations of R.A. Nos. 7610, 9995 and 9775 were dismissed by the Provincial Prosecutor, respondents asked her to run away and go to Surigao City to hide from complainant who became very angry and wanted her dead;

5) She went to hide in Surigao City but respondents did not make good of their promise to send her money; and

6) Her conscience could no longer take the supposed previous lies that she perpetrated.

On October 28, 2014, complainant filed this instant disbarment complaint alleging among others that: (a) respondents persuaded AAA to lie under oath even if all of them knew that she was not the girl in the sex videos; (b) respondents' ignominious actuations in bribing the poor and innocent girl were pure and simple displays of crookedness in their practice of law; and (c) respondents deserved to be punished with disbarment for their unethical actuations.

On April 16, 2015, respondents filed their Comment 13 arguing that:

1) Complainant desperately wanted to become a lawyer to the extent that, over the years, he practically engaged in the practice of law by filing all sorts of suits against anyone who earned his ire;

2) They were surprised when they suddenly received Prosecutor Cuartero's January 3, 2014 resolution which included a January 2, 2014 clarificatory hearing on BBB without their knowledge and receipt of any prior notice or subpoena;

3) Complainant has no credibility because he admitted in his Counter-Affidavit 14 filed before the Provincial Prosecutor that he had been engaging in extramarital sexual intercourse with several other women as his wife and daughter have been living in the United States and that he had been giving money, food and gifts to AAA as well as financing her tertiary studies;

4) Complainant's own witnesses in the proceedings before the Provincial Prosecutor executed their respective affidavits stating that they knew he was financing AAA's studies;

5) The surrounding circumstances clearly suggest that complainant "moved heaven and earth" just to persuade AAA to desist from pursuing her complaint;

6) BBB's allegation in the clarificatory hearing that respondents were the ones who maliciously secured AAA's testimony to pin complainant is also belied by her own claim that it was her neighbor Ruth Mantalaba Casiding who secured the same testimony;

7) That AAA was assisted by another guardian when she recanted her October 25, 2013 complaint and it raises suspicion as to the veracity of her June 17, 2014 sworn statement; and

8) BBB stated during the clarificatory hearing and before the issuance of the January 3, 2014 Resolution that AAA was already in Surigao City and could not have been advised at that time by respondents to hide from complainant.

On April 17, 2015, complainant filed his Reply 15 stating that: (a) he admits having filed numerous cases against certain individuals but they were not unfounded; (b) there is nothing wrong with showering AAA with money, food and gifts and "engag[ing] in extra marital sex within the bounds of [the] law;" 16 and (c) respondents are basically questioning the propriety of the Public Prosecutor's resolution in dismissing the criminal cases lodged against him.

On August 26, 2015, the Court issued a Resolution 17 referring this case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation or resolution.

The IBP Report and Recommendation

In the Report and Recommendation 18 dated August 1, 2016, the IBP Commission on Bar Discipline (Commission) recommended the dismissal of the complaint. It ratiocinated that: HEITAD

The changing of the stories and the testimonies of witnesses BBB and AAA, and notwithstanding the sworn affidavits of Complainant's witnesses are less believable than the sworn statements of the respondents who are lawyers and by witnesses for the respondents, Atty. Luisito C. Montero, as officer of the court are more credible and carries greater weight more believable than that of the other side, and that the probability of truth is on one side that on the other[, 19 ] are thus tilt to favor the respondents.

Other than the allegations in the complaint, the Complainant did not present further evidence, to establish ill motives on the part of the respondents-lawyers, as to entice, induce and fabricate allegations against Complainant Cahilog, for the purpose of compelling him to enter into amicable settlement for monetary consideration ass claimed by the Complainant. Allegations and innuendos are not proof. [']Well-established is the rule in administrative proceedings that the burden of proof rests on the complainant, who must be able to support and prove by substantial evidence his accusations against the respondent[.' 20 ]

The complainant have all the motives to move heaven and earth, to have the criminal cases against him dismissed for obvious reasons and the grave consequences in the event his indictment shall prosper, let alone the social stigma that the criminal cases will bring to the complainant and his family.

The power to disbar attorneys must always be exercised with great caution and retorted only in clear cases of misconduct which seriously affects the standing and character of the lawyer as an officer of the court and member of the Bar[. 21 ]

WHEREFORE, in view of the foregoing, it is respectfully recommended that the complaints against respondents Atty. Andrei Arreza Andresan and Atty. Yul Bernie L. Curada, be dismissed for lack of merit." 22

In its Resolution No. XXII-2016-663 23 dated November 29, 2016, the IBP Board of Governors' (Board) adopted the findings of facts and recommendations of the Commission dismissing the disbarment complaint. 24

Issue

Whether there is sufficient and established cause to disbar respondents for unethical behavior.

The Court's Ruling

The Court adopts and accepts the findings and recommendation of the Commission and the IBP Board.

The power to disbar or suspend ought always to be exercised on the preservative and not on the vindictive principle. 25 Disbarment is the most severe form of disciplinary sanction, and, as such, the power to disbar must always be exercised with great caution, only for the most imperative reasons and in clear cases of misconduct affecting the standing and moral character of the lawyer as an officer of the court and member of the bar. 26

In administrative cases for disbarment or suspension against lawyers, the quantum of proof required is clearly preponderant evidence and the burden of proof rests upon the complainant. 27 Preponderance of evidence is the weight, credit, and value of the aggregate evidence on either side and is usually considered to be synonymous with the term "greater weight of the evidence" or "greater weight of the credible evidence." 28 Under Section 1 of Rule 133 of the Rules of Court, in determining whether or not there is preponderance of evidence, the court may consider the following: (a) all the facts and circumstances of the case; (b) the witnesses' manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony; (c) the witnesses' interest or want of interest, and also their personal credibility so far as the same may ultimately appear in the trial; and (d) the number of witnesses, although it does not mean that preponderance is necessarily with the greater number. 29 Accordingly, this is subject to the evidentiary rule that parties must rely on the strength of their own evidence, not upon the weakness of the defense offered by their opponent. 30 Thus, when the evidence of the parties are evenly balanced or there is doubt on which side the evidence preponderates, the decision should be against the party with the burden of proof, according to the equipoise doctrine. 31 ATICcS

In this case, complainant failed to satisfy the requisite quantum of proof to establish the culpability of respondents as members of the Bar.

AAA's recantation

As a rule, a recantation or an affidavit of desistance is viewed with suspicion and reservation. 32 Jurisprudence has invariably regarded such affidavit as exceedingly unreliable because it can easily be secured from a poor and ignorant witness, usually through intimidation or for monetary consideration. 33 At most, the retraction is an afterthought which should not be given probative value. 34

However, a recantation does not necessarily cancel an earlier declaration and, like any other testimony, it is subject to the test of credibility based on the relevant circumstances and especially the demeanor of the witness on the stand. 35 Moreover, it should be received with caution as otherwise it could make solemn trial a mockery and place the investigation of truth at the mercy of unscrupulous witnesses. 36 Nevertheless, a recantation calls for a second hard look at the records of the case. 37

Here, complainant admitted that AAA was receiving money, food and gifts from him, as well as enjoying financial academic assistance. The admission alone is sufficient to form a conclusion that AAA may have incurred a debt of gratitude towards complainant. This debt of gratitude may very well be used by complainant to inject feelings of guilt and coerce a hapless and financially distressed victim such as AAA to grant him sexual favors. The Court is not unaware of the scheme of peddling sexual favors from the destitute in consideration or exchange of monetary or other necessary benefits. 38 Thus, it is of great likelihood that AAA may have recanted her complaint because she stands to lose the benefits which she may still receive from complainant. A witness is said to be biased when his or her relation to the cause or to the parties is such that he or she has an incentive to exaggerate or give false color to his or her statements, or to suppress or to pervert the truth, or to state what is false. 39 Besides, a closer look at AAA's June 17, 2014 sworn statement reveals that the same appears to be eerily similar to that of complainant's October 28, 2014 disbarment complaint against respondents. Therefore, in light of the circumstances surrounding AAA's recantation, the Court concludes that her June 17, 2014 sworn statement is wholly unworthy of credit because it has no probative value for being apparently dubious.

BBB's testimony is also

It is settled in jurisprudence that corroborative evidence is deemed necessary when there are reasons to warrant the suspicion that the witness falsified the truth or that his observation had been inaccurate. 40 Hence, in evaluating a testimony ridden with material inconsistencies, the courts may choose to believe only part of that testimony and reject the rest, depending upon the probabilities and improbabilities of the case. 41

In the case at bench, the Court finds it too hasty and premature to form a conclusion that respondents indeed induced AAA to file criminal charges against complainant. BBB herself intimated that she "do[es] not know if [AAA] was paid" although she allegedly saw Atty. Curada giving her a P1,000.00-bill and a cellular phone. Even if Atty. Curada's alleged act of giving AAA a P1,000.00-bill and a cellular phone is to be scrutinized and considered, it is highly improbable that the same act really happened considering that the records do not show any compelling motive on why respondents would be hell-bent on pressing charges against complainant. Since motive generally is referred to as the reason which prompts the one to engage in a particular activity, 42it becomes a crucial factor in testing a testimony's credibility when it strongly appears that the witness' narration of facts is probably tainted with incredulity. Plus, the records simply bear no other corroborating evidence to establish that respondents indeed bribed AAA into filing criminal charges against complainant. Therefore, since no concrete indication of ill-motive can be ascribed to respondents, the Court deems it fitting to reject the part of BBB's testimony regarding AAA's receipt of a P1,000.00-bill and a cellular phone from Atty. Curada and declare the same as implausible.

WHEREFORE, the Court ADOPTS and ACCEPTS the August 1, 2016 Report and Recommendation of the Integrated Bar of the Philippines-Committee on Bar Discipline. The complaint against Atty. Andrei Arreza Andresan and Atty. Yul Bernie L. Curada is hereby DISMISSED. TIADCc

SO ORDERED."

Very truly yours,

(SGD.) WILFREDO V. LAPITANDivision Clerk of Court

 

Footnotes

1.Rollo, pp. 1-8.

2. The real name of the victim is redacted pursuant to Amended Administrative Circular No. 83-2015 (September 5, 2017).

3. An Act Providing for Stronger Deterrence and Special Protection against Child Abuse, Exploitation and Discrimination, and for Other Purposes.

4. An Act Defining and Penalizing the Crime of Photo and Video Voyeurism, Prescribing Penalties Therefor, and for Other Purposes.

5. An Act Defining the Crime of Child Pornography, Prescribing Penalties Therefor and for Other Purposes.

6. The real name of the guardian is redacted pursuant to Amended Administrative Circular No. 83-2015 (September 5, 2017).

7.Rollo, pp. 9-12.

8.Id.

9.Id. at 18-20.

10.Id. at 21-22.

11. The real name of the relative is redacted pursuant to Amended Administrative Circular No. 83-2015 (September 5, 2017).

12.Rollo, pp. 23-24.

13.Id. at 46-54.

14.Id. at 71-83.

15.Id. at 89-102.

16.Id. at 181.

17.Id.

18.Rollo, pp. 245-255.

19.Reyes v. Century Canning Corporation, 626 Phil. 470 (2010).

20.Monticalbo v. Maraya Jr., 664 Phil. 1 (2011).

21.Siervo v. Infante, 165 Phil. 36 (1976). See Amaya v. Tecson, 491 Phil. 111 (2005); Buado v. Layag, 479 Phil. 808 (2004); Gerona v. Datinggaling, 446 Phil. 203 (2003); Zaguire v. Castillo, 556 Phil. 861 (2003); Santos, Sr. v. Beltran, 463 Phil. 373 (2003). Cited in Legal Ethics Annotated by Dean Ernestoo L. Pineda, 2009 Edition, Central Book Store, p. 397.

22.Rollo, pp. 254-255.

23.Id. at 243-244.

24.Id. at 241-255.

25.Advincula v. Atty. Macabanta, 546 Phil. 431, 447 (2007).

26.Kara-an v. Atty. Pineda, 548 Phil. 82, 85 (2007).

27.Zuzuarregui, Jr. v. Atty. Soguilon, 589 Phil. 64, 71 (2008).

28.Spouses Ramos v. Obispo, et al., 705 Phil. 221, 230 (2013).

29.Francia v. Atty. Abdon, 739 Phil. 299 (2014); citing Aba v. De Guzman, Jr., id. at 308-309.

30.Heirs of Pedro De Guzman v. Perona, et al., 636 Phil. 663, 672 (2010).

31.Atty. Ecraela v. Atty. Pangalangan, 769 Phil. 1, 15 (2015).

32.People v. Salazar, 648 Phil. 520, 530 (2010).

33.People v. Estibal, 748 Phil. 850, 865 (2014).

34.People v. P/Supt. Lamsen, et al., 721 Phil. 256, 260 (2013).

35.Santos v. People, 443 Phil. 618, 626 (2003).

36. People v. Dalabajan, et al., 345 Phil. 944, 954-955 (1997).

37. Cf. People v. Ballabare, et al., 332 Phil. 384, 399 (1996).

38. See People v. Jalosjos, 421 Phil. 43-94 (2001).

39. Tarapen v. People, 585 Phil. 568, 585-586 (2008).

40. See People v. Mallari, 369 Phil. 872, 882 (1999).

41. Cf. People v. Tan, et al., 556 Phil. 389, 398 (2007).

42. Cf. People v. Delim, et al., 444 Phil. 430, 448 (2003).