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[A.M. No. 4442. July 24, 2000]

LUCIEN TRAN VAN NGHIA vs. ATTY. EDUARDO R. CENIZA, et al.

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUL 24 2000.

A.M. No. 4442 (Lucien Tran Van Nghia v. Attys. Eduarado R. Ceniza and Moses Clarence M. Trocio.)

Pursuant to the report and recommendation, dated November 28, 1998, of Investigating Commissioner Renato G. Cunanan, the Integrated Bar of the Philippines, in its Resolution No. XIII-99-38, dated February 23, 1999, dismissed the complaint for disbarment filed by Lucien Tran Van Nghia against Atty. Eduardo R. Ceniza and Atty. Moses Clarence M. Trocio. The IBP found the allegations of gross negligence, gross incompetence, serious misconduct, and abandonment of duties against respondents "totally devoid of merit or substance."

The decision of the IBP was noted by this Court in its resolution dated April 28, 1999. It appears that complainant filed a motion for reconsideration, but his motion was denied by the IBP on the ground that there was no compelling "reason to reverse the finding therein, {and} moreover, the pleading is improper as the remedy of the complainant is to file the appropriate motion with the Supreme Court within fifteen (15) days from receipt of notice of said Decision pursuant to �12(a) of Rule 136-B."

Hence, this Ex Parte Motion for an Appeal to Due Process. Complainant avers that he was denied the right to counsel as the IBP failed to appoint one who could have advised him to file a petition with this Court within fifteen (15) days from receipt of IBP Resolution No. XIII-99-38. Complainant also alleges that he has been denied due process because he was not given a copy of the report of Investigating Commissioner Cunanan. Moreover, he avers, the resolution of the IBP is void because it does not specify the reasons for the dismissal of his complaint. Complainant further contends that the failure of respondents, who were his former counsels, to appeal from the dismissal of the criminal cases in which he was the complainant constitutes a violation of P.D. No. 1829 penalizing obstruction in the apprehension and prosecution of criminal offenders.

Although Rule 139-B, �12(c) does not mention motions for reconsideration, there is nothing in it which suggests that such motions are prohibited. On the contrary, the filing of such motion should be encouraged to afford the IBP an opportunity to correct any error it may have committed. (Halimao v. Villanueva, 253 SCRA 1 (1996)) In any case, the Court has resolved to treat the instant Ex Parte Motion for an Appeal to Due Process as a petition for review within the contemplation of Rule 139-B, � 12(c). The Court finds the petition to be without merit for the following reasons:

First. It is not the duty of the IBP to appoint counsel to assist complainant as a matter of course. What Rule 139-B, �7 provides is that "the IBP Board of Governors shall appoint a suitable member of the Integrated Bar to assist the complainant or the respondent during the investigation in case of need for such assistance." Complainant has not, however, asked for the appointment of counsel to assist him.

Second. It is not true that the IBP failed to state the basis for its dismissal of complainant's complaint. The IBP adopted by reference the findings of its Investigating Commissioner, as is clear from the statement in Resolution No. XIII-99-38 that the report and recommendation of the Investigating Commissioner forms "part of this Resolution/Decision as Annex 'A.'" The validity of a similar practice has been upheld in Indias v. Philippine Iron Mines, 101 Phil. 297 (1957). As complainant was served a copy of Resolution No. XIII-99-38 on November 8, 1999, his bare allegation that he was not served a copy of the report and recommendation of the Investigating Commissioner cannot be given credence.

Third. In any case, the instant petition has no merit. The complaint in this case stems from the fact that respondents did not appeal from the decision of the Court of Appeals in CA-G.R. CR No. 11162 acquitting the accused therein of qualified trespass to dwelling and the order of the Metropolitan Trial Court, Branch 6, Manila in Criminal Case No. 133536-CR dismissing the said case for less serious physical injuries. As pointed out by Investigating Commissioner, respondents, as private prosecutors on behalf of complainant, could not have appealed from the decisions in those cases without placing the accused in double jeopardy.

For the foregoing reasons, complainant's petition is DENIED.

Very truly yours,

(Sgd.) TOMASITA M. DRIS

Clerk of Court

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